Gabriel v. Delta Air Lines, Inc.

106 So. 3d 1285, 12 La.App. 5 Cir. 428, 2013 WL 336148, 2013 La. App. LEXIS 144
CourtLouisiana Court of Appeal
DecidedJanuary 30, 2013
DocketNo. 12-CA-428
StatusPublished
Cited by8 cases

This text of 106 So. 3d 1285 (Gabriel v. Delta Air Lines, 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
Gabriel v. Delta Air Lines, Inc., 106 So. 3d 1285, 12 La.App. 5 Cir. 428, 2013 WL 336148, 2013 La. App. LEXIS 144 (La. Ct. App. 2013).

Opinion

HANS J. LILJEBERG, Judge.

|aIn this worker’s compensation case, defendants, Delta Airlines, Inc. (“Delta”) and Ace American Insurance Company, appeal the October 31, 2011 judgment in favor of claimant, Carl Gabriel, awarding him temporary total disability benefits, medical expenses, and other relief sought. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

In August of 2008, Mr. Gabriel began working for Delta as a “Ready Reserve” employee. On October 19, 2008, while working in the course and scope of his employment with Delta, Mr. Gabriel was injured when a tow bar that he was disconnecting from an airplane fell onto his left foot.

On October 21, 2008, Delta sent Mr. Gabriel to see Dr. Tamimie, who originally [1288]*1288diagnosed him with a contusion on his left foot and released him to return to work. Shortly thereafter, it was determined that x-rays showed Mr. Gabriel suffered a fracture of the second metatarsal in his left foot. On November 11, 2008, Dr. Tamimie prescribed pain medication for Mr. Gabriel and recommended light duty or “sit down work” only. On this date, he also discharged Mr. Gabriel and recommended that he see an orthopedic doctor.

|sOn November 12, 2008, Mr. Gabriel saw Dr. Nutik, an orthopedist chosen by the employer. After this first visit, Dr. Nutik recommended that Mr. Gabriel return to sedentary duty work while his fracture continued to heal.

On December 3,2008, Mr. Gabriel began treating with Dr. Faust, his own choice of orthopedist. At this first visit, Dr. Faust opined that Mr. Gabriel should have some continued discomfort, but he should not require any further treatment. He also stated that “light duty” work would be appropriate for him. In January 2009, Dr. Faust saw Mr. Gabriel and recommended that he begin physical therapy and work at “light duty.” On February 18, 2009, Dr. Faust released Mr. Gabriel to return to full duty work. However, on February 25, 2009, after Mr. Gabriel contacted Dr. Faust to inform him that he went to a parade and his foot had swelled, Dr. Faust again recommended physical therapy. On April 14, 2009, Dr. Faust opined that Mr. Gabriel’s fracture of the second metatarsal was healed and that he may continue to have some discomfort, but that the fracture was solid. On this date, he also indicated that Mr. Gabriel was capable of gainful employment and he recommended that he return to his former occupation. Again on May 29, 2009, Dr. Faust opined that Mr. Gabriel did not need to restrict his activities and that he could return to gainful employment.

In June 2009, Dr. Faust informed Mr. Gabriel that after 30 days, he would no longer treat him because Mr. Gabriel had indicated that he did not believe Dr. Faust was truthful about the seriousness of his injury. Thereafter, Mr. Gabriel continued to treat with various doctors. He began complaining of back pain as well, which he asserts was caused by an altered gait due to his foot injury.

In September of 2009, Mr. Gabriel began treating with Dr. Johnston. Several tests were performed and Dr. Johnston recommended physical therapy. In his March 24, 2010 report, Dr. Johnston opined that Mr. Gabriel was capable of 14sedentary duty work. In his June 1, 2011 report, Dr. Johnston stated that Mr. Gabriel’s injury was healed.

