Galeano v. Glazer Aluminum

668 So. 2d 1184, 1996 WL 14131
CourtLouisiana Court of Appeal
DecidedJanuary 17, 1996
DocketNo. 95-CA-33
StatusPublished

This text of 668 So. 2d 1184 (Galeano v. Glazer Aluminum) 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
Galeano v. Glazer Aluminum, 668 So. 2d 1184, 1996 WL 14131 (La. Ct. App. 1996).

Opinion

I2CANNELLA, Judge.

Plaintiff, Jorge A. Galeano, appeals from a judgment rendered in favor of defendant, Glazer Steel and Aluminum (Glazer), dismissing his claim for worker’s compensation benefits upon finding that his heart attack is not compensable under the Workers’ Compensation law. For the reasons which follow, we affirm.

Plaintiff was an employee at Glazer on August 5,1991, when he suffered chest pains which later were determined to be from a heart attack. Plaintiff was employed in a janitorial position at the time of his heart attack and had held that position for about six months prior to the date of the heart attack. Before that he worked as a crane operator.

On the day of the heart attack, plaintiff arrived at work at 7:00-a.m. Before leaving work for the hospital, plaintiff had cleaned two offices, |8operated the vacuum cleaner, picked up trash and moved some boxes. He stated that he felt some pain in his chest while using the vacuum. He rested and then finished. While moving the boxes, he stated that he felt a sharp chest pain. He went to the warehouse, started sweeping and felt stronger pains. As the pains got stronger, plaintiff told his supervisor that he wanted to go to the hospital. A co-worker drove plaintiff to Charity Hospital.

Plaintiff was diagnosed as having suffered a heart attack. In stable condition on the following day, plaintiff was transferred to Hotel Dieu Hospital. He remained hospitalized until August 12, 1991, a period of seven days. Thereafter, plaintiff contacted Glazer [1186]*1186to have it pay a cardiologist to treat him. Glazer sent plaintiff to Dr. John Phillips for an examination. Glazer refused any worker’s compensation payments because it claimed that plaintiffs heart attack was not covered by the worker’s compensation law. Plaintiff filed suit against Glazer.

The original trial of this matter was conducted on September 29, 1992. The hearing officer rendered judgment after trial, finding that plaintiffs heart attack was not a com-pensable illness or injury under the worker’s compensation law. Plaintiff filed a motion and order for appeal from this judgement. The order was signed on July 7, 1993. It was later determined by the appeal court that the trial transcript could not be located. This court then issued an order remanding the case to the worker’s compensation office “for the trial court to take the action necessary to complete the appellate record.” Plaintiffs counsel refused to stipulate to facts or testimony. Accordingly, testimony was taken on July 31,1995[^from the witnesses of the previous trial, in an effort to reconstruct the original trial record. However, Dr. Phillips, the employer’s physician who examined plaintiff, died after testifying at the trial but before the hearing to reconstruct the record. Therefore, the only thing from Dr. Phillips in the record is his medical report which, in trial, had been received into evidence. There was no new judgment issued, since the case was only remanded to reconstruct the missing transcript. The case is now back before this court on appeal.

Plaintiff assigns two errors on appeal. First, plaintiff argues that the hearing officer erred in permitting the medical report from Dr. Phillips to be included as part of the record in the case. Plaintiff argues that, because he was not able to cross-examine Dr. Phillips (deceased), his medical report should not have been allowed as evidence. We disagree.

First, it must be understood that the remand was only to reconstruct the record which had been lost. It was not a new trial. The medical report in question was introduced into evidence at the first trial, when Dr. Phillips testified1. In allowing the report into evidence on remand, the hearing officer was only reconstructing what had already been done. There was no new judgment entered in the case. The judgment was entered by the hearing officer at the close of the trial in 1993, not upon completion of the reconstruction of the record.

Furthermore, after reviewing the entire record, we find that the report by Dr. Phillips was largely a synopsis of the other medical records from |5Charity Hospital and Hotel Dieu Hospital. Thus, even without Dr. Phillips’ report, there is record evidence of plaintiffs pre-heart attack hypertension, high cholesterol, high glucose levels, cigarette smoking and family history of heart disease. Accordingly, we find no merit to plaintiffs argument that the hearing officer erred in allowing the medical report to again become part of the record on remand.

Plaintiffs main argument on appeal is that the hearing officer erred in holding that plaintiffs heart attack was not compensable. Plaintiff argues that, he did not have any heart problems prior to this incident. Plaintiff also argues that absent the medical report of Dr. Phillips, there is no evidence in the record to support Glazer’s refusal to pay workers’ compensation benefits. Therefore, plaintiff argues that the judgment should be reversed. We disagree.

La.R.S. 23:1021(7)(e), sets out the requirements for asserting a successful claim for workers’ compensation benefits, with respect to heart related injuries or illnesses, as follows:

(e) 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 [1187]*1187the 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.

[ 6This provision, added by La.Aet. No. 454, § 1, of 1989, became effective January 1, 1990. It imposes a more stringent test for recovery than was previously set out in our jurisprudence. See, e.g., Carruthers v. PPG Industries, Inc., On Rehearing, 551 So.2d 1282 (La.1989); Guidry v. Stine Industrial Painters, Inc., 418 So.2d 626 (La.1982). First, a standard of clear and convincing evidence is imposed rather than the previous standard, a preponderance of the evidence. Second, the worker must demonstrate that the physical work stress experienced was “extraordinary and unusual” in comparison to that experienced by the average employee in that occupation, rather than as previously compared to stress in a non-employment setting. And finally, the amendment added the requirement that the worker establish that the physical work stress “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.

Plaintiff argues that the hearing officer erred in finding that his claim was not com-pensable under this statute because the record evidence is not sufficient to support the judgment. However, we find that plaintiffs argument lacks merit, because the statute places the burden of proof on plaintiff to establish by clear and convincing evidence, the compensability of the illness or injury.

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668 So. 2d 1184, 1996 WL 14131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galeano-v-glazer-aluminum-lactapp-1996.