Bernard v. O'Leary Bros. Signs, Inc.

606 So. 2d 1331, 1992 La. App. LEXIS 2852, 1992 WL 275580
CourtLouisiana Court of Appeal
DecidedOctober 6, 1992
Docket91-557
StatusPublished
Cited by17 cases

This text of 606 So. 2d 1331 (Bernard v. O'Leary Bros. Signs, Inc.) 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
Bernard v. O'Leary Bros. Signs, Inc., 606 So. 2d 1331, 1992 La. App. LEXIS 2852, 1992 WL 275580 (La. Ct. App. 1992).

Opinion

606 So.2d 1331 (1992)

Todd A. BERNARD, Plaintiff-Appellee,
v.
O'LEARY BROTHERS SIGNS, INC., et al., Defendants-Appellants.

No. 91-557.

Court of Appeal of Louisiana, Third Circuit.

October 6, 1992.

Darrel D. Ryland, Marksville, for plaintiff/ appellee.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, John W. Penny, Jr., Lafayette, for defendants/appellants.

*1332 Before STOKER, KNOLL, and MARCANTEL[*], JJ.

STOKER, Judge.

Mr. Todd A. Bernard brought this workers' compensation suit against O'Leary Brothers Signs and Awnings, Inc., his employer, and Cigna Insurance Company, O'Leary Brothers' compensation carrier, seeking total and permanent disability benefits. Mr. Bernard alleged that he injured his neck and back on May 17, 1989, during the course and scope of his employment with O'Leary Brothers. The defendants paid workers' compensation benefits to Mr. Bernard for a year following the accident. The defendants terminated these benefits on May 17, 1990, based on the opinions of various physicians who had evaluated Mr. Bernard at the pain center of the Willis-Knighton Medical Center in Shreveport. Mr. Bernard filed suit on June 14, 1990, to have the benefits reinstated.

Following a bench trial, the trial court found that Mr. Bernard did sustain a back injury in a work related accident. However, the court found that Mr. Bernard was not physically disabled as a result of the accident. Instead, the court found Mr. Bernard psychologically temporarily totally disabled. Nevertheless, the judgment ordered the defendants to provide physical and psychological rehabilitation services to Mr. Bernard.

The defendants appeal alleging that the trial court erred in concluding that Mr. Bernard suffered a psychological disability caused by the accident and in ordering the defendants to provide physical rehabilitation services to Mr. Bernard when the trial court found Mr. Bernard to be psychologically disabled and not physically disabled. We clarify and affirm the trial court's judgment.

FACTS

On May 17, 1989, while assisting a co-worker in lifting an awning and placing it on the floor, Mr. Bernard felt pain in his neck and lower back. Following this incident, he began complaining of neck and back pain with numbness in his extremities. Mr. Bernard was seen by a number of physicians including Dr. Donald Hines, Dr. Bryan McCann, Dr. Clifton Shepherd, an orthopedic surgeon, Dr. Luiz Carlos De Araujo, a neurosurgeon, and Dr. Robert Franklin, a physical medicine and rehabilitation specialist.

The record does not reveal that Dr. Hines or Dr. McCann testified at trial or by deposition.[1] Dr. Shepherd testified in deposition that Mr. Bernard did not have anatomic impairment or disability and that no anatomical restrictions were appropriate. Dr. De Araujo was of the opinion that Mr. Bernard did not have any type of neurosurgical disease and felt that Mr. Bernard was able to return to work from a neurosurgical standpoint without any restrictions. Dr. Franklin was the only physician who testified that Mr. Bernard was physically unable to return to his former employment.

At the insistence of the defendants, Mr. Bernard underwent an evaluation at the Willis-Knighton Medical Center in Shreveport. Dr. Phillip Osborne, an expert in occupation medicine, algology (pain study), human biomechanics, and psychological testing, brought in various physicians to put together a complete impairment disability *1333 evaluation on Mr. Bernard. This disability evaluation was performed from February 25, 1990 to March 1, 1990, and involved both physical and psychological phases. Dr. Osborne reviewed the test results for diagnosis.

Among the physicians Dr. Osborne consulted were Dr. Warren Long, a neurosurgeon, Dr. Haynie, an internist, and Dr. Dennie, an orthopedist. The record does not reveal that either Dr. Haynie or Dr. Dennie testified at trial or by deposition. Dr. Osborne's opinion is based on the evaluations of these physicians. Dr. Long testified in deposition that he did not see any neurological problem with Mr. Bernard and that he did not see why Mr. Bernard could not return to work. Dr. Osborne was of the opinion that there was nothing physically wrong with Mr. Bernard despite Mr. Bernard's complaints of neck and back pain and numbness in his extremities. Dr. Osborne concluded that Mr. Bernard was able to return to work from a physical standpoint.

However, Dr. Osborne was of the opinion that Mr. Bernard had a psychological disability. Dr. Osborne had a complete psychological profile done on Mr. Bernard by Dr. Thomas Staats, a psychologist. Dr. Osborne was of the opinion that Mr. Bernard primarily had a personality disorder which rendered him psychologically disabled from returning to work. However, Dr. Osborne stated frequently throughout his deposition that he did not believe the work-related trauma caused Mr. Bernard's psychological disability. He did testify that there was a 15% chance he was wrong in this conclusion.

Dr. Staats was of the opinion that Mr. Bernard had a personality disorder, as well as somatization,[2] general anxiety disorder, and dysthymia or depression. He was of the opinion that the personality disorder was not caused by the trauma, and he stated that it was a "toss up" as to whether the somatization was caused by the trauma. However, he was of the opinion that the anxiety and depression could have been caused by the accident. He was also of the opinion that Mr. Bernard was able to return to work.

Finally, Dr. Michael Parker, a psychiatrist, treated Mr. Bernard at Briarwood Hospital from September 8, 1990 through September 14, 1990 following an episode in which Mr. Bernard had homicidal and suicidal ideation following consumption of alcohol.

*1334 Dr. Parker was of the opinion that Mr. Bernard had an adjustment disorder, which is a milder form of depression, with mixed emotional features independent of personality traits, as well as alcohol abuse. Dr. Parker also testified that Mr. Bernard did not have major depression, and that he had passive dependent traits which did not rise to the level of a personality disorder.

Dr. Parker testified that "in [Mr. Bernard's] mind and from his perception he attributes it all to the loss of his job, loss of financial security for his family, having problems with pain on a chronic basis ... I attribute it to more than that, I also attribute it to the problems with increased drinking... I had some doubts about whether it would have reached the level that it did in his case, the degree of depression, especially the homicidal and suicidal ideation, if he had not been drinking to excess ..." Dr. Parker testified that there seemed to be a significant connection between the alcohol consumption and Mr. Bernard's depressed mood. When questioned as to whether he thought that it was more probable than not that the adjustment disorder with depressed mood was causally related to the accident, which resulted in the loss of the job, loss of financial security, chronic pain, and increased drinking, Dr. Parker testified that the alcohol was a confounding variable such that you could not say how much of the adjustment disorder with depressed mood Mr. Bernard would have had if he had not resorted to drinking as he did.

Dr. Parker was of the opinion that from a psychiatric viewpoint Mr. Bernard could have returned to work upon discharge from Briarwood if he did not consume alcohol; however, he noted that chronic pain was a confounding variable in his evaluation of Mr.

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Bluebook (online)
606 So. 2d 1331, 1992 La. App. LEXIS 2852, 1992 WL 275580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-v-oleary-bros-signs-inc-lactapp-1992.