Moity v. FIREFIGHTERS'RETIREMENT SYSTEM

960 So. 2d 158, 2006 La.App. 1 Cir. 0775, 2007 La. App. LEXIS 546, 2007 WL 861005
CourtLouisiana Court of Appeal
DecidedMarch 23, 2007
Docket2006 CA 0775
StatusPublished
Cited by5 cases

This text of 960 So. 2d 158 (Moity v. FIREFIGHTERS'RETIREMENT SYSTEM) 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
Moity v. FIREFIGHTERS'RETIREMENT SYSTEM, 960 So. 2d 158, 2006 La.App. 1 Cir. 0775, 2007 La. App. LEXIS 546, 2007 WL 861005 (La. Ct. App. 2007).

Opinion

960 So.2d 158 (2007)

Jules MOITY
v.
FIREFIGHTERS' RETIREMENT SYSTEM.

No. 2006 CA 0775.

Court of Appeal of Louisiana, First Circuit.

March 23, 2007.

*160 Richard A. Tonry, Michael C. Ginart, Kim C. Jones, Cullen A. Tonry, Chalmette, Daniel A. Claitor, Baton Rouge, Counsel for Plaintiff/Appellee Jules Moity.

Steven S. Stockstill, Baton Rouge, Counsel for Defendant/Appellant Firefighters' Retirement System.

Before: PARRO, GUIDRY, and McCLENDON, JJ.

McCLENDON, J.

This appeal challenges a district court's reversal of a decision of the Firefighters' Retirement System denying an application for disability retirement. We amend the judgment, and affirm as amended.

BACKGROUND

The record reflects that in 1976, when he was thirteen years old, Jules Moity was involved in a motorcycle accident and, as a result, fractured his right hip. He underwent surgery in which pins were inserted and later removed. Approximately fifteen years later, in 1991, Mr. Moity was hired as a firefighter by the St. Bernard Parish Fire Department. He passed a pre-employment physical examination on February 20, 1991. The report of that examination contains a notation of the 1976 right hip fracture and resulting surgery. On March 4, 1991, Mr. Moity applied for membership in the Firefighters' Retirement System (FRS). His application for membership was approved by FRS' Board of Trustees (Board) on June 28, 1991.

Mr. Moity performed the requirements of his job as a firefighter until December 10, 2003; however, he exhausted all of his sick and annual leave by December 31, 2004. On January 15, 2004, at the request of his employer, Mr. Moity underwent an orthopedic evaluation performed by Dr. Robert Ruel, Jr. According to Dr. Ruel's report, x-rays obtained that day revealed a severe deformity of the right femoral head of the right hip with disalignment, severe joint space narrowing and severe arthritic changes. Dr. Ruel diagnosed Mr. Moity as suffering from severe arthritis, post-traumatic right hip, and noted the probability that Mr. Moity will require a total hip replacement surgery in the future to alleviate his arthritic pain. Dr. Ruel opined that Mr. Moity was unable to carry out his firefighting duties with the hip in its present condition. He also noted that Mr. Moity had a chemical dependency on pain medication, which Dr. Ruel described as a disability in itself and one that prevented Mr. Moity from being an operator. Dr. Ruel felt that Mr. Moity was capable of doing sedentary to light duty jobs at the fire station.

In April of 2004, Mr. Moity applied to the FRS for disability retirement. He claimed in his application that he suffered from degenerative hip disease that resulted from the physical demands of being a firefighter over the course of his employment. In connection with the application, Mr. Moity submitted medical records of his treatment for hip pain by Dr. Kenneth Adatto and Dr. John Watermeier. Dr. Adatto's 2002 report reflected that Mr. Moity has end-stage arthritis of the hip, which he treated with anti-inflammatory and pain medications.

