Terro v. WMCO, INC.

619 So. 2d 639, 1993 WL 145442
CourtLouisiana Court of Appeal
DecidedMay 5, 1993
Docket92-778
StatusPublished
Cited by17 cases

This text of 619 So. 2d 639 (Terro v. WMCO, 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
Terro v. WMCO, INC., 619 So. 2d 639, 1993 WL 145442 (La. Ct. App. 1993).

Opinion

619 So.2d 639 (1993)

Vicki P. TERRO, Plaintiff-Appellee,
v.
WMCO, INC. and Hartford Accident and Indemnity Co., Defendants-Appellants.

No. 92-778.

Court of Appeal of Louisiana, Third Circuit.

May 5, 1993.
Rehearing Denied June 25, 1993.

*640 Michael Benny Miller, Crowley, for plaintiff-appellee Vicki P. Terro.

Katherine Marie Loos, Lafayette, for defendants-appellants WMCO, Inc. and Hartford Acc. and Indem. Co.

Before DOMENGEAUX, C.J., and GUIDRY and WOODARD, JJ.

GUIDRY, Judge.

This is a worker's compensation case. Plaintiff, Vicki Terro, was injured in an automobile accident on April 23, 1988, while in the course and scope of his employment as a service technician with WMCO, Incorporated. On July 12, 1990, Terro filed this claim with the Office of Workers' Compensation against WMCO and its compensation insurer, Hartford Accident and Indemnity Company. The hearing officer determined that Terro was entitled to supplemental earnings benefits (SEB) based on an average monthly wage rate of $2,062.52 from March 14, 1990 through the completion of a six-week work hardening program "and as long as his disability continued". (Emphasis ours) Against this amount, the hearing officer awarded the defendants credits for regular wages earned by Terro after March 14, 1990 and for $1,020 allegedly paid to Terro by Hartford while he was simultaneously working for and receiving regular wages from WMCO. The hearing officer also concluded that the defendants were not arbitrary and capricious and, thus, denied plaintiff's claim for penalties and attorney's fees. On plaintiff's motion for a new trial, plaintiff's average monthly wage rate was amended to $2,359.75.

Defendants appealed and plaintiff answered the appeal. For the reasons which follow, we amend the SEB award and reverse the credit granted defendants for $1,020. In all other respects, we affirm the judgment.

*641 FACTS

Terro was involved in a serious automobile accident in Vermilion Parish during the early morning hours of April 23, 1988. He injured his neck and right shoulder and was initially treated by Dr. William Bernard, a family practitioner. Terro received worker's compensation benefits from May 10, 1988 through July 5, 1988. However, on May 18, 1988, he returned to light duty work until June 7, 1988, during which time he was paid both regular wages and workers' compensation benefits. He remained under the care of Dr. Bernard after he ceased working for a second time from June 7, 1988 to July 6, 1988, when he was released by Dr. Bernard to return to full duty employment.

According to Terro, although he returned to full duty employment in July of 1988, he continued to experience pain in his neck and right shoulder. His job entailed carrying awkward and heavy equipment such as toolboxes, gas detectors, cameras, and wires over and around many "obstacles" located on oil rigs. In March, 1989, Terro was seen by Dr. Jack Hurst, a neurosurgeon, whose neurological examination revealed no objective signs of injury. Dr. Hurst conducted several diagnostic tests including a myelogram, a post-myelogram CT scan, and a magnetic resonance imaging (MRI) test, all of which revealed no significant disc abnormalities and no nerve root impingement. On June 7, 1989, Dr. Hurst referred Terro to Dr. John Cobb, an orthopedic surgeon, for further evaluation. However, he was unable to see Dr. Cobb because Hartford declined to guarantee payment for Dr. Cobb's services, and Terro could not otherwise afford the cost of the evaluation. Dr. Hurst subsequently referred plaintiff to a physical therapist, Patricia Boulet, who first saw him on August 8, 1989 and detected muscle spasms in Terro's neck. Terro underwent therapy on a regular basis from this date through the hearing date of this matter, January 1, 1991. According to Terro, the therapy provided only temporary relief from his neck and shoulder pain. The therapist requested that Terro be placed on light duty work on several occasions during 1989 and 1990. WMCO complied with her requests when made.

On March 14, 1990, while being transported in a helicopter from an offshore oil rig, Terro's pain was allegedly aggravated by the helicopter's vibration. He saw Dr. Hurst on this date and complained once again of neck and right shoulder pain. He did not return to work after this date, and, on June 25, 1990, WMCO terminated his employment and hired someone to replace him. On July 3, 1990, Terro underwent a second MRI which revealed a right sided spondylosis at the C5-6 level. On July 12, 1990, plaintiff filed this claim with the OWC. Defendants filed an answer in which they urged that, because the accident occurred in 1988, plaintiff's right to claim benefits had prescribed.[1] On December 13, 1990, Terro underwent an independent medical examination performed by Dr. John Clifford, a neurosurgeon, who found no positive objective findings of injury to the neck and upper extremities.

At the hearing before the OWC, Terro testified that, since the accident, he has had continuous muscular pain problems in his neck and right shoulder. Since his last day of work with WMCO, he earned approximately $460 playing accordion in a Cajun French band. He stated that playing music tends to aggravate his neck and shoulder pain on the day after he plays. He has not worked steadily since March 14, 1990, nor has he been offered employment. As of the hearing date, Terro felt that he could not successfully return to his old job but would at least attempt full duty work if given the opportunity. In late 1990, he applied for unemployment benefits, which were contested by WMCO.

Kenneth Boudreaux, WMCO's general manager, testified that, after Terro left on March 14, 1990, he informed Terro not to return to work until he was fully capable *642 of performing his job. Boudreaux explained that this advice was meant to prevent Terro from suffering further injury. He regularly contacted Terro after this date to check on his progress. He stated that WMCO tried to cooperate with Terro as much as possible and that Terro knew "he could talk to us" anytime. Finally, in late June, he decided to terminate Terro's employment with WMCO. At the time, it was evident that Terro would not be returning anytime soon, and the company was in need of personnel to handle its increasing volume of business. According to Boudreaux, WMCO contested Terro's right to receive unemployment benefits because, in his judgment, Terro was incapable of working at his former employment due to his personal physical problems.

Dr. Hurst, plaintiff's treating physician, testified by deposition taken January 1, 1991, two days prior to the hearing. He first examined Terro on March 22, 1989, at which time Terro complained of cervical pain radiating into his right shoulder region. He characterized the first round of diagnostic tests performed in 1989 as "unremarkable" and advised Terro to continue with conservative treatment, eventually recommending physical therapy. As for the July 1990 MRI which revealed C5-6 spondylosis, Dr. Hurst stated that there was no correlation between the condition and plaintiff's physical symptoms. Specifically, he explained that, with a C5-6 level hernia, radiating pain would be symptomatic into the arm to the thumb and forefinger, not just to the shoulder. Dr. Hurst opined that plaintiff suffered a musculoligamentous injury which would be best resolved by returning to heavy duty, strenuous activity. He thought that Terro was capable of returning to this level of employment activity.

Dr. Clifford testified by deposition taken December 27, 1990.

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619 So. 2d 639, 1993 WL 145442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terro-v-wmco-inc-lactapp-1993.