Downs v. J. & J. MAINTENANCE, INC.

702 So. 2d 845, 1997 WL 619206
CourtLouisiana Court of Appeal
DecidedOctober 8, 1997
Docket97-511
StatusPublished
Cited by5 cases

This text of 702 So. 2d 845 (Downs v. J. & J. MAINTENANCE, 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
Downs v. J. & J. MAINTENANCE, INC., 702 So. 2d 845, 1997 WL 619206 (La. Ct. App. 1997).

Opinion

702 So.2d 845 (1997)

Gary C. DOWNS, Plaintiff-Appellee,
v.
J. & J. MAINTENANCE, INC., Defendant-Appellant.

No. 97-511.

Court of Appeal of Louisiana, Third Circuit.

October 8, 1997.

*846 John K. (Mike) Anderson, Leesville, for Gary C. Downs.

Patricia L. Barfield, Shreveport, for J. & J. Maintenance, Inc.

Before SAUNDERS, WOODARD and GREMILLION, JJ.

SAUNDERS, Judge.

In this workers' compensation dispute, the employer contests its having been found liable for workers' compensation death benefits. It complains that the workmens' compensation judge erred in finding its employee's survivors entitled to death benefits from a heart-attack. We affirm, finding no manifest error.

FACTS

The facts giving rise to the present dispute are essentially uncontradicted. Decedent, Gary C. Downs, was an employee of J. & J. Maintenance operating under the job classification of "plumber," when, on his first day of employment with the firm, he was felled by a heart attack toward the end of the work day. J. & J. was a contractor hired by the Department of Defense to perform work previously conducted by Defense employees, including Mr. Downs.

On the first day following the changeover to contract status, October 18, 1993, decedent Downs was instructed by J. & J. supply chief Mr. Ricky Martin to begin the day by making a supply list for "plumbers," with the assistance of a fellow "plumber," Ricky Conn, which they did most of the morning. After completing the supply lists that morning, these and other employees of J. & J. were directed to unload eighteen-wheel tractor-trailers that had arrived laden with quantities of material commensurate with J. & J.'s ambitious maintenance contract at Fort Polk.[1] These tasks were undertaken during a *847 two and one-half hour period of time during the afternoon of October 18, 1993, with temperatures in the high eighties. The crew rushed to accomplish these tasks before the close of business that day.

Decedent sought to accomplish his part of this mission without consuming any water or taking any breaks and succumbed to a heart attack or perivascular injury just as the job was winding down that afternoon. As a result of Mr. Downs' heart attack and resulting death, his survivors filed a claim with the Office of Workers' Compensation.

Trial was conducted on November 12, 1996, with the principal issue being (as now) whether decedent was felled by a compensable workplace accident in accordance with La.R.S. 23:1021(7)(e) pertinent to such claims. Following trial, judgment was rendered in favor of decedent's loved ones, including burial expenses of $5,880.15, medical expenses of $100.00, and legal interest from date of judicial demand and all costs.

From these findings, the employer appeals.[2]

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

The principal issue presented for our consideration is whether Mr. Gary Downs' survivors have sustained the burden of proving their entitlement to workers' compensation benefits in accordance with La.R.S. 23:1021(7)(e).

Effective January 1, 1990, the legislature redefined these requirements with respect to heart-related and perivascular injuries by enacting La.R.S. 23:1021(7)(e), which 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. (Emphasis added.)

This statute makes it more difficult for a claimant to prove that heart-related and perivascular injuries suffered on the job are compensable. Specifically, the amended statute changes the law in such cases in at least three respects. First, it heightens the burden of proof the claimant must show from a preponderance of the evidence to clear and convincing evidence. Second, it changes the standard that the claimant's physical work stress must be compared to, requiring his or her physical work stress to be extraordinary and unusual when compared to the physical work stress of the average employee in that occupation. Third, it heightens the required causal link between that work stress and the heart injury by requiring the physical work stress to be the predominant and major cause of the heart-related or perivascular injury.

Harold v. La Belle Maison Apartments, 94-0889, pp. 4-5 (La.10/17/94); 643 So.2d 752, 754-55.

After reviewing the record evidence, we conclude that the workmens' compensation judge did not err in concluding that plaintiffs successfully established their entitlement to benefits for the death of Mr. Downs.

The first prong of the amended statute requires plaintiff to prove by clear and convincing evidence that the physical work stress she experienced was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation. La.R.S. *848 23:1021(7)(e)(I). "Extraordinary" is defined as "going beyond what is usual, regular, or customary." Webster's New Collegiate Dictionary (1977). "Unusual" is defined as "not usual" and "uncommon;" that is, not in accordance with usage, custom, or habit. Id. As is apparent from these definitions, the terms "extraordinary" and "unusual" have similar meanings. We hold that these terms require plaintiff to prove that her physical work stress went beyond what was usual, regular or customary in relation to the average employee in that occupation.

Harold, 94-0889, pp. 5-6; 643 So.2d at 755.

On appeal, defendant emphasizes the fact that claimant was a "plumber" during his Federal employment, but a "maintenance worker" in his new employment, implying that the work stresses he endured as a "maintenance worker" on October 18, 1993, were not extraordinary, regardless of whether the physical work stress was extraordinary in comparison to that of the usual plumber.

We find this argument without merit, for it is not the job title an employer assigns its employee's position that forms the basis of a claimant's occupation against which perivascular claims are to be measured under La. R.S. 23:1021(7), but the usual duties of the position to which he and his peers are assigned. Charles v. Travelers Ins. Co., 627 So.2d 1366 (La.1993).[3]

Against this proper standard, the evidence clearly supports the workmens' compensation judge's conclusion that claimant's survivors are entitled to benefits, for the evidence—including not insignificantly the testimony of several of decedent's co-workers—shows overwhelmingly that the physical work to which decedent was assigned the afternoon of October 18, 1993, far exceeded the demands customarily and regularly placed upon plumbers, inasmuch as the magnitude of lifting, the infrequency of rest periods, and the extreme heat were exceptional, and placed decedent in a work environment which was far more demanding than that to which he was accustomed and also more demanding than that to which his co-workers were accustomed.

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Cite This Page — Counsel Stack

Bluebook (online)
702 So. 2d 845, 1997 WL 619206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downs-v-j-j-maintenance-inc-lactapp-1997.