Dr. Nutik examined Mr. Gabriel again on May 27, 2010 at the employer’s request. In his report of that date, he opined that Mr. Gabriel’s fracture of the second metatarsal had healed in good alignment. He also noted that Mr. Gabriel had subjective complaints, but no objective findings were noted. He indicated that there were no findings in the clinical exam that would indicate reflex sympathetic dystrophy, other than hypersensitivity. Further, Dr. Nutik did not relate Mr. Gabriel’s back pain to his foot injury, noting that “the onset of the low back pain started after Mr. Gabriel’s gait normalized.”

On September 20, 2010, the worker’s compensation judge appointed an orthopedist, Dr. Cazale, as an independent medical examiner (“IME”) to evaluate Mr. Gabriel’s condition and work status. Dr. Ca-zale saw Mr. Gabriel on February 15, 2011. In his report of that date, he stated that no treatment for Mr. Gabriel’s back pain was recommended. He further found that Mr. Gabriel’s foot injury had healed “uneventfully.” He also noted that there were no objective findings to indicate a reflex sym[1289]*1289pathetic dystrophy, but he indicated that he would not be opposed to a triple-phase bone scan, as recommended by Dr. Johnston.

Later, in his deposition of June 14, 2011, Dr. Cazale stated that when he saw Mr. Gabriel in February of 2011, he noted that the fracture of the second metatarsal had healed in the appropriate position and alignment. He opined that a person with this kind of injury would typically return to regular activities within three to four months, and he saw no objective reason why Mr. Gabriel would not follow the same course. He also stated that when he saw Mr. Gabriel in February of 2011, there was a question at that time of whether or not he had reflex sympathetic dystrophy, so he would have had some restrictions. However, based on the results |fiof the bone scan that was subsequently performed, Dr. Cazale opined that Mr. Gabriel was able to perform full-duty work at that time. He indicated that if he had had the results of the bone scan at the time that he examined Mr. Gabriel, he would have recommended that Mr. Gabriel return to full-duty work.

After the accident, Delta paid total indemnity benefits to Mr. Gabriel from January 3, 2009 to April 24, 2009 and from May 19, 2009 to June 1, 2009.1 On November 6, 2009, Mr. Gabriel filed a Disputed Claim for Compensation, asserting that Delta failed to properly pay indemnity benefits and failed to timely pay or authorize medical benefits. On February 23, 2011, Mr. Gabriel filed a First Amended and Supplemental Disputed Claim for Compensation, adding several new assertions to his claim, including that he had developed a back condition as a result of his foot injury, that he had developed “RSD” in his foot, and that he is entitled to the maximum amount of benefits.

Trial of this matter was held on July 28, August 3, and August 4, 2011. At the commencement of trial, the parties stipulated that Mr. Gabriel was an employee of Delta on the date of the accident, October 19, 2008. They also stipulated that the accident occurred in the course and scope of Mr. Gabriel’s employment. At the conclusion of trial, the worker’s compensation judge allowed the parties additional time to submit post-trial memoranda.

On October 31, 2011, the worker’s compensation judge rendered a judgment finding:

1) that Mr. Gabriel was injured by accident during the course and scope of his employment with Delta on October 19, 2008;
2) that Mr. Gabriel is entitled to temporary total disability benefits from January 3, 2009 through the present and continuing;
|fi3) that Mr. Gabriel is entitled to payment of medical expenses, medication expenses, indemnity benefits, and transportation expenses, in accordance with law;
4) that there is a causal connexity between the accident of October 19, 2008 and Mr. Gabriel’s left foot, back, spine, and psychological injuries;
5) that medical treatment by Dr.

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

Related

Ruver Moya Versus Michael Lucas
Louisiana Court of Appeal, 2021
Gabriel v. Delta Air Lines, Inc.
230 So. 3d 671 (Louisiana Court of Appeal, 2017)
Mazique v. Cajon Operating Co.
142 So. 3d 336 (Louisiana Court of Appeal, 2014)
Gabriel v. Tamimie
110 So. 3d 717 (Louisiana Court of Appeal, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
106 So. 3d 1285, 12 La.App. 5 Cir. 428, 2013 WL 336148, 2013 La. App. LEXIS 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabriel-v-delta-air-lines-inc-lactapp-2013.