Bart v. City of New Orleans-Fire Department

661 So. 2d 1022, 94 La.App. 4 Cir. 2686, 1995 La. App. LEXIS 2125, 1995 WL 518783
CourtLouisiana Court of Appeal
DecidedJuly 26, 1995
DocketNo. 94-CA-2686
StatusPublished

This text of 661 So. 2d 1022 (Bart v. City of New Orleans-Fire Department) 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
Bart v. City of New Orleans-Fire Department, 661 So. 2d 1022, 94 La.App. 4 Cir. 2686, 1995 La. App. LEXIS 2125, 1995 WL 518783 (La. Ct. App. 1995).

Opinion

UARMSTRONG, Judge.

This is a worker’s compensation case. The plaintiff, Larry Bart, is a Vietnam veteran and was a New Orleans fireman. He suffered a back injury in 1990. Some time earlier, he had been the subject of a transfer within the New Orleans Fire Department, and subject to a disciplinary proceeding because of some type of conflict with co-workers. After trial, the Hearing Officer of the Office of Worker’s Compensation determined that the plaintiff was temporarily totally disabled due to Post Traumatic Stress Disorder (“PTSD”). It is undisputed that the plaintiff has PTSD which has its ultimate origin in the plaintiffs experience in Vietnam. However, the hearing officer determined that the temporary total disability resulted when the PTSD “was aggravated and made symptomatic by the 1990 back injury.” The Hearing Officer also found that the transfer of the plaintiff and the disciplinary action against him may have contributed to the PTSD but that “the back injury is the primary triggering factor of PTSD.”

The employer, the City of New Orleans (Fire Department), appeals and raises four issues on appeal. First, the City argues that the Hearing Officer failed to apply the “clear and convincing evidence” standard made applicable to this type of injury by La.R.S. 23:1021(7)(e) and, instead, applied the usual “preponderance of the evidence” standard. Second, |2the City argues that the plaintiff failed to prove that his disability arose from an “accident” as the term “accident” is defined in La.R.S. 23:1021(1). Third, the City argues that the plaintiff failed to prove that his disability is related to his employment as opposed to his Vietnam experiences. Fourth, the City argues that, if the Hearing Officer’s determination is affirmed, then the ease should be remanded to allow the City to introduce evidence to establish a pension offset under La.R.S. 23:1225(c)(l).

As to the City’s first argument, that the Hearing Officer erred by failing to apply the clear and convincing evidence standard, and by instead applying the usual preponderance of the evidence standard, we first turn to the Hearing Officer’s Reasons for Judgment. Nowhere in the Reasons for Judgment does the Hearing Officer expressly state whether she is applying the clear and convincing evidence standard or, instead, the preponderance of the evidence standard.

However, the Reasons for Judgment do include quotations from or summaries of the holdings of a number of published appellate court and Supreme Court decisions regarding worker’s compensation. As to two of those cases, Bernard O’Leary Bros. Signs, Inc., 606 So.2d 1331 (La.App. 3rd Cir.1992), and Hayes v. Boh Bros Construction Co., 606 So.2d 899 (La.App. 4th Cir.1992), the Reasons for Judgment summarize or quote holdings that, in worker’s compensation eases, mental injuries must be proven by a preponderance of the evidence. Based upon that, the City argues that the Hearing Officer must have applied the preponderance of the evidence standard.1

We do not think that the Hearing Officer applied the preponderance of the evidence standard. The City informed the Hearing Officer at trial, and with citations and quotations in its post-trial brief, that the clear and convincing evidence standard is applicable to the plaintiffs PTSD mental injury and the plaintiff did not dispute that. With the City bringing the clear and convincing evidence [1024]*1024standard to the Hearing Officer’s attention, and no dispute by the plaintiff, it seems unlikely that the Hearing Officer would err as to this point. Also, has there was no dispute as to the issue, there was no particular reason for the Reasons for Judgment to include a discussion of the standard of proof to be applied.

The Reasons for Judgment, in quoting and summarizing the holdings of the Bernard and Hayes decisions, are broadly inclusive, but the focus of the Reasons for Judgment seems to be the elements that must be proven by a worker’s compensation claimant. In other words, it appears that the Hearing Officer was relying upon the Bernard and Hayes decisions with regal’d to what must be proven rather than for the standard of proof.

In any case, we are convinced that, if the Hearing Officer did err as to the standard of proof, the error was harmless in the case. Initially, we see from the Reasons for Judgment that the Hearing Officer saw the evidence on the issue which turned out to be dispositive, the causation of the plaintiffs PTSD, as one-sided. Thus, if the Hearing Officer were to have applied the clear and convincing evidence standard (assuming she did not), it would not have changed the Hearing Officer’s ultimate decision. Also, our own independent review of the record, discussed below in connection with the City’s third argument, persuades us that the plaintiff did prove his case below by clear and convincing evidence.

The City’s second argument is that the plaintiff has failed to prove that his disability is the result of an “accident” within the meaning of the worker’s compensation statute. The statute defines an “accident” thus:

“Accident” means an unexpected or unforeseen actual, 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.

La.R.S. 23:1021(1).

The Hearing Officer found that the primary trigger of plaintiffs PTSD was a December 10,1990 back injury that the plaintiff suffered while fire fighting. It is uncontested that this back injury occurred on December 10,1990. Indeed, the plaintiff was examined and treated by the Fire Department’s doctor and held out of work for some time due to the back injury. (The plaintiff also had suffered a 1988 on-the-job back injury which may have been aggravated by the 1990 injury.)

|/The plaintiffs December 10, 1990 back injury fits comfortably within the statutory definition of accident. In fact, the City does not really contest that the December 10,1990 back injury is an “accident.” Rather, the real thrust of the City’s argument is that the plaintiffs disability, his PTSD, was not caused by the December 10, 1990 back injury. We will consider this point in connection with the City’s third argument on appeal which is addressed immediately below.

The City’s third argument is that the plaintiff did not prove that his disability, his PTSD, was work-related. The City argues that, instead, the plaintiffs PTSD was caused by his Vietnam experience. In particular, the City argues that the plaintiff did not prove that his PTSD was caused by his December 10, 1990 on-the-job back injury. Also, of course, the City points out that the plaintiffs “physical/mental” injury must be proven by clear and convincing evidence.

As mentioned above the Hearing Officer found that the December 10, 1990 back injury caused the plaintiffs PTSD to become symptomatic and disabling and that the Fire Department transfer and disciplinary proceedings may have contributed to that. The medical evidence overwhelmingly supports the Hearing Officer’s findings. Indeed, all three doctors were in substantial agreement.

Dr. Uddo, a clinical psychologist and the plaintiffs treating physician, was the only medical expert to testify at trial. She had treated the plaintiff for PTSD for a considerable time by the time of trial and had seen him on a number of occasions. Her experience with PTSD is most extensive.

Dr.

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Related

Bernard v. O'Leary Bros. Signs, Inc.
606 So. 2d 1331 (Louisiana Court of Appeal, 1992)
Handy v. Cheatum
410 So. 2d 322 (Louisiana Court of Appeal, 1982)
Taylor v. First Jersey Securities, Inc.
533 So. 2d 1383 (Louisiana Court of Appeal, 1988)
Shepherd v. Allstate Ins. Co.
562 So. 2d 1099 (Louisiana Court of Appeal, 1990)
Hayes v. Boh Bros. Construction Co.
606 So. 2d 899 (Louisiana Court of Appeal, 1992)

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Bluebook (online)
661 So. 2d 1022, 94 La.App. 4 Cir. 2686, 1995 La. App. LEXIS 2125, 1995 WL 518783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bart-v-city-of-new-orleans-fire-department-lactapp-1995.