On May 12, 2004, Danny Menesses, the Chief Administrative Officer for the St. Bernard Parish government, wrote a letter to the FRS to offer these facts: (1) at the *161 time Mr. Moity was hired by the parish, he passed a comprehensive, pre-employment physical examination performed by the parish's medical staff; (2) Mr. Moity made full disclosure of the motorcycle accident that left him with the right hip fracture and some residual discomfort in that joint; however, that injury did not affect Mr. Moity's job performance or training for a number of years; (3) it was the opinion of outside medical specialists that the rigors and physical stress of the firefighter position led to the deterioration of his right hip; and (4) Mr. Moity maintained an exemplary working record for the parish and was well respected by his peers.

On October 14, 2004, at the request of FRS, Mr. Moity was evaluated by Dr. Larry Ferachi, an orthopedist who was FRS' appointed physician to the State Medical Disability Board. Dr. Ferachi stated that x-rays revealed advanced osteoarthritic changes of the right hip, with a complete collapse of the femoral head and no joint space maintained. Dr. Ferachi opined that Mr. Moity has advanced osteoarthritis of his right hip secondary to the 1976 traumatic fracture, end-stage arthritis, and is in need of a total hip arthroplasty. Given these physical findings, the doctor stated, Mr. Moity is unable to return to any type of employment as a firefighter.

Shortly thereafter, FRS sent Dr. Ferachi a letter requesting clarification of preexisting disability status. Dr. Ferachi was asked whether, based on the medical records he reviewed and his October 14, 2004 examination, Mr. Moity's advanced osteoarthritis of his right hip was a result of the 1976 motorcycle accident and resulting right hip fracture. The question was followed with spaces to answer "Yes" and "No." Dr. Ferachi checked both the yes and no spaces, commenting, "Read the report!!" Dr. Ferachi wrote that the fracture was the primary cause of Mr. Moity's advanced osteoarthritis of the right hip, but that the stress and habits of a firefighter increased the risk to develop osteoarthritis of the hip.

At its November 18, 2004 regularly scheduled monthly business meeting, the Board considered Mr. Moity's disability retirement application. Dr. Ferachi's report was presented to the Board, along with the statutory language on preexisting conditions found in La. R.S. 11:216. That provision reads as follows: "[a]ny disability claimed by a member of a state or statewide retirement system must have been incurred after commencement of service in the system with which the claim is filed. Disability claims shall not be honored in the case of preexisting conditions." Thereafter, the Board denied Mr. Moity's application, notifying Mr. Moity of its decision by letter dated November 23, 2004. Therein, FRS Benefit Analyst Jason Starns noted that after reviewing the evidence and based upon Dr. Ferachi's report, it was determined that the medical condition upon which Mr. Moity based his claim for disability was a preexisting condition for which disability retirement benefits were not available in light of La. R.S. 11:216.

On November 29, 2004, Mr. Moity notified FRS that he intended to appeal the decision of the Board. Pursuant to La. R.S. 11:218, FRS arranged for Mr. Moity to be examined by Dr. Thad Broussard, a second State Medical Disability Board doctor. In a letter to Dr. Broussard, the FRS benefit analyst sought assistance on the question of causation, stressing that the Board was focusing on whether Mr. Moity's right hip condition preexisted his membership in FRS. The question posed to Dr. Broussard by FRS was whether Mr. Moity's right hip condition arose before or *162 after the date of his membership in FRS (March 4, 1991).

In a second opinion rendered by Dr. Broussard on December 21, 2004, Dr. Broussard noted that x-rays taken in his office showed severe osteoarthritic changes with deformity of the hip. He opined that Mr. Moity could not continue to work in any way as a firefighter with his hip in its present condition. Regarding the question of causation, in his report, Dr. Broussard wrote:

I do not, however, believe that these changes in the hip are solely the result of his activities as a fire fighter.

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Related

Moity v. Firefighters' Retirement System
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Bluebook (online)
960 So. 2d 158, 2006 La.App. 1 Cir. 0775, 2007 La. App. LEXIS 546, 2007 WL 861005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moity-v-firefightersretirement-system-lactapp-2007.