Hibbard v. M-N Utilities, Inc.

530 So. 2d 1190, 1988 La. App. LEXIS 1408, 1988 WL 58201
CourtLouisiana Court of Appeal
DecidedJune 1, 1988
DocketNo. 19670-CA
StatusPublished
Cited by1 cases

This text of 530 So. 2d 1190 (Hibbard v. M-N Utilities, 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
Hibbard v. M-N Utilities, Inc., 530 So. 2d 1190, 1988 La. App. LEXIS 1408, 1988 WL 58201 (La. Ct. App. 1988).

Opinion

SEXTON, Judge.

The plaintiffs, the widow and dependents of the decedent, appeal the trial court judgment denying their claim for worker’s compensation death benefits, funeral expenses, penalties and attorney’s fees. We reverse.

At the time of his death from a heart attack, the decedent, age 57, was an employee of the defendant, M-N Utilities, Incorporated. He had worked for the defendant since the mid-1960s. He was a foreman, whose duties included checking water wells and sewer lift stations, connecting new customers, performing disconnections for non-payment of accounts, and transferring service for moving customers. On the day of his death, December 10, 1984, the decedent reported for work at his usual time, 8:00 a.m. The service orders for that day showed that the decedent was to lock or pull the water meters providing service to three customers. The service orders showed that he had to put a lock on only one of the water meters. This activity involved his moving a five to six pound metal meter cover, getting down on his knees and, with the use of a wrench, exerting pressure sufficient to close off the valve which supplied water to the residence, and then replacing the metal cover. The cover is removed by prying the cover [1192]*1192up with a tool such as a screwdriver and then sliding it over. The metal wrench used in closing off a valve is 24 to 28 inches long and weighs three to four pounds.

In addition to performing these service orders, the decedent was required to make daily inspections of two water wells and four sewer lift stations. Checking a water well involves driving up to the well and opening the gate to get in. The worker then looks at the gauges which are located above ground. Checking a sewer lift station involves looking at the float control which is located above ground to determine whether the station is operating properly. The worker also checks to see if the pumps are primed. If the pumps are cool, then water is running through them and they are operating properly. While the decedent did check to see that the facilities were working properly, he did no maintenance. Apparently, these facilities were working properly because there is no evidence that the decedent had to perform any maintenance on them; thus, the only physical exertion in relation to inspecting these facilities was that involved in a routine check.

The decedent also had to handle a reported blockage of a sewer line in his assigned area. The service order that he completed for this blocked sewer line indicated that the sewer was leaking at the manhole. Because he worked alone, it is not known precisely what the decedent did in regard to this problem. The testimony of a former co-worker of the decedent, who happened to be the decedent’s brother-in-law, and the testimony of the president of the defendant company indicated that if the manhole was overflowing, the decedent would not necessarily have removed the manhole cover. He would, however, go to the next manhole upstream. If it wasn't running over, then he would remove that manhole cover to determine whether the sewer was flowing at that point. He would continue checking manholes in this manner until he found one in which the sewer had quit flowing. By following this procedure, he would know which two manholes the blockage was between. It was not his responsibility to unblock the sewer.

The decedent reported the blockage to his office as he was supposed to do. The office then contacted West Ouachita Sewer, the contractor responsible for unblocking sewer lines. The contractor sent two employees to unblock the sewer. The procedure to unblock a sewer is to pump water from the truck tank through the sewer. The employees testified that when they arrived, the decedent pointed out the overflowing manhole and told them which way the line ran. He did not locate the specific point of blockage for them. The sewer contractor’s employees then “walked the line” until they found a manhole that was not blocked. They looked at approximately three manholes before they found the correct one. They inserted the hose and began pumping water. The decedent sat in the truck while they located and cleared the blockage. They testified that when they ran out of water, they drove to a fire hydrant to refill their tank and the decedent followed them. The decedent sat in his truck while they filled the tank. They then drove back to the site of the blockage. The decedent followed them; however, he never arrived at the site. He was later found dead in his pickup truck. The truck had veered off the road and hit a tree. Death occurred between 3:10 p.m. and 4:00 p.m. The autopsy revealed that he had suffered a massive heart attack. The autopsy also showed that the decedent was afflicted with long-standing severe atheros-clerotic coronary disease with myocardial damage. It is undisputed that neither the decedent nor his family knew about his pre-existing heart condition.

The decedent’s widow and dependents brought suit to recover worker’s compensation death benefits, funeral expenses, penalties and attorney’s fees. They asserted that the heart attack which the decedent suffered arose out of the physical activity that the decedent engaged in on the day of his death and stress that he encountered on the job.

Finding that the decedent’s heart attack was not causally related to his work, the trial court denied the plaintiffs’ claim. In written reasons for judgment, the trial [1193]*1193court stated that there was no evidence of any work-related event, strain, exertion, or physical activity on his part on any of the few days preceding his death or on the day of his death which was out of the ordinary or excessive or in any way unusual. The court found that according to the medical evidence, the decedent’s pre-existing heart condition was so severe that the decedent’s death was “a fate doomed to occur at any time” and that he had “a time bomb in his chest.”

The court did find considerable stress upon the decedent in his family life. His older daughter has been blind, deaf and epileptic since age four. The decedent was also supporting his other daughter and her three children.

The plaintiffs appealed, making seven assignments of error which we perceive to raise four issues: (1) whether the trial court erred in finding that the decedent’s heart attack was not caused by work-related physical activity; (2) whether the trial court erred in finding that the decedent’s heart attack was not caused by work-related emotional stress; (3) whether the trial court erred in excluding evidence of the employer’s refusal to pay the bill for ambulance services incurred on the date of the decedent’s death; and (4) whether the plaintiffs are entitled to penalties and attorney’s fees.

Under LSA-R.S. 23:1031, an employee who sustains personal injuries by accident arising out of and in the course of his employment is entitled to worker’s compensation. There is no question that the employee in this case suffered a heart attack while in the course of his employment. An accident occurs in the course of employment when it happens during the time of employment and at a place contemplated by the employment. Reid v. Gamb, Inc., 509 So.2d 995 (La.1987); Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982). His death occurred during his working hours and at a job site.

The medical evidence consisted of the testimonial depositions of two doctors. Dr. P.G. Grodman is the pathologist who performed the autopsy on the decedent.

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Bluebook (online)
530 So. 2d 1190, 1988 La. App. LEXIS 1408, 1988 WL 58201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hibbard-v-m-n-utilities-inc-lactapp-1988.