Gordon v. Turner Industries Group, LLC

129 So. 3d 547, 13 La.App. 5 Cir. 196, 2013 WL 5552882, 2013 La. App. LEXIS 2024
CourtLouisiana Court of Appeal
DecidedOctober 9, 2013
DocketNo. 13-CA-196
StatusPublished

This text of 129 So. 3d 547 (Gordon v. Turner Industries Group, LLC) 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
Gordon v. Turner Industries Group, LLC, 129 So. 3d 547, 13 La.App. 5 Cir. 196, 2013 WL 5552882, 2013 La. App. LEXIS 2024 (La. Ct. App. 2013).

Opinion

ROBERT M. MURPHY, Judge.

| -¡Claimant-appellant, Donald Gordon, Jr., appeals the January 16, 2013 judgment of the Office of Workers’ Compensation, District 7, (“OWC”) dismissing his claims with prejudice. For the reasons that follow, we reverse the judgment of the workers’ compensation court and remand the matter for an award of indemnity and medical benefits.

[549]*549FACTS AND PROCEDURAL HISTORY

Mr. Gordon, a 36-year-old boilermaker, was employed by defendant-appellee, Turner Industries Group, LLC (“Turner” or “defendant”) at a refinery in Belle Chasse, Louisiana. On November 19, 2010, claimant began experiencing arm, neck and whole body pain while operating a forklift at work. The pain caused him to lie down on the ground and eventually rendered him unable to speak or walk. Claimant was taken to the nurse’s station at defendant’s refinery, where he was diagnosed with food poisoning. Claimant declined defendant’s offer to transport him to another medical facility and accepted a ride home from his foreman, Earl Danos. After resting at his home for almost two days without improvement, claimant went to the emergency room on November 21, 2010, where he was diagnosed as having suffered a stroke. Dr. John Lawrence Freiberg, Jr., a | ¡¡neurologist, evaluated claimant on his second day in the hospital. In connection with claimant’s stroke, Dr. Freiberg conducted several tests, including a cerebral angiogram, which confirmed that claimant sustained a dissection, or tear, of his right vertebral artery. As a result of his stroke, claimant suffers from vision problems that inhibit his ability to focus properly when reading, and he can no longer write with his right hand.

On April 11, 2011, Mr. Gordon filed a Disputed Claim for Compensation Form seeking indemnity and medical benefits in connection with the stroke he suffered within the course of his employment. On May 6, 2011, Turner answered Mr. Gordon’s complaint, denying that Mr. Gordon suffered a compensable vascular injury during the course of his employment with Turner. The case proceeded to trial on December 6, 2011. At the time of trial, claimant had not received any compensation or medical benefits from defendant.

At trial, several witnesses, including claimant, testified as to the nature of the work performed by claimant in the days leading up to his stroke. Specifically, Turner was engaged in a “turnaround” from October of 2010 until about two weeks prior to claimant’s stroke. A turnaround occurs when the refinery shuts down the equipment and performs maintenance. During a turnaround, the employees are required to work longer hours of about 80 to 90 hours per week, as opposed to working 40 hours per week during regular maintenance. According to Turner’s employment records, Mr. Gordon worked continually from October 11, 2010 until November 19, 2010 (the day of his stroke), with only one day off on November 11, 2010 to attend a doctor’s appointment, for a total of 39 days.

On November 10, 2010, Mr. Gordon began to experience pain in his right arm while at work. Prior to November 10, 2010, he worked out at the gym, including weightlifting, two to three days a week. He testified that he went to the Lgym after work on November 10, 2010, but that he abstained from lifting weights that evening due to his arm pain. When Mr. Gordon woke up the next morning, his arm was still hurting. As a result, he took off of work and made an appointment with Dr. Phuong T. Vo on November 11, 2010. Dr. Vo diagnosed claimant with a cervical strain, and advised him to take it easy. Claimant returned to work the following day on light duty, but returned to his normal work responsibilities thereafter until the day of his stroke on November 19, 2010.

Claimant’s co-workers, Harry Hebert and Mike Surrency, and his foreman, Earl Danos, testified at trial. All three witnesses described the work of a boilermaker as strenuous and physically demanding. [550]*550Mr. Surrency testified that the work boilermakers perform during a turnaround consists of generally the same work activities that they perform during regular working days. The primary difference is that the work is more tedious during a turnaround because boilermakers are working longer hours during each shift. Mr. Surrency and claimant’s foreman, Earl Danos, testified that Turner’s policy is for boilermakers to work 13 days and then take a day off. Although Mr. Danos and Mr. Hebert both stated that boilermakers will often work more than two weeks straight without a day off during a turnaround, both witnesses testified that it is unusual for a boilermaker to work more than one month straight with only one day off.

The deposition of claimant’s treating physician, Dr. Freiberg, was introduced into evidence at trial. Dr. Freiberg testified that a dissected vertebral artery like the one he examined in Mr. Gordon’s case is usually caused by “mechanical, abnormal strain or stress to the artery.” Claimant told Dr. Freiberg that the pain started while he was at work. He did not describe a specific injury that precipitated the pain. Dr. Freiberg opined that the “type of work [claimant] does can give you a dissection.” Dr. Freiberg testified that claimant informed him |fithat he began to experience upper neck/lower head pain at work a couple of days before his stroke. Dr. Frei-berg did not believe that the dissection occurred on the day of claimant’s stroke, but rather that it occurred at the time claimant began to experience pain a couple of days prior to his stroke. He explained that there is a latent period of a few days to a week between the time of the dissection and the onset of stroke symptoms. He stated that it is possible that claimant had sustained the dissection at the time he saw Dr. Vo on November 11, 2010, but that he could not be certain because no MRI images of claimant’s artery were taken at that time.

Although Dr. Freiberg could not say for sure whether claimant’s long work hours and lack of rest contributed to his stroke, he testified that he had “no doubt in [his] mind” that claimant’s arterial dissection was related to his work. He also testified that the physical work that claimant was performing on or about November 19, 2010 was “the dominate [sic] and major cause” of his stroke. Dr. Freiberg did not find any other health factors or pre-existing conditions that contributed to Mr. Gordon’s stroke, and concluded that the incidence of strokes in 36 year-olds, such as claimant, is uncommon.

The OWC judge rendered a judgment on January 19, 2012, ruling that claimant’s stroke was not work-related and dismissing Mr. Gordon’s claims with prejudice. As a result, claimant filed a motion for appeal, which was granted on February 23, 2012. In claimant’s original appeal, he raised the same three assignments of error that he now raises in the instant appeal. Because there was no indication in the record that the OWC judge considered the issue of a delay in treatment raised in claimant’s second assignment of error, we issued a judgment on December 11, 2012 remanding the matter to the OWC court for consideration and ruling on that issue. Gordon v. Turner Indus. Group, L.L.C., 12-388 (La.App. 5 Cir. 12/11/12); 106 So.3d 1130. On remand, the parties agreed to submit the issue Rto the OWC court on briefs. On January 16, 2013, the OWC judge rendered a judgment on remand in favor of defendant, dismissing claimant’s claims with prejudice. Claimant now appeals.

ASSIGNMENTS OF ERROR

Claimant raises the following assignments of error on appeal:

[551]*5511.

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Bluebook (online)
129 So. 3d 547, 13 La.App. 5 Cir. 196, 2013 WL 5552882, 2013 La. App. LEXIS 2024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-turner-industries-group-llc-lactapp-2013.