Austin v. Howard Discount Stores, Inc.

• Decision Date: 31 October 1990
• Docket Number: No. 21,749-CA,21,749-CA
• Citation: 569 So.2d 659
• Parties: Timothy R. AUSTIN, Plaintiff, v. HOWARD DISCOUNT STORES, INC. and Continental Insurance Co., Defendants. 569 So.2d 659
• Court: Court of Appeal of Louisiana — District of US

Page 659

569 So.2d 659

Timothy R. AUSTIN, Plaintiff, v. HOWARD DISCOUNT STORES, INC. and Continental Insurance Co. Defendants.

No. 21,749-CA.

569 So.2d 659

Court of Appeal of Louisiana Second Circuit.

Oct. 31, 1990.

Davenport, Files & Kelly by J. Edward Patton, II, Monroe, for plaintiff.

Blackwell, Chambliss, Hobbs & Henry by Sam O. Henry, III, West Monroe, for defendants.

Before SEXTON, LINDSAY and HIGHTOWER, JJ.

HIGHTOWER, Judge.

In this worker's compensation case, defendants, Howard Discount Stores, Inc. ("Howard's") and its insurer, appeal a judgment granting plaintiff total and permanent disability benefits, plus past and future medical expenses. For reasons herein expressed, after reversing the permanent and total disability award, we remand for a determination of appropriate benefits.

FACTS

Plaintiff, Timothy R. Austin, normally supervised the opening and remodeling of new stores for Howard's, and his duties had entailed no manual labor for seven or eight years. However, beginning in March 1985, he was temporarily assigned to an unskilled carpenter's job during an office remodeling project in Monroe. His activities at that work exposed him to dust, dirt, fiberglass, and other materials commonly associated with such an undertaking. Approximately one month later, he suffered a blackout while driving home at the end of the day and was immediately hospitalized. Dr. Herschel Harter, an internist and nephrologist, initially believed the problem resulted from hypertension and sinusitus. He therefore released his patient on medication following a week in the hospital.

Plaintiff then returned to the remodeling project until May 1985, when he left to supervise the closing of a store in Oklahoma. Several weeks later, during a visit home to Monroe, he complained of a "rattle" in his chest and entered the hospital. On that occasion, Dr. Harter enlisted the assistance of Dr. Robert Sarama, a board-certified pulmonary specialist, whose initial impressions suggested pneumonia as the most likely cause of the disorder. After being treated for that possibility and released from the hospital, plaintiff returned to his work in Oklahoma. On August 7, 1985, after again returning to Louisiana, a biopsy procedure led to a diagnosis of interstitial lung disease. Thereafter, plaintiff made frequent medical visits, but continued to be employed and to receive his normal salary until February 2, 1987, when his job ended during Howard's termination of business.

Plaintiff did not file a worker's compensation claim with his employer until July 1986. He would later allege that, until that time, he was unaware that his condition was occupationally related. Howard's compensation insurer quickly arranged a medical examination by Dr. Judson A. Tillinghast, a pulmonary specialist, who acknowledged that a worsening of chest X-rays and symptoms appeared after the initial blackout.

Months later, in January 1987, plaintiff inquired about the status of his claim at the Office of Worker's Compensation. In response, he received that department's recommendation, dated February 27, 1987, declining his claim for compensation on grounds of prescription, but conceding he was entitled to medical benefits. Plaintiff accepted the findings related to medical benefits, but rejected the prescription determination.

This suit, claiming total and permanent disability benefits, followed. Defendants' answer pled prescription and also contended that no causal connection existed between plaintiff's condition and his employment. After hearing the prescription exception with the merits, the trial court found in plaintiff's favor, awarding $254 weekly in total and permanent disability benefits beginning February 3, 1987. The judgment also granted past medical expenses ($59,616.71), as well as all such future bills.

Defendants now appeal, specifying that the trial court erred in 1) overruling the exception of prescription, 2) finding the lung disease work-related, 3) finding plaintiff totally and permanently disabled, and 4) awarding future medical expenses.

DISCUSSION

It is well established that a trial court's finding of fact may not be set aside on appeal in the absence of manifest error or clear wrongness, and where there is conflict in the testimony, reasonable inferences of fact should not be disturbed on review. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979); Canter v. Koehring Co., 283 So.2d 716 (La.1973); Kennedy v. Bearden, 471 So.2d 871 (La.App.2d Cir.1985); Brents v. Gulf Ins. