95-1236 La.App. 3 Cir. 8/7/96, Faul v. Bonin

• Decision Date: 07 August 1996
• Citation: 678 So.2d 627
• Parties: 95-1236 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 627

678 So.2d 627

95-1236 La.App. 3 Cir. 8/7/96

Ronald FAUL, Plaintiff-Appellant, v. Tilden A. BONIN, Contractor, Defendant-Appellee.

No. 95-1236.

Court of Appeal of Louisiana Third Circuit.

Aug. 7, 1996.

Writ Denied Nov. 15, 1996.

Thomas Joseph DeJean, Felix Anthony DeJean III, Opelousas, for Ronald Faul.

William Michael Stemmans, Thomas J. Adair Jr., Baton Rouge, for Tilden A. Bodin Contractor.

Before COOKS, DECUIR, PETERS, AMY, and GREMILLION, JJ.

[95-1236 La.App. 3 Cir. 1] GREMILLION, Judge.

The plaintiff, Ronald Faul, appeals a decision of the Office of Workers' Compensation Administration awarding him temporary total disability benefits and medical expenses. The hearing officer further held that the defendant, Tilden A. Bonin Contractor, Inc., a self-insured corporation, was not arbitrary or capricious in its handling of Faul's claim, thus denying his claim for penalties and attorney's fees.

After a hearing on the merits, the hearing officer concluded that Faul suffered an accident on August 30, 1994, while employed as a painter/sheetrock finisher for Bonin. She held that Faul reached maximum medical improvement on May 3, 1995, and awarded him temporary total disability benefits in the amount of $267.00 per week for the period between August 30, 1994 and May 3, 1995. However, the hearing officer found that any residual disability suffered by Faul could be attributed to his preexisting condition, and as a result, Bonin was not [95-1236 La.App. 3 Cir. 2] responsible for the payment of any benefits or medical bills incurred by Faul after May 3, 1995, nor was it responsible for his recommended surgery. The hearing officer finally held that Bonin was not arbitrary, capricious, or without reasonable cause in its failure to initially pay indemnity or medical benefits, or authorize the surgery.

After reviewing the record, we find that the hearing officer committed manifest error and was clearly wrong in finding that Faul reached maximum medical improvement on May 3, 1995. For this reason, we reverse her determination that Faul's entitlement to temporary total disability benefits ended on May 3, 1995, and award penalties and attorney's fees because of Bonin's arbitrary, capricious, and wilful refusal to pay benefits.

FACTS

On August 30, 1994, Faul was employed by Bonin as a painter and a sheetrock finisher. A sheetrock finisher applies a sheetrock compound, commonly called "mud," to a wall in order to prepare it for painting. One way of applying mud to a wall is by placing the mud on a "blade" and applying the blade to the wall with the use of pressure so that the mud is transferred to the wall in an up and down motion. Faul was instructed to "float" a wall heavily, or in other words, place a large amount of mud on the wall. He was holding a twelve inch blade in his right hand and a pan of mud in his left hand, and had just squatted down while applying mud to the bottom of the wall. While he was rising up to a standing position, he felt a stabbing pain in his back, which cut his breath. He was unable to straighten up, so he twisted around thinking that he pulled a muscle in his back. A co-worker, Leander "Duke" Williams, Jr., witnessed the accident and heard Faul say "ow." When questioned by Williams, Faul said he had a catch in his back and that the pain was getting worse. [95-1236 La.App. 3 Cir. 3] Fifteen to twenty minutes after the accident, Faul was taken to the Lafayette General Hospital.

In the emergency room, Faul complained of pain in his lower back radiating down into his legs. A CT scan was performed, revealing a large focal disc herniation at the L4-5 level, which was central and left paracentral. It also revealed spondylolysis at the L5 level with grade I spondylolisthesis. The emergency room doctor diagnosed Faul as having low back pain with L5 radiculitis and an intervertebral disc herniation of the L4-5 disc. Faul was given the name of Dr. Thomas Butaud, an orthopedic surgeon in Opelousas, and instructed to see him for further care.

Faul saw Dr. Butaud the next day, and complained of pain in his lower back and both legs, the right leg worse than the left. After examining him, Dr. Butaud studied the x-rays from the emergency room, which revealed a spondylolysis at L5-S1, with spondylolisthesis at L5-S1, and disc pathology at L4-5. He diagnosed Faul with a herniated disc and lumbosacral strain.

