Perrilloux v. First Guaranty Bank

29 So. 3d 511, 2009 La.App. 1 Cir. 0054, 2009 La. App. LEXIS 1746, 2009 WL 3254923
CourtLouisiana Court of Appeal
DecidedOctober 9, 2009
Docket2009 CA 0054
StatusPublished
Cited by1 cases

This text of 29 So. 3d 511 (Perrilloux v. First Guaranty Bank) 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
Perrilloux v. First Guaranty Bank, 29 So. 3d 511, 2009 La.App. 1 Cir. 0054, 2009 La. App. LEXIS 1746, 2009 WL 3254923 (La. Ct. App. 2009).

Opinions

DOWNING, J.

|2In this workers’ compensation claim, the employer, First Guaranty Bank and its insurer, Stone Trust Commercial Insurance Co., (hereinafter “Stonetrust”), seek review of a judgment rendered in favor of the employee, Deborah C. Perrilloux. For the following reasons, we amend in part, and affirm as amended the Office of Workers’ Compensation (WCJ) judgment.

The WCJ found that Ms. Perrilloux sustained a compensable work-related injury to her left knee on February 1, 2007. The WCJ found that she was entitled to temporary total disability (TTD) benefits at the maximum rate of $478.00 per week, retroactive to October 16, 2007, to continue until modification was warranted; it also ordered Stone Trust to pay for Ms. Perril-loux’s left-knee revision surgery. The judgment assessed Stonetrust with $2,000.00 in penalties and $2,000.00 in attorney fees for its failure to timely institute TTD benefits. It was also penalized an additional $2,000.00 in penalties and $2,000.00 in attorney fees for failing to approve the left-knee revision surgery.

Stonetrust appealed, alleging that the WCJ erred in ruling that the knee surgery was related to Ms. Perrilloux’s work injury and erred in awarding the maximum TTD benefits. Stonetrust also assigned error to the penalty and attorney fee awards.

BACKGROUND

On August 20, 1998, Ms. Perrilloux began working at First Guaranty Bank. On February 1, 2007, the chair on which she was seated in the bank patio collapsed, causing injury to her left knee. Ms. Per-rilloux remained off work until Dr. Famb-rough, an orthopedic surgeon, released her to return on March 13, 2007. She was paid full benefits during this time. Shortly thereafter, Ms. Perrilloux complained of pain in her light knee; she left work on April 14, 2007, and never returned to the job.

Years prior to the accident, Ms. Perril-loux had undergone knee replacement surgery on both knees. Dr. Fambrough had replaced the right knee in 1997 and the left knee in 2002. After Ms. Perrilloux was discharged from Dr. Fambrough, she did not | ovisit him again until she sought treatment for her left knee after the accident. On February 5, 2007, while Dr. Famb-rough was treating Ms. Perrilloux’s injured left knee, he determined that her right knee needed revision surgery which was unrelated to the work-related accident. Shortly thereafter, Ms. Perrilloux began complaining of renewed pain in her left knee. Dr. Fambrough recommended she have a similar revision surgery on he left knee; his report did not mention if he thought the left knee problems were related to the work-accident.

Ms. Perrilloux requested a switch in treating physicians. Stonetrust approved her switch to Dr. Roch Hontas at the Tulane Medical Center. She saw Dr. Hon-tas on July 5, 2007. After the examination, Dr. Hontas concluded that it was reasonable to assume that the work-related accident triggered her current symptoms to the point that the left-knee revision procedure should be considered. On August 8, 2007, Dr. Hontas recommended that Ms. Perrilloux have revision surgery on her left knee.

Stonetrust requested an independent medical examination (IME) with Dr. Joseph Morgan, a Baton Rouge orthopedic surgeon. Dr. Morgan reported that Ms. Perrilloux’s left knee problems appeared [514]*514to be “more of a wear and tear situation” than a result of the accident. Stonetrust denied surgery benefits; Ms. Perrilloux filed a claim. Stonetrust avers that it denied the claim based upon Dr. Morgan’s adverse report and also because Ms. Per-rilloux told Dr. Hontas that her left knee was “asymptomatic” prior to the accident. Stonetrust alleges that this false information from Ms. Perrilloux led Dr. Hontas to conclude that the revision surgery needed to repair the left knee was caused by the accident.

