95-0264 La.App. 4 Cir. 5/1/96, Vallelungo v. City of New Orleans

• Decision Date: 01 May 1996
• Citation: 673 So.2d 1292
• Parties: 95-0264 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1292

673 So.2d 1292

95-0264 La.App. 4 Cir. 5/1/96

Alphonse VALLELUNGO v. The CITY OF NEW ORLEANS.

No. 95-CA-0264.

Court of Appeal of Louisiana,

Fourth Circuit.

May 1, 1996.

Milton Osborne, Jr., Deputy City Attorney, Avis Marie Russell, City Attorney, New Orleans, for Defendant/Appellant, The City of New Orleans.

Magdalen Blessey Bickford, Louis L. Robein, Jr., Robein, Urann & Lurye, Metairie, for Plaintiff/Appellee, Alphonse Vallelungo.

Before BYRNES, CIACCIO and MURRAY, JJ.

[95-0264 La.App. 4 Cir. 1] MURRAY, Judge.

The City of New Orleans appeals a judgment in favor of a retired fireman finding that his need for a pacemaker was compensable under the Worker's Compensation Act. The judgment found the City liable for future medical expenses arising resulting from the fireman's compensable injury. The hearing officer found that the City was arbitrary and capricious in its refusal to pay medical benefits and awarded attorney's fees of $7,500 and a penalty of twelve percent on all past due benefits.

Alphonse Vallelungo, a twenty-two year veteran fireman began experiencing syncopal (fainting) episodes, as early as November of 1989. After suffering a fainting spell on October 6, 1990, Mr. Vallelungo's internist, Dr. Glen Kesler, referred him to Dr. James McKinnie, a cardiologist. On November 2, 1990, Dr. McKinnie examined Mr. Vallelungo and hospitalized him in order for him to undergo a series of tests, including a coronary angiogram that was performed by Dr. Nick Pappas. Mr. Vallelungo, who had only recently quit smoking, was [95-0264 La.App. 4 Cir. 2] diagnosed as having "sick sinus syndrome", a slowing of the heart's electrical clock. He returned to work for approximately six months after this diagnosis was made.

Mr. Vallelungo was again hospitalized after experiencing a syncopal episode at work on March 21, 1991. While hospitalized, he underwent a cardiac catherization that disclosed evidence of significant coronary artery disease. Dr. McKinnie prescribed several medications, a special diet, and physical rehabilitation. Dr. Pappas and Dr. Kesler requested a series of leaves of absence for Mr. Vallelungo from April 8, 1991 to June 18, 1991, after which time he retired.

Approximately a year after his retirement, Mr. Vallelungo was hospitalized following another fainting episode on June 22, 1992. During this hospitalization, several physicians examined him and concluded that a pacemaker would help his condition. The doctors opined that a pacemaker would regulate the heart beat, which should prevent the fainting episodes. The pacemaker was implanted on June 23, 1992.

Mr. Vallelungo testified that on June 22, 1992 he contacted Ms. Clement, the adjuster at Rosenbush agency who handled his claim for the City. He informed her that he would be undergoing a series of tests and that he might need a pacemaker. At this time Mr. Vallelungo believed that his medical bills were being paid by the City. In August of 1992 he experienced soreness related to the implantation of the pacemaker. He saw Dr. Rudolph Weichert for this problem. Rosenbush paid Dr. Weichert's bill for this examination.

Between September and November of 1992 Mr. Vallelungo received several letters informing him that the bills associated with the procedures performed on [95-0264 La.App. 4 Cir. 3] June 23, 1992 were past due. Some time in November of 1992 Milton Osborne, Deputy City Attorney, instructed Rosenbush to deny payment on all bills associated with the pacemaker implantation.

The City concedes that Mr. Vallelungo's initial condition, "sick sinus syndrome", is covered under the Worker's Compensation Act. It, however, contends that the hearing officer erred when he determined that the pacemaker expenses were covered under the Act because: 1) the need for a pacemaker was not related to the sick sinus syndrome; and 2) Mr. Vallelungo was retired when the pacemaker was implanted. The City also argues that the hearing officer erred when he found it to be arbitrary and capricious for denying payment of the bills related to the pacemaker. ¹

COMPENSABILITY

The compensability of heart and lung diseases in fire-fighters is governed by La.Rev.Stat. 33:2581 which provides, in pertinent part:

Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. Such disease or infirmity shall be presumed to have developed during employment and to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment. (Emphasis added)

As this court has stated:

It is generally accepted that a fireman, as a result of the stress and strain of his work, is predisposed to vascular diseases: our legislature acknowledged this fact in [95-0264 La.App. 4 Cir. 4] enacting LSA-R.S. 33:2581, which provides, inter alia, that heart disease in a fireman is presumed to have developed during employment if the disability manifests itself after five years of tenure.