Dr. Butaud commenced treating Faul conservatively with medication and epidural steroids. The first epidural resolved some of Faul's symptoms, so a second epidural was scheduled, after which he still experienced discomfort. A third epidural was administered, but it also did little to resolve Faul's symptoms. He still experienced discomfort in his back and complained of a burning sensation in his legs and feet. Dr. Butaud requested Bonin's approval for a lumbar myelogram and CT scan. An MRI was performed on March 22, 1995, which revealed a moderate size central disc herniation at the L4-5 disc level and bilateral defects of the pars L5 without associated subluxation. Dr. Butaud stated that Faul required surgical intervention; a discectomy at the L4-5 region along with a decompression at the L5-[95-1236 La.App. 3 Cir. 4] interspace and a fusion from L4-S1.

Faul suffered two previous injuries to his back. The first injury occurred on December 29, 1978, when Faul was pulling cables off of an eighteen wheeler. On January 18, 1982, Faul was involved in a car accident and suffered another back injury. He was treated by Dr. James Lafleur both times. Following the first injury, Faul was diagnosed as having lumbosacral L5 spondylolisthesis, grade I. The second injury resulted in a diagnoses of lumbar L5-S1 spondylolisthesis, less than grade I, with superimposed lumbar myofascial strain. In 1979, Dr. Lafleur told Faul that the only alternative treatment he could recommend was surgery, a probable Gill procedure with posterolateral fusion, and evaluating him pre-operative for a herniated nucleus pulposus with lumbar myelography.

On February 14, 1995, Bonin had Faul examined by Dr. Lafleur for a second opinion. After reviewing the CT scan and the MRI, Dr. Lafleur's diagnoses was that Faul had low back pain secondary to lumbar L4-5 disc herniation, superimposed onto spondylolisthesis at L5-S1. Dr. Lafleur also recommended a discectomy at the L4-5 level, as well as a fusion, bilaterally, posterolaterally from L4 to the sacrum.

ISSUES

Two issues are presented by Faul on appeal: whether the hearing officer erred in finding that he reached maximum medical improvement on May 3, 1995, and in failing to award penalties and attorney's fees. On appeal, Bonin presents the issue of whether the hearing officer erred by failing to introduce into evidence the deposition of Dr. James Lafleur.

[95-1236 La.App. 3 Cir. 5] LAW

It has long been recognized by this state that the workers' compensation act is remedial in nature. "In order to effectuate the humane policies it reflects, the law is liberally construed in favor of the injured employee." Maxie v. Brown Industries, Inc., 95-19, p. 5 (La.App. 3 Cir. 5/31/95); 657 So.2d 443, 445.

A claimant in a workers' compensation action bears the burden of establishing by a preponderance of the evidence a causal connection between an employment accident and the disability he now complains of. Peveto v. WHC Contractors, 630 So.2d 689 (La.1994). "In order for the employee to recover, it must be determined that the employment somehow caused or contributed to the disability, but it is not necessary that the exact cause be found." Walton v. Normandy Village Homes Ass'n, Inc., 475 So.2d 320 (La.1985). The claimant has carried his burden when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. East v. Crying Eagle Construction, 95-560 (La.App. 3 Cir. 11/22/95); 664 So.2d 746, writ denied, 95-3077 (La. 2/16/96); 667 So.2d 1057.

A claimant suffering from a preexisting infirmity is not disqualified from receiving benefits if he proves that the "work-injury aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed." Walton, 475 So.2d at 324. In such cases, the claimant is aided by a presumption recognized in Walton:

[W]hen an employee proves that before the accident he had not manifested disabling symptoms, but that commencing with the accident the disabling symptoms appeared and manifested themselves thereafter, and that there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the activation of the disabling condition, the employee's work injury is presumed to have aggravated, accelerated or combined with his preexisting disease or infirmity to produce his disability.

Id. at 691.

[95-1236 La.App. 3 Cir. 6] Once the claimant establishes the presumption of causation, the burden shifts to the employer to present evidence and persuade the trier of fact that more probably than not the work injury did not accelerate aggravate, or combine with the preexisting infirmity to produce the claimant's disability. Peveto, 630 So.2d 689.

In order to receive compensation for temporary total disability, the claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. La.R.S. 23:1221(1)(c). "To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable; that is, much more probable than its nonexistence." Bundren v. Affiliated Nursing Homes, 94-808, p. 2 (La.App. 3 Cir. 2/1/95); 649 So.2d 1177, 1179.

In her reasons for judgment, the hearing officer stated:

Although, Faul may have worked without pain for some time prior to the date of loss, in this case, the fact of the matter is that on two separate occasions surgery was...