McKelvey v. City of Dequincy

970 So. 2d 682, 2007 WL 3353514
CourtLouisiana Court of Appeal
DecidedNovember 14, 2007
Docket07-604
StatusPublished
Cited by25 cases

This text of 970 So. 2d 682 (McKelvey v. City of Dequincy) 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
McKelvey v. City of Dequincy, 970 So. 2d 682, 2007 WL 3353514 (La. Ct. App. 2007).

Opinion

970 So.2d 682 (2007)

Charles McKELVEY, Jr.
v.
CITY OF DEQUINCY.

No. 07-604.

Court of Appeal of Louisiana, Third Circuit.

November 14, 2007.

*684 Christopher Richard Philipp, Lafayette, LA, for Defendant/Appellant, City of DeQuincy.

Thomas Allen Filo, Cox, Cox, Filo & Camel, L.L.P., Lake Charles, LA, for Plaintiff/Appellee, Charles McKelvey, Jr.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.

THIBODEAUX, Chief Judge.

Defendant, the city of DeQuincy, appeals the Office of Workers' Compensation judgment awarding death benefits to the plaintiff, Tina McKelvey, (Mrs. McKelvey) individually and on behalf of her minor daughter, Misty, as a result of the death of her husband, Charles McKelvey, Jr., due to "probable mixed drug intoxication." The city of DeQuincy also appeals the Office of Workers' Compensation judgment awarding $2,000 in penalties and $6,500 in attorney fees against it and in favor of Mrs. McKelvey because the trial judge concluded that the claim was "not reasonably controverted, nor suitably investigated."

For the following reasons, we affirm the judgment of the Office of Workers' Compensation.

I.

ISSUES

We shall consider whether:

1. the trial court erred in determining that Mrs. McKelvey carried her burden of proof by a preponderance of the evidence in showing that Mr. McKelvey's death was attributable to treatment for his work-related accident;
2. the trial court erred in allowing Mrs. McKelvey to establish Mr. McKelvey's cause of death by using his death certificate; and,
*685 3. the trial court erred in awarding penalties and attorney fees to Mrs. McKelvey.

II.

FACTS

Mr. McKelvey suffered an injury at work on September 25, 2000, while working as a heavy equipment operator for the city of DeQuincy. Thereafter, he developed severe pain in his back and lower extremities. Mr. McKelvey consulted Dr. Clark Gunderson, an orthopedic surgeon. After a complete diagnostic physical examination, which included a lumbar myelogram, a computerized tomography of the lumbar spine (CT), and an electromyogram (EMG), Dr. Gunderson determined that Mr. McKelvey was not suitable for surgery and referred him to Dr. Frank Lopez, a rehabilitation physician.

On July 30, 2001, Dr. Frank Lopez began treating Mr. McKelvey for pain management. Dr. Lopez diagnosed Mr. McKelvey with lower back pain with radiculopathy. To control Mr. McKelvey's back aches, Dr. Lopez devised a treatment plan consisting of prescribed medications such as Zanaflex, Neurotin, Soma, Restorial, OxyContin, and Mepergan Fortis.

In 2004, Dr. Lopez referred Mr. McKelvey back to Dr. Gunderson. Following a thorough physical examination, Dr. Gunderson determined that the x-rays showed degenerative disc disease at every level. Thereupon, Dr. Gunderson concluded that Mr. McKelvey was still not a suitable candidate for surgery. Accordingly, Mr. McKelvey continued his pain management treatment with Dr. Lopez.

On February 9, 2005, Mr. McKelvey was found dead. A toxicology report was issued by the Southwest Institute of Forensic Science in Dallas, Texas. The toxicology report tested negative for alcohol and controlled substances, but indicated that Mr. McKelvey had high levels of ten prescription medications in his system at the time of his death. Based upon the toxicological findings, Mr. McKelvey's death certificate stated his death as caused by "probable mixed drug intoxication."

The city's third party administrator, Risk Management, Inc. (RMI), was paying Mr. McKelvey's workers' compensation benefits continuously until his death. However, upon Mr. McKelvey's death, all workers' compensation benefits were terminated based on RMI's determination that since Mr. McKelvey "apparently ingested excessive amounts of medications" the death was not caused by his work-related injury. At trial, Sandy Arst, the claims adjuster for RMI, testified that once RMI learned of Mr. McKelvey's death, further investigations on the claim were suspended.

On July 21, 2005, Mrs. McKelvey filed a death benefit claim. Thereafter Mr. Arst asked Mrs. Carla LaFleur, a medical case manager, to reopen Mr. McKelvey's file and conduct research on the interaction between the drugs Mr. McKelvey was taking at the time of his death. Mrs. LaFleur rendered a report which stated the side effects of each medication taken individually; it did not indicate the side effects of the medications taken collectively. No death benefits were ever paid to Mrs. McKelvey.

III.

LAW AND DISCUSSION

Standard of Review

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of *686 fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Association, 02-2660, p. 9 (La.6/27/03), 851 So.2d 1006, 1023.

Nevertheless, the issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong but whether the factfinder's conclusion was a reasonable one . . . Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.

Stobart v. State through DOTD, 617 So.2d 880, 882 (La.1993).

Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Prine v. St. Paul Fire & Marine Ins. Co., 749 So.2d 831. The "manifest error" standard of review applies to all factual findings, including sufficiency of the evidence challenges. Hall v. Folger Coffee, Co., 03-1734 (La.4/14/04), 874 So.2d 90, 99, citing Nabors Drilling USA v. Davis, 03-0136 (La.10/21/03), 857 So.2d 407, 416. Therefore, we will review the record in its entirety to determine if the trial court's findings are reasonable in light of the evidence contained therein.

A.

Was the trial court's determination that Mr. McKelvey's death was attributable to treatment for his work-related accident reasonable in light of the record reviewed in its entirety?

We are posed with the factual question of whether Mrs. McKelvey carried her burden of proof by a preponderance of the evidence in showing that Mr. McKelvey's death was directly attributable to the treatment he received for his work-related injury.

The plaintiff in a death benefits case bears the burden of proving, by a reasonable preponderance of the evidence, that a causal relationship exists between the employment accident and death. Hammond v. Fidelity & Cas. Co. of New York, 419 So.2d 829, 831 (La.1982). It is not necessary for the plaintiff to establish the exact cause of the disability or, in this case, the death, but it is necessary for the plaintiff to "demonstrate by a preponderance of proof that the accident [that was] sustained has [a] causal relationship with [the] disability." Quinones v. U.S. Fidelity and Guar. Co., 93-1648 (La.1/14/94), 630 So.2d 1303, citing Russell v. Employers Mutual Liability Insurance Co. of Wisconsin, 246 La. 1012, 169 So.2d 82, 88 (La.1964).

In this case, there is evidence establishing that Mr.

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Bluebook (online)
970 So. 2d 682, 2007 WL 3353514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckelvey-v-city-of-dequincy-lactapp-2007.