Landry v. City of N.O., 266 So.2d 492, 495 (La.App. 4th Cir.1972); Accord Rothell v. Shreveport, 626 So.2d 763, 765 (La.App. 2nd Cir.1993), writ denied, 93-3191 (La. 2/11/94), 634 So.2d 379.

While not specifically part of the Worker's Compensation Act, La.Rev.Stat.Ann. 23:1021, et seq., the Heart and Lung Act consistently has been applied to worker's compensation cases involving fire-fighters. Saling v. City of New Orleans, 398 So.2d 1205 (La.App. 4th Cir.1975), writ denied, 401 So.2d 986 (La.1981); McKenzie v. City of Bossier City, 585 So.2d 1229 (La.App. 2nd Cir.1991). Under the statute, once it has been proved by the plaintiff that a covered disease is at issue, the burden shifts to the defendant to prove that the disease was not caused by the fire-fighter's employment. Vincent v. City of New Orleans, 326 So.2d 401 (La.App. 4th Cir.1975), writ denied, 329 So.2d 760 (La.1976).

The City argues that the Heart and Lung Act does not apply to Mr. Vallelungo because he was no longer working as fire-fighter when his heart disease was diagnosed and a pacemaker was ordered. ²

As long as the disease developed during employment, the presumption created by the Heart and Lung Act applies, even though the disease may not manifest itself until after retirement. Attaway v. City of Natchitoches, 94-813 (La.App. 3rd Cir.1995), 651 So.2d 306. In Attaway, the court found the Heart and Lung Act applied to claimant's heart disease although he did not suffer a heart [95-0264 La.App. 4 Cir. 5] attack until after he had retired from the fire department. The court concluded that although Mr. Attaway's heart disease manifested itself after retirement, medical evidence supported the finding that the disease had developed over time and was work-related. Id. at 307.

Although Mr. Vallelungo was not diagnosed with heart disease until March of 1991, the doctors found the fainting spells, dating back to 1989, were related to his heart disease. We find the Heart and Lung Act to be applicable to his heart condition because the evidence shows that Mr. Vallelungo's disease developed during his employment with the fire department. Having determined that the Heart and Lung Act is applicable to this claim, the burden shifts to the City to prove the lack of causation between Mr. Vallelungo's heart disease and his employment. "[U]nless affirmative proof is adduced to prove a lack of causation, the presumption requires that the disabled fireman be entitled under the Act." Rothell, 626 So.2d at 766, citing Vincent v. City of N.O., 326 So.2d 401, 403 (La.App. 4th Cir.1975) (on rehearing), writ refused, 329 So.2d 760 (La.1976).

The only evidence offered by the City to rebut the presumption was a letter from a nurse employed by Intracorp, an auditing company. The letter, dated August 31, 1992, stated that Mr. Vallelungo's hospitalization on June 22, 1992 was "non-work related". The letter did not explain how that determination was made. The City did not have Mr. Vallelungo examined by a physician, and offered no expert testimony that his heart condition could not have been contributed to or aggravated by his work as a fire fighter.

Dr. McKinnie, Mr. Vallelungo's treating physician, testified regarding several risk factors associated with heart disease. He acknowledged that Mr. Vallelungo's family history and his history of smoking could have contributed to [95-0264 La.App. 4 Cir. 6] his heart condition, but could not rule out his occupation as having aggravated or contributed to that condition.

Neither the Heart and Lung Act nor the cases interpreting its application suggest that a claimant must prove that his employment was the only cause of the development of the heart condition. It is sufficient to show that employment contributed, accelerated, or aggravated the condition. Rothell, 626 So.2d at 766.

In Attaway, supra, the court found that the expert for the City of Natchitoches could not exclude the possibility of Mr. Attaway's job as a factor and concluded that the City, therefore, had failed to carry its burden of proving lack of causation.

In McCoy v. City of Shreveport, No. 26,181 (La.App. 2nd Cir. 1/25/95), 649 So.2d 103, a fireman who was diagnosed with sick sinus syndrome that caused syncope was awarded benefits. Mr. McCoy, like Mr. Vallelungo, suffered from fainting spells due to an irregular heart rhythm. Neither the expert called by the City nor by the claimant testified that the Mr. McCoy's heart condition was work-related, but neither could completely rule out his work as a contributing factor. Under this circumstance, the court held that the City had not rebutted the statutory presumption of causation created by La.Rev.Stat.Ann. 33:2581., and found that Mr. McCoy's disability arising from the surgical implant of a pacemaker was compensable under the Workers Compensation and the Heart...