Comeaux v. City of Ville Platte

617 So. 2d 1313, 1993 La. App. LEXIS 1716, 1993 WL 145448
CourtLouisiana Court of Appeal
DecidedMay 5, 1993
Docket92-749
StatusPublished
Cited by7 cases

This text of 617 So. 2d 1313 (Comeaux v. City of Ville Platte) 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
Comeaux v. City of Ville Platte, 617 So. 2d 1313, 1993 La. App. LEXIS 1716, 1993 WL 145448 (La. Ct. App. 1993).

Opinion

617 So.2d 1313 (1993)

David K. COMEAUX, Plaintiff-Appellant,
v.
CITY OF VILLE PLATTE, Defendant-Appellee.

No. 92-749.

Court of Appeal of Louisiana, Third Circuit.

May 5, 1993.

*1314 Clyde Fontenot, Ville Platte, for plaintiff-appellant David Comeaux.

Laura Katherine Austin, New Orleans, for defendant-appellee City of Ville Platte.

Before DOMENGEAUX, C.J., and GUIDRY and WOODARD, JJ.

GUIDRY, Judge.

Plaintiff in this worker's compensation suit, David K. Comeaux, appeals a decision by the hearing officer which found him entitled to supplemental earning benefits, rather than temporary total disability benefits, after the date of filing of form 1002 with the Office of Worker's Compensation. We affirm.

David Comeaux, a 26-year old employee of the City of Ville Platte, originally injured his low back on September 4, 1986, while attempting to lift a sewerage cleaner. He was referred to Dr. Charles Fontenot, who treated him conservatively for what the doctor diagnosed as an acute lumbar strain. Dr. Fontenot released Comeaux to light duty after approximately one week and to full duty after approximately one month.

Thereafter, on October 20, 1986, Comeaux was digging at the bottom of a shallow trench when he sustained a second injury. He was once again referred to Dr. Fontenot who diagnosed claimant as having an acute cervical strain and aggravation of his previous lumbar strain. Comeaux has not worked since the second accident.

The City of Ville Platte voluntarily paid all of Comeaux's medical expenses and from the date of injury through December 1988, paid claimant temporary total disability benefits. At that time, Comeaux began receiving partial disability retirement payments from the City and the appropriate *1315 setoff for that benefit was taken in February 1989 retroactively to December 1988. This setoff is not at issue.

At this same time, based upon various medical reports, the City also changed Comeaux's disability status from one of temporary total disability to supplemental earnings benefits and took the appropriate setoff from the latter benefits. Neither Comeaux, directly, nor the Office of Worker's Compensation (OWC), by the filing of a form 1002, were notified of this change. It is disputed whether or not Comeaux's attorney was notified of the change. In any event, when a new claims agent took over Comeaux's case, a form 1002 was filed with the OWC and a cover letter sent to claimant's attorney on November 2, 1990.

That cover letter prompted the filing of the instant litigation in which claimant sought reinstatement of temporary total disability benefits, back due temporary total benefits from the date of change through the date of reinstatement, plus penalties, interest and attorney's fees. A hearing was held on October 17, 1991 and, thereafter, on January 6, 1992, the hearing officer issued reasons for ruling, which state in pertinent part:

1) Defendant improperly reduced claimant's benefits in December of 1988. Defendant did not submit a Form 102 [sic] or otherwise give proper notice of the reduction to claimant or the Office of Workers' Compensation as required by law. See La.R.S. 23:1201.g and LAC Title 40:I.507. Defendant alleged that the reduction was proper because claimant was entitled only to Supplemental Earnings Benefits (SEB). But the checks with the reduced amount from December 1988 stated on the checks themselves that they were for Temporary Total Disability (TTD) and not for SEB. The Office therefore finds that defendant has been paying the wrong amount of weekly TTD benefits from December of 1988. Defendant must now pay the appropriate back compensation including legal interest as well as the twelve percent (12%) penalty. The defense that the medical evidence supports the December, 1988, reduction is without merit because favorable medical evidence does [sic] negate the obligation of a compensation carrier to notify claimant and the Office of Workers' Compensation of a reduction, nor does it necessarily mean that a reduction would be proper.
2) The back payment of compensation is owed only up through the present. The medical evidence shows that claimant is capable of light duty work and this Office believes that the best thing for claimant would be for him to get some sort of job. Therefore, from the effective date of this Judgment claimant is entitled to SEB.
3) The improper reduction of weekly benefits in December, 1988, was an arbitrary and capricious act. The mistakes made were totally within the control of defendant and even after notice defendant failed to correct them. Claimant is granted an award of $2,750.00 in legal fees.

Between the date of the issuance of the foregoing reasons and the signing of a formal judgment on March 26, 1992, the hearing officer changed his mind concerning 2) above and decided that past due temporary total disability benefits were only due from the date of change to SEB, December 1, 1988, until the filing of the form 1002 with the OWC on November 2, 1990 for a total of $4,583.50 plus interest and penalty (12%).

Plaintiff appeals urging the hearing officer erred in the following respects:

(1) Finding Comeaux could return to light duty work.
(2) Cutting off temporary total disability benefits with the filing of form 1002 by the City.
(3) Allowing a defense witness not listed on the pretrial order to testify in lieu of a witness so listed.
(4) Changing his mind as to item (2) of his reasons for ruling and issuing a judgment *1316 reflecting that change without an additional hearing.

The City has neither appealed nor answered this appeal.

FACTS

Comeaux was examined by a number of doctors and subjected to a battery of tests. Not one test revealed any significant abnormality and the only objective evidence of any injury was transient muscle spasms.

Dr. Charles Fontenot treated claimant from after his first accident through the date of the hearing. During that five year period, the only medical conditions which he could conclusively document were respiratory difficulty and a gastric ulcer, both of which predated Comeaux's job-related injuries. After the October 20, 1986 injury, Dr. Fontenot diagnosed claimant as having muscle and ligament injuries in his cervical and lumbar areas. When those injuries failed to respond to conservative treatment, he referred Comeaux to Dr. Frazer Gaar, an orthopedist.

Dr. Gaar, finding no arthritic changes or other orthopedic problems, agreed with Dr. Fontenot's diagnosis. He followed Comeaux until March 1987, when he issued a report stating: "All of his complaints now seem to be non-organic or functional. I think at this stage I cannot find any reason for his continued complaints based on objectivety. All of his tests have been negative".

In April 1987, Dr. Fontenot referred Comeaux to another orthopedic surgeon, Dr. Arthur Flick, and to Dr. Jimmie D. Cole for a psychological evaluation. In an April 27, 1987 report to the City's worker's compensation administrator, Dr. Fontenot stated:

In summary, this 26 year old male has been under treatment since September 1986 through April 27, 1987. He's been seen by two orthopedic specialists, Dr. Garr [sic] and also Dr. Flick. The results of multiple tests including CAT scan and discogram were all within normal limits as far as a ruptured disc is concerned.

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Bluebook (online)
617 So. 2d 1313, 1993 La. App. LEXIS 1716, 1993 WL 145448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/comeaux-v-city-of-ville-platte-lactapp-1993.