CAUSATION

In Stonetrust’s first assignment of error it contends that Ms. Perrilloux failed to introduce sufficient evidence to connect her left-knee surgery to the February 2007 work-related accident. Stonetrust argues that the only medical evidence to connect this surgery to the accident was Dr. Hon-tas’s report that it claims was “unquestionably |4insufficient” since it was based on Ms. Perrilloux’s allegedly inaccurate chronicle. We disagree. A careful reading of Dr. Hontas’s report indicates that Ms. Perrilloux told him that she experienced “fairly immediate left knee pain” at the time of the accident, but “was doing very well with her knees prior to this event.” The report also states a substantiated fact that, up until the accident, Ms. Perrilloux had not returned to Dr. Famb-rough because she was essentially pain free. Dr. Hontas did conclude that the thinning knee replacement components predated the work injury but the revision procedure would probably now be needed sooner rathe]’ than later.

Dr. Hontas’s report stated that Ms. Per-rilloux was “completely asymptomatic pri- or to the accident,” but however, it did not say that this was the only factor he considered in concluding that her left-knee pain was caused by the accident. Moreover, Ms. Perrilloux clarified the “asymptomatic” assertion when she testified that both knees had given her pain since her first knee replacement in 1997. She also explained that prior to the accident, she was still mobile. She said that although it was painful, prior to the accident she was nimble enough to dance. This assertion is bolstered by the fact that she had not sought Dr. Fambrough’s treatment since being released in 2002.

Further, Dr. Fambrough noted on February 5, 2007, that Ms. Perrilloux was having considerable pain in her left knee and that “she most likely has sustained a fairly severe contusion in this area.” He noted on the follow-up visit that she was still having pain and still lacked about 10 degrees of full extension in the left knee. Moreover, the record indicates that knee replacements generally last about ten years before a revision is necessary. Ms. Perrilloux’s left knee was totally replaced by Dr. Fambrough in 2002. It is therefore reasonable for the WCJ to conclude that the revision surgery is now needed “sooner rather than later,” as noted by Dr. Hontas, because of the accident.

Here, the WCJ was informed of Ms. Perrilloux’s inconsistent report to Dr. Hontas. Based on the medical evidence and the witness’ credibility, the WCJ still concluded that Ms. Perrilloux suffered a work-related injury to her left knee and ordered |fiStonetrust to approve the revision procedure as recommended by Drs. Hontas and Fambrough. The trier of fact’s finding regarding causation is a factual finding that is given great deference and is reviewed under the manifest error standard. Peters v. Harmsen, 03-1296, p. 7 (La.App. 1 Cir. 4/2/04), 879 So.2d 157, 161. To be entitled to benefits, the claimant must establish a causal link between the accident and the disabling condition. Meneses v. IFCO Systems, Inc., 04-1686, [515]*515p. 8 (La.App. 1 Cir. 9/23/05), 923 So.2d 111, 116. When an employee suffered from a pre-existing medical condition, he may still meet his burden of proving causation, if he can show that the accident aggravated, accelerated or compounded the condition to produce a compensable disability. Id. Although we may have reached a different result, we cannot conclude that the WCJ’s determination regarding this issue was manifestly erroneous. Accordingly, this assignment of error is without merit.

TEMPORARY TOTAL DISABILITY BENEFIT

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Perrilloux v. First Guaranty Bank
29 So. 3d 511 (Louisiana Court of Appeal, 2009)

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Bluebook (online)
29 So. 3d 511, 2009 La.App. 1 Cir. 0054, 2009 La. App. LEXIS 1746, 2009 WL 3254923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perrilloux-v-first-guaranty-bank-lactapp-2009.