Debona v. Pawn

649 So. 2d 449, 1994 WL 597280
CourtLouisiana Court of Appeal
DecidedNovember 2, 1994
Docket94-430
StatusPublished
Cited by10 cases

This text of 649 So. 2d 449 (Debona v. Pawn) 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
Debona v. Pawn, 649 So. 2d 449, 1994 WL 597280 (La. Ct. App. 1994).

Opinion

649 So.2d 449 (1994)

Kelly DEBONA, Plaintiff-Appellee,
v.
Alexandria PAWN, Defendant-Appellant.

No. 94-430.

Court of Appeal of Louisiana, Third Circuit.

November 2, 1994.
Writ Denied January 27, 1995.

*450 Joseph Texada Dalrymple, Alexandria, for Kelly Debona.

Russell L. Potter, Alexandria, for Alexandria Pawn.

Before THIBODEAUX, COOKS and SAUNDERS, JJ.

THIBODEAUX, Judge.

The defendant, Alexandria Pawn, appeals a workers' compensation hearing officer's judgment rendered in favor of the plaintiff, Kelly Debona, seeking a reversal of the hearing officer's judgment finding that the heart attack suffered by Debona on June 15, 1992, was a compensable accident and that Debona was rendered totally and permanently disabled as a result of the heart attack. For the following reasons, we find that Debona had a heart attack while in the course and scope of his employment that is compensable under the Worker's Compensation Act, and is totally and permanently disabled. Therefore, we affirm the judgment of the hearing officer.

I.

ISSUES PRESENTED

On appeal, Alexandria Pawn presents three issues for review:

(1) whether the Hearing Officer erred in finding that at the time of his heart attack, Debona was engaged in physical work stress that was "extraordinary and unusual" in comparison to the stress or exertion experienced by the average pawn shop employee;

(2) whether Debona's physical work stress or exertion was the predominant and major cause of Debona's heart related injury and thereby compensable pursuant to La.R.S. 23:1021(7)(e); and,

*451 (3) whether the hearing officer erred in finding that Debona met his burden of proving, by clear and convincing evidence, that he is totally and permanently disabled as a result of his on-the-job heart attack.

II.

THE STATUTE

La.R.S. 23:1021(7)(e) provides:

Heart-related or perivascular injuries.
A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

III.

THE FACTS

On June 15, 1992, Debona, an employee of Alexandria Pawn, felt fine when he arrived for work at the pawn shop to assist customers. Debona's duties at the pawn shop was to write up pawn tickets, wait on customers, pull merchandise off of pawn and sell the merchandise, as well as sweeping the sidewalk. After the store started using computers, Debona's job duties changed somewhat. He became responsible mainly for retrieving merchandise for customers and putting away pawned merchandise. Debona's duties also included lifting various types of merchandise such as 19" and 13" televisions, tools and toolboxes, as well as portable stereo systems, VCRs, typewriters and other small appliances. Big items like console television sets were usually on rollers and did not require any lifting. Items that were not on rollers but that were too heavy for one person to lift, were lifted by Debona and his co-worker, Terry Quesenberry.

Between 2:00 p.m. and 3:00 p.m., on June 15, 1992, George Lyles, the owner of Alexandria Pawn, asked Debona to go to the supermarket down the street and purchase several cases of cokes. Since Debona's brother, Frank, was at the store visiting in his truck, and since Debona did not have a truck, Lyles asked Frank to drive Debona to the store. Frank agreed. Debona testified that prior to Lyles's request that he purchase the cokes, with the exception of purchasing small supplies like scotch tape and writing tablets, he had never gone to get anything for Lyles. He further testified that purchasing and delivering cokes was not part of his job and that Lyles always did that himself.

Debona and his brother went to the grocery store and purchased approximately twelve (12) cases of cokes. Each case contained twelve (12) cans of coke[1] and each can weighed twelve (12) ounces. The cokes were put into a shopping buggy and loaded onto the truck one or two cases at a time. Debona and Frank drove back to the shop, but Frank had to park his truck in the parking lot of a nearby business because the pawn shop's lot was full. The parties stipulated that on June 15, 1992, the temperature outside was 94 degrees. The humidity was high that day as well. When Debona saw that the shop was busy and heard that he was being called to help, he picked up seven cases of cokes weighing approximately 63 pounds and proceeded to the store. Debona testified as to the manner in which he carried the cokes: "... I picked those Cokes up from the bottom of my hands all up under my chin ..." Debona's hands were stretched down to his knees and he held his back in a hunched over position as he carried the cokes to the coke machine inside the store. Debona testified that he was trying to hurry with the cokes and picked up seven cases, instead of one or two at a time, so that he could take care of the customers.

When Debona lifted the cases of coke from the truck, he testified that his chest started burning. Soon thereafter, Debona broke out *452 in chills. He was able to reach the coke machine where he just dropped the cases of coke on the floor next to the machine. He was called inside the store to wait on customers at that moment but Debona testified that he could not wait on anyone because he felt like he was going to faint. Debona's brother took him to the hospital where he was told that he suffered a heart attack.

At the Alexandria Pawn shop where Debona was employed, a delivery person usually delivered the cokes and loaded them into the coke machine. The delivery person transports the cokes to the machine from the truck by using a dolly. On other occasions, Lyles, the owner of the store, would purchase and transport the cokes. Although Debona testified that he loaded the coke machine at times prior to his June 1992, heart attack, he explained that he never had to carry any cases of coke into the store.

Alexandria Pawn refused to pay workers' compensation benefits on the basis that the claim was not compensable under La.R.S. 23:1021(7)(e). At trial, the parties stipulated that Debona was in the course and scope of his employment with Alexandria Pawn, on June 15, 1992, at the time of his heart attack. It was also stipulated that at the time of his heart attack, Debona's average weekly wage was $291.03, entitling him to a weekly compensation amount of $194.00.

IV.

ANALYSIS OF THE LAW

A. The "Extraordinary and Unusual" Criterion

In Johnson v. Petron, Inc., 617 So.2d 1358 (La.App.3d Cir.), writ denied, 623 So.2d 1338 (1993), this court explained the legislature's 1989 amendment to La.R.S. 23:1021 as follows:

"In 1989 the legislature amended La.R.S. 23:1021 of the Worker's Compensation law, adding Subparagraph (7)(e), ... This amendment ... changes the law in three ways. First, it changes the standard of proof from a preponderance of the evidence to clear and convincing evidence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lloyd v. Shady Lake Nursing Home, Inc.
47 So. 3d 609 (Louisiana Court of Appeal, 2010)
Smith v. KINDER RETIREMENT AND REH. CENTER
954 So. 2d 365 (Louisiana Court of Appeal, 2007)
Petitjean v. W. Petitjean Operating Co.
856 So. 2d 131 (Louisiana Court of Appeal, 2003)
Hood v. Metro Industrial Corp.
806 So. 2d 848 (Louisiana Court of Appeal, 2001)
City of Oakdale v. Smith
788 So. 2d 507 (Louisiana Court of Appeal, 2001)
Gooden v. BE & K CONST.
764 So. 2d 1206 (Louisiana Court of Appeal, 2000)
McClendon v. Keith Hutchinson Logging
702 So. 2d 1164 (Louisiana Court of Appeal, 1997)
Tomas v. Conco Food Distributors
702 So. 2d 944 (Louisiana Court of Appeal, 1997)
Broussard v. Dacon Corp.
692 So. 2d 1325 (Louisiana Court of Appeal, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
649 So. 2d 449, 1994 WL 597280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/debona-v-pawn-lactapp-1994.