Barber Bros. Contracting Co. v. Cuccia

734 So. 2d 820, 98 La.App. 1 Cir. 0675, 1999 La. App. LEXIS 1084, 1999 WL 216604
CourtLouisiana Court of Appeal
DecidedApril 1, 1999
Docket98 CA 0675
StatusPublished
Cited by15 cases

This text of 734 So. 2d 820 (Barber Bros. Contracting Co. v. Cuccia) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barber Bros. Contracting Co. v. Cuccia, 734 So. 2d 820, 98 La.App. 1 Cir. 0675, 1999 La. App. LEXIS 1084, 1999 WL 216604 (La. Ct. App. 1999).

Opinion

734 So.2d 820 (1999)

BARBER BROTHERS CONTRACTING COMPANY
v.
Donald R. CUCCIA.

No. 98 CA 0675.

Court of Appeal of Louisiana, First Circuit.

April 1, 1999.
Writ Denied June 18, 1999.

*821 Nicholas Canaday, III, Baton Rouge, Counsel for plaintiff/appellant, Barber Brothers Contracting Co.

Albert A. Bensabat, III, Hammond, Counsel for defendant/appellee, Donald R. Cuccia.

Before: CARTER, C.J., SHORTESS and WHIPPLE, JJ.

WHIPPLE, J.

This is an appeal by plaintiff, Barber Brothers Contracting Company ("Barber Brothers"), from a judgment ordering it to pay defendant, Donald R. Cuccia, workers' compensation benefits. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 7, 1995, Cuccia injured his left knee while in the course and scope of his employment as an equipment operator and pipe layer for Barber Brothers. Following the accident, Cuccia was treated by Dr. J.L. Fambrough, an orthopedic surgeon, who performed arthroscopic surgery on January 25, 1996.

On December 4, 1996, Barber Brothers filed a disputed claim for compensation, seeking a declaration that it was not responsible for any further workers' compensation benefits to Cuccia and that Cuccia was not entitled to a change in treating physicians. Cuccia reconvened, seeking permanent partial disability benefits for a scheduled loss pursuant to LSA-R.S. 23:1221(4) and for further medical treatment.

Following trial, the workers' compensation judge rendered judgment, finding that Cuccia was not entitled to a change in physicians, but ordering Barber Brothers to pay Cuccia $7,269.57 in permanent partial disability benefits for a scheduled loss to the claimant's left leg. From this judgment, Barber Brothers appeals.

CUCCIA'S ENTITLEMENT TO PERMANENT PARTIAL DISABILITY BENEFITS

Barber Brothers contends that the workers' compensation judge erred in *822 awarding Cuccia benefits for a permanent partial disability to the left leg. It contends that while Dr. Fambrough assigned a 35% permanent partial disability to his left leg, Cuccia failed to prove that the December 7. 1995 work accident and resulting surgery caused or contributed to his disability, rather than an earlier 1985 injury to his left knee.

Permanent partial disability benefits are addressed in LSA-R.S. 23:1221(4). This section provides scheduled compensation for anatomical loss of use or amputation of various body members at a percentage of previous weekly earnings for a specific number of weeks. To qualify for benefits for loss of use, the loss of physical function must be greater than 25% as established in the American Medical Association "Guides to the Evaluation of Permanent Impairment." LSA-R.S. 23:1221(4)(q). Thus, if the permanent disability to an employee's leg is greater than 25%, the employee is entitled to sixty-six and two-thirds percent of his pre-injury wages for 175 weeks multiplied by the percentage of disability to the leg. LSA-R.S. 23:1221(4)(h) and (o).

The law is well established that an employer takes an employee as it finds him. The fact that disease alone might have disabled the employee in its ordinary course of progress is not the inquiry. Employers do not "pay for every flare-up"; but they must compensate claimants who prove a disabling aggravation of prior, asymptomatic conditions as a result of an on-the-job injury. Duncan v. State, Department of Transportation and Development, 556 So.2d 881, 886-887 (La.App. 2nd Cir.1990)

A court of appeal may not overturn a judgment of the workers' compensation judge absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Before an appellate court may reverse a factual determination, such as a finding of disability, it must find from the record that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong. See Kennedy v. Johnny F. Smith Trucking, 94-0618, p. 2 (La. App. 1st Cir.3/3/95); 652 So.2d 526, 528.

The record reveals that on March 14, 1985, Cuccia injured his left knee when hit by a car. As a result of that accident, Cuccia underwent reconstructive knee surgery in 1986, to repair ligament damage. Cuccia was off of work for approximately three years following the March 1985 knee injury, but subsequently was able to engage in heavy labor after recovering from the 1986 surgery. Moreover, although his left leg was atrophied, indicating that he favored it, Cuccia stated that he had not experienced any further problems with his left knee and had been able to perform his job duties without any problems. Importantly, Cuccia was not assigned any disability or impairment rating to his left leg following the 1985 knee injury and resulting surgery.

In contrast, as noted by the workers' compensation judge in his reasons for judgment, which we attach hereto as "Appendix A" and adopt as our own, Dr. Fambrough assigned Cuccia a 35% permanent partial impairment to the left leg following Cuccia's 1995 work injury and resulting arthroscopic surgery. When subsequently asked by Barber Brothers to break down this impairment rating between the 1985 and 1995 knee injuries, Dr. Fambrough opined that Cuccia's 1985 knee injury had predisposed him to the current injury, but felt that he could not delineate the portion of the impairment percentage attributable to the original and subsequent injuries. Plaintiff contends Cuccia can not establish his entitlement to benefits. We disagree.

On this basis, as noted by the workers' compensation judge, the record shows that Cuccia undisputedly was able to perform heavy duty work prior to the accident with Barber Brothers, and following the accident, he could not perform at the same level. In fact, Cuccia left his employment with Barber Brothers because of his inability *823 to perform his usual job duties, and he went through several jobs in the subsequent six-month period in an attempt to find employment which fit within his new physical limitations. On the record before us, we find no error in the conclusion that Cuccia had sustained an employment related injury for which scheduled loss benefits were due by plaintiff as a result of the 1995 accident. We find no error by the workers' compensation judge in attributing Cuccia's permanent partial impairment to the 1995 work accident, based on the lay and medical testimony contained herein.

In particular, while Dr. Fambrough was unable to delineate the specific percentages of disability between the two injuries, he recognized that it was questionable whether any injuries or conditions attributable to the 1985 accident were functionally disabling. Indeed, as Dr. Fambrough noted, Cuccia "was apparently gainfully employed and aggravated this condition." Considering the record as a whole, we conclude that a reasonable factual basis exists in the record to support the workers' compensation judge's factual findings. Furthermore, those findings are not manifestly erroneous or clearly wrong and will not be overturned by this court.

ENTITLEMENT TO FUTURE MEDICAL BENEFITS

Barber Brothers further contends that the workers' compensation judge erred in failing to declare that Barber Brothers is not responsible for any of Cuccia's future medical needs. Barber Brothers asserts that Cuccia's work injury of December 7, 1995, has fully healed and that any future need for medical treatment would relate solely to Cuccia's 1985 knee injury.[1]

An injured employee is entitled to payment of medical expenses made necessary by a work-related accident. LSA-R.S.

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Bluebook (online)
734 So. 2d 820, 98 La.App. 1 Cir. 0675, 1999 La. App. LEXIS 1084, 1999 WL 216604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-bros-contracting-co-v-cuccia-lactapp-1999.