Robert Gay VS Georgia-Pacific
Annotate this Case
Download PDF
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1892 ROBERT GAY VERSUS PACIFIC GEORGIA On Appeal from the v w U fFce of Workers Compensation Administration District 5 State of Louisiana Docket No 11 06582 Honorable Jason G Ourso Judge Presiding Charles R Davoli Davoli Krumholt Price Attorney for Appellant Plaintiff Baton Rouge LA Robert Gay Charles W Farr Attorney for Mandeville Appellee Defendant LA Pacific Georgia Consumer Operations LLC BEFORE PARRO WELCH AND DRAKE J7 Judgment rendered oCT 2 d 2 PARRO J In this workers compensation suit Robert Gay appeals a judgment in favor of his former employer Georgia Consumer Operations LLC G sustaining its Pacific P exception raising the objection of prescription and dismissing his claims For the following reasons we affirm the judgment FACTUAL AND PROCEDURAL BACKGROUND Robert Gay worked for G for thirty years P seven At the time of the incident that triggered his workers compensation claims he was working the night shift as a control room operator Operator A in the Power and Utilities Department a position he had held for seven years One of his duties in that job was to train other employees to handle that job in the event of illness death retirement or any other situation creating a temporary or permanent vacancy in the position Sometime in July 2010 he was assigned to train Mike Ramsey as an Operator A On August 28 2010 Gay reported to work about 5 p and about an hour later Gay Ramsey and the other employees 30 m in the unit met for a briefing with their shift leader In the course of that meeting without any provocation Ramsey made some racially charged statements that profoundly affected Gay emotionally and mentally Gay was unable to continue training Ramsey during the rest of that shift he said Ramsey comments just shut him down s so he couldn think and was too upset to function t He experienced a significantly elevated blood pressure and had difficulty completing his shift In order to comprehend Gay reaction it is necessary to recount some of his s personal history Shortly before this occurrence Gay had personally discovered the body of his wife of fifteen year5 after her sudden and unexpected death Also in October 1998 Gay elderly parents had been kidnapped from their home and driven in s their car to the levee in downtown Baton Rouge where they were murdered and their bodies burned in their car The comments that so upset Gay started with Ramsey talking out of the clear 1 Gay disputed claim for compensation named Georgia as his former employer In its answer s Pacific the company stated that its correct name is Georgia Consumer Operations LLC Pacific 2 blue sky about the plight of poor uneducated black people and how there were now more black people on death row than there were slaves before the Civil War Ramsey contended that half of the black men on death row were innocent but it was easier for police to convict an illiterate black man Then looking directly at Gay Ramsey said the black man who had been convicted of murdering his parents was innocent and it was actually a white man who had committed the crime He said the black man had been easy to convict because he had a mental disability caused by a shooting incident that injured his head Although Ramsey was known for arguing and indulging in racial diatribes such that Gay and other employees tried to avoid engaging him in conversation his comments had never been so pointedly directed at Gay concerning such a personally sensitive matter The night shift during which this occurred was Gay last scheduled shift for the s week He was next scheduled to work four days later However aithough Gay thought his emotional reaction would pass he couldn shake the feeling so he called in and t asked for an emergency week vacation When that week was about over and he still s was not feeling any better he took another week of vacation On September 7 2010 he visited his family physician Dr Stephen Speeg Dr Speeg notes recorded s complaints of elevated blood pressure a very stressful situation at work and a diagnosis of anxiery and depression He prescribed Lexapro an anti and depressant recommended that Gay take some additional time off work Unfortunately Gay s emotional problems were exacerbated when on September 11 2010 his one month old grandchild died from sudden infant death syndrome Gay returned to Dr Speeg on September 17 2010 with continued complaints of high blood pressure depression and anxiety At some point Gay spoke with G personnel director and asked if Ramsey s P could be reassigned to another unit but Gay was told that this could not be done his later efforts to find other openings within the company were unsuccessful and G P made no offers to accommodate him in another position On October 1 2010 Gay began seeing a psychiatrist Dr Marc Zimmerman On 3 his second visit on October 12 Dr Zimmerman diagnosed him with a major depressive disorder and anxiety disorder prescribed two different anti medications and depressant disabled him from returning to work at G Zimmerman continued treating him every P two weeks and eventually once a month Gay did not return to work at any time after August 29 2010 Rather than file a workers compensation claim Gay applied for short term disability benefits through a MetLife Insurance policy funded by G claiming a work P related disability beginning August 28 2010 He began receiving weekly benefits of 669 per week effective October 1 2010 and continuing for six months Eventually in August 2011 seeing no possibility of returning to G he retired P Gay filed his disputed claim for compensation on September 7 2011 P G answered the petition and filed an exception raising the objection of prescription After conducting discovery including the depositions of Gay and Zimmerman a hearing on the exception was scheduled for June 15 2012 Following the hearing the workers compensation judge sustained the exception and dismissed Gay claims in a judgment s signed June 25 2012 This appeal followed APPLICABLE LAW The Louisiana Workers Compensation Act the Act provides coverage to an employee for personal injury caused by an accident arising out of and in the course of his employment LSA 23 An employee must establish that the accident S A R 1031 was employment related that the accident caused the injury and that the injury caused the disability Hirstius v Tro Serv LLC 11 La App lst Cir icare 1080 11 21 12 80 So 1215 1216 3d AccidenY is defined in LSA 23 as an unexpected or unforeseen S 1 R 1021 actual identifiable precipitous event happening suddenly or violently with or without human fault and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration A claimant s Z This amount exceeded what he could have obtained in workers compensation indemnity benefits which would have paid only 584 per week 4 disability is presumed to have resulted from an accident if before the accident the injured person was in good health but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards provided there is sufficient medical evidence to show a reasonable possibility of causal connection between the accident and the disabiing condition Walton v Normandv Village Homes Ass Inc 475 So 320 324 La 1985 n 2d Mental injury or illness resulting from work stress shall not be considered related a personal injury by accident arising out of and in the course of employment and is not compensable under the Act unless the mental injury was the result of a sudden unexpected and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence S8 R1021 LSA 23 To prove a matter by clear b and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable that is much more probable than its nonexistence Braud v First Nat I Bank of Gonzales 2106 98 La App lst Cir 00 23 6 763 So 2d 829 833 A claimanYs own testimony that he experienced debilitating depression after a work related accident combined with the testimony of family members or co and a workers psychologist can constitute clear and convincing evidence to support a finding that the claimant has suffered a mental injury as a result of the accident See Bethley v Keller Const 01 La App 1st Cir 12 836 So 397 404 n writ denied 03 1085 02 20 2d 9 0228 La 4841 So 792 see also LSA 23 03 21 2d S 8 R 1021 d An employee claiming temporary total disability or permanent total disability must prove by clear and convincing evidence unaided by any presumption of disability that he is physically unable to engage in any gainful occupation whether or not the same type of work he was engaged in at the time of the injury See S R LSA c 1 1221 23 and 2 An employee is entitled to receive supplemental earnings c benefits if he sustains a work injury that results in his inability to earn ninety related percent or more of his average injury pre wage S R LSA i a 3 1221 23 For supplemental earnings benefits the employee bears the burden of proving by a 5 preponderance of the evidence that the work injury resulted in his inability to related earn that amount under the facts and circumstances of the individual case Lafleur v Alec Elec 04 La App lst Cir 12 898 So 474 478 writs denied 05 0003 04 30 2d 0276 and 0277 La 4 898 So i287 and 1288 05 8 2d Under the applicable version of LSA 23 claims are barred unless SA R 1209 filed 1 within one year from the date of the accident 2 within one year from the last compensation payment for total disability or within three years from the last payment for partial disability or 3 within one year from the time the injury develops if not immediately manifested but in any event no more than two years after the accident Iverstine v Albemarle Corp 02 La App lst Cir 7 852 So 2555 03 2 2d 492 497 writ denied 03 La 12 860 So 1154 2583 03 2d Generally speaking development of the injury actually means development of the disability and disability marks the time from which it is clear that the employee is no longer able to perform the duties of his or her employment in a satisfactory manner SwearinQen v Air Products Chem Inc 481 So 122 124 La 1986 An employee who suffers a work 2d related injury that immediately manifests itself but only later develops into a disability has a viable cause of action until one year from the development of the disability rather than from the first appearance of symptoms or from the first date of treatment Winford v Conerly Corq 04 La 3 897 So 560 564 Slocum v Northlake 1278 05 11 2d Driveline 12 La App ist Cir 4 117 So 171 180 writ denied 13 1572 13 26 3d 1192 La 9 13 13 3d So If the facts alleged in a petition do not show that a claim has prescribed the burden is on the party raising the objection of prescription to prove it Conversely if a claim is prescribed on the face of the pleadings the burden is on the plaintiff to show that prescription has not tolled because of an interruption or suspension of prescription Brister v GEICO Ins O1 La App lst Cir 3 813 So 614 616 At the 0179 02 28 2d trial of a peremptory exception evidence may be introduced to support or controvert any of the objections pleaded when the grounds thereof do not appear from the 6 petition LSA art 931 Boudreaux v Angelo Iafrate Const 03 La App P C 2260 ist Cir 2 895 So 596 598 05 4 2d In a workers compensation case as in other cases the appellate court review s of factual findings is governed by the manifest error or elearly wrong standard Smith v Louisiana Dept of Corrections 93 La 2 633 So 129 132 305 94 28 2d The part two test for the appellate review of facts is 1 whether there is a reasonable factual basis in the record for the finding of the trial court and 2 whether the record establishes that the finding is not manifestly erroneous Mart v Hill 505 So 1120 2d 1127 La 1987 Thus if there is no reasonable factual basis in the record for the trial s court finding no additional inquiry is necessary to conclude there was manifest error However if a reasonable factual basis exists an appellate court may set aside a trial s court factual finding only if after reviewing the record in its entirety it determines the trial court finding was clearly wrong See Stobart v State through Dept of Trans s and Dev 617 So 880 882 La 1993 If the factual findings are reasonable in light 2d of the record reviewed in its entirety the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Sistler