Tassin v. New Orleans Delivery Service

550 So. 2d 1214, 1989 WL 104185
CourtLouisiana Court of Appeal
DecidedSeptember 5, 1989
Docket89-CA-167
StatusPublished
Cited by7 cases

This text of 550 So. 2d 1214 (Tassin v. New Orleans Delivery Service) 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
Tassin v. New Orleans Delivery Service, 550 So. 2d 1214, 1989 WL 104185 (La. Ct. App. 1989).

Opinion

550 So.2d 1214 (1989)

Eugene A. TASSIN
v.
NEW ORLEANS DELIVERY SERVICE and Liberty Mutual Insurance Company.

No. 89-CA-167.

Court of Appeal of Louisiana, Fifth Circuit.

September 5, 1989.
Rehearing Denied November 17, 1989.

*1215 G. Michael Grosz, III, Ken Mayeaux, Gretna, for plaintiff-appellee Eugene A. Tassin.

Kristin H. White, Borrello, Huber and Dubuclet, Metairie, for defendants-appellants NOLA Delivery Service, Inc. and Liberty Mut. Ins. Co.

Before KLIEBERT, GOTHARD, JJ., and TIEMANN, Jr., Pro Tem.

KLIEBERT, Judge.

Eugene A. Tassin, plaintiff, sued his employer, NOLA Delivery Service, Inc.,[1] and Liberty Mutual Insurance Company, its insurer, collectively defendants, to recover: (1) weekly compensation benefits based on permanent total disability, (2) reimbursement for certain medical expenses defendant had refused to pay, and (3) penalties and attorney fees for being arbitrary and capricious in the handling of his claim.

The compensation claim was predicated on a back injury plaintiff sustained on May 11, 1984 while delivering a refrigerator to a customer in the normal course and scope of his employment. After the accident, plaintiff was put on full benefits of $245.00 per week. As of March 15, 1986, Liberty Mutual reduced the weekly benefits to $195.92, computed as the supplemental benefits based on plaintiff earning minimum wages and working twenty hours per week. Further, plaintiff contends defendant refused to pay certain medical expenses because it believed the expenses were for treatment of non-work related medical expenses.

The trial court found plaintiff was totally and permanently disabled and accordingly awarded him full benefits at the stipulated rate of $245.00 per week. Further, it ordered defendants to pay the difference ($49.08) between the full benefits of $245.00 and the supplemental earnings benefits of $195.92 from March 1986 until full payment of $245.00 is resumed. Defendant was also required to reimburse plaintiff for disputed medical bills and prescription medicines. The court also assigned statutory *1216 penalties of 12% and attorney's fees of $3,000.00.

Defendant perfected a suspensive appeal. The appeal presents three issues for review:

(1) Did the court err in finding the plaintiff totally and permanently disabled and ordering payment of full compensation benefits?

(2) Did the court err in ordering defendant to pay the disputed medical expenses?

(3) Was the defendant Liberty arbitrary and capricious in the handling of the claim?

We amend the judgment to delete the assessment of penalties and attorney fees and to cast the proper defendants and, as amended, affirm.

Plaintiff worked as a truck driver/delivery man for NOLA Delivery Service, Inc. for some 19 years. On May 11, 1984, while squatting to pick up a 600-700 pound refrigerator for delivery, he felt a sharp pain in his lower back. He went directly to Ochsner Hospital for treatment.

After initially being placed on "no work status" by his treating physicians, Julius J. Whittington, III and Douglas A. Swift, of the Department of Occupational Medicine, Ochsner Clinic, Dr. Swift released plaintiff to perform sedentary work on June 8, 1984. This restriction continued until Homer D. Kirgis, M.D., Department of Neurosurgery, Ochsner Clinic, evaluated plaintiff. His report, dated June 14, 1988, states plaintiff "still is disabled for the performance of any type of work." At the time of trial, plaintiff was not performing any type of work. Thus, the record establishes that at the time of trial plaintiff was totally and permanently disabled.

However, defendants argue that a pre-existing degenerative disc disease and arthritis are the causes of plaintiff's disability and not the accident of May 11, 1984. Based on plaintiff's testimony and the stipulated medical reports, defendants contend plaintiff injured only his back in the accident and that injury has essentially healed. Defendants contend benefits were properly reduced because the disability was caused by a non-work related degenerative disc disease; non-work related arthritis in his knees and hands, and further, because plaintiff was capable of performing some type of work.

The underlying fallacy in defendant's arguments is its consistent effort to view this plaintiff's disability solely from his back injury. The law is settled that a pre-existing disease or infirmity of an employee does not disqualify the worker's compensation claim, if the work injury aggravated, accelerated or combined with the disease or infirmity to produce death or disability for which compensation is claimed. Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320 (La.1985). Here, before the accident plaintiff was active, able to and did work at a demanding manual labor job. After the on-the-job accident, he became inactive, was in constant pain, and unable to perform the same job. Further, the medical report dated July 11, 1984 from Dr. Harold M. Stokes, a treating orthopaedic surgeon, indicates the degenerative disc disease predated the May 11, 1984 accident but may have been aggravated by that injury. Therefore, the disability is presumed to have resulted from the on-the-job accident and it was defendants' burden to disprove the presumed causal connection. See Walton, supra. As the record is void of evidence by defendants rebutting the presumption, the trial court properly found plaintiff's total disability was caused by the May 11, 1984 accident.

Notwithstanding plaintiff's present disability due to progressive degenerative disease of the back, wrist and knees, defendant contends it was justified in reducing the weekly benefits because plaintiff was capable of performing some work but refused to do so.

The trial court found plaintiff did all that was required of an injured worker under Louisiana Worker's Compensation Law. He maintained an active search for work, went to all interviews set up by defendant seeking employment, and sought *1217 out interviews on his own. Unfortunately there were no job offers.

Defendant argues there were no job offers because of too many self-imposed restrictions placed by plaintiff on the type job he would accept. However, the medical reports state any suggested employment not include bending, stooping, or lifting due to plaintiff's condition. Further, plaintiff testified as to the pain he suffered and how it affected the activities he could do. He could not stand, sit or walk for long periods without experiencing pain. Although not specifically stated in the medical reports issued prior to March 15, 1986 (the date benefits were reduced), it is apparent plaintiff suffered pain and discomfort which limited his job opportunities and that his disability increased with the passage of time.

The medical report of A. William Dunn, M.D., a consulting physician from the Department of Orthopaedic Surgery at Ochsner Clinic, on August 26, 1986 states plaintiff will never be released to do any work requiring lifting, prolonged standing, or walking. Further, the report of Dr. Stokes, dated May 4, 1987, repeats prior work restrictions and states any job should allow plaintiff to sit and stand at will. Finally, the medical report of Dr. Kirgis, dated June 14, 1988, states plaintiff's disability has progressed to the point where he cannot work at all.

Thus, the record supports the trial court's finding that plaintiff was entitled to full compensation benefits from the date of the injury on May 11, 1984, and defendant was wrong in reducing his weekly benefit payments.

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Bluebook (online)
550 So. 2d 1214, 1989 WL 104185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tassin-v-new-orleans-delivery-service-lactapp-1989.