v Liberty Mut Ins Co 558 So 1106 1112 La 1990 2d When there are two permissible views of the evidence the fact finder choice between s them cannot be manifestly erroneou Bolton v B E K Const 01 La App lst 0486 Cir 6 822 So 29 35 02 21 2d ANALYSIS In his first assignment of error Gay contends the court misapplied the burden of proof and did not properly analyze his claim of a developing disability Gay disputed s claim for compensation filed on September 7 disability illness injury as September 7 2010 2011 shows the date of On the second page of his claim he indicates that he is claiming a developmental injury under LSA 23 with S A R 1209 the incident of trauma occurring August 28 2010 and the subsequent onset of inental disability on September 7 2010 Because the latter date is shown as the disability date 7 I he argues that the facts alleged in his petition do not show that his claim has prescribed and therefore the burden of proof is on the parly raising the objection of prescription He further contends that because there are conflicting dates on this form and on other documents presented at the hearing there should have been a full evidentiary hearing to determine the actual date of the disputed disability if any However when the grounds for kne ob of prescription are not clear from ection the petition evidence may be introduced to support the objection In this case although G did not introduce any evidence in support of its objection Gay introduced P considerable evidence The first item was his disputed claim for compensation which showed August 28 2010 as the date of the traumatic incident and September 7 2010 I as the onset of disability Attached to this claim was a copy of his application for short term disability benefits from MetLife That application states the date disability began was August 28 2010 In the medical records from Dr Speeg office the notations s concerning Gay September 7 2010 visit reflect that Gay was complaining of his blood s pressure rising due to a very stressful situation at work involving the racially harassing statements made to him concerning the kidnapping and murder of his parents Dr s Speeg impression after this visit was that Gay blood pressure needed to be brought s under control and that he was suffering from situational anxiety and depression In s Gay deposition which was also introduced as evidence he stated that his last day of work at G was the morning of August 29 2010 and he acknowledged that this was P the day his disability began right after the incident with Ramsey when his shift ended Gay also said that Dr Zimmerman told him that he had been disabled since immediately after that incident Gay stated that he had to get help from a co to worker complete his shift and that he was unable to perform his job duties because he was too upset and could not function Before his next scheduled shift he called his supervisor and asked for an emergency week vacation Before that time elapsed he s requested an additional week of vacation time Gay said that during those two weeks he could not have gone back to work at G nor could he have gone back at any time P 8 prior to his retirement He began seeing Dr Zimmerman on October 1 2010 Dr snotes from the initial consultation describe the statements made to Gay Zimmerman by Ramsey as the trigger for his elevated blood pressure and feelings of anxiety Dr sdeposition was also introduced as evidence In it Dr Zimmerman stated Zimmerman that Gay was having a difficult time coping with a soliloquy of events that was triggered by this incident which involved the murder of his parents his wife death s and a few other things He said that although Gay had been functional to this point he just kind of broke as a result of it Gay he felt that he could Dr Zimmerman said that when he first saw working not continue in the same environment Dr Zimmerman diagnosed his condition as acute stress disorder that eventually progressed to posttraumatic stress disorder all of which was the result of this single traumatic incident with Ramsey He said that the onset of Gay disability was his last day of s employment stating well if we track it back and look at the actual progenitor of the triggering mechanism we would have to say it even before he left the room was immediately after the incident Dr Zimmerman said the comments made by Ramsey had an immediate psychological effect on Gay that prevented him from continuing to perform his job No matter which party bore the burden of proof in this case the evidence provides strong support for the trial court conclusion that Gay claim for workers s s compensation benefits was prescribed He did not return to work after the traumatic incident with Ramsey and he and his doctor stated that he could not have returned to work at that time Although his disability was not labeled as such until a later visit to his physician the facts show that he was actually disabled from working immediately following that incident His disputed claim for compensation was filed more than a year after the incident during which time he did not receive any workers compensation benefits payments that might have interrupted the running of prescription on his claim We find that there was a reasonable factual basis in the record for the finding of the workers compensation judge that Gay claim had prescribed and the record as a s 9 whole establishes that the finding is not manifestly erroneous However Gay also contends that the MetLife short disability payments term should be equated to the payment of workers compensation benefits and under LSA S 1209 R 23 should interrupt the running of prescription on his claim until a year 2 A after those payments ceased There is no statutory authority for that argument This court cannot create a new basis for interruption of the running of prescription only the legislature has that authority Therefore we find no merit in this argument CONCWSION For the reasons stated above we affirm the June 25 2012 judgment of the workers compensation judge and assess all costs of this appeal to Robert Gay AFFIRMED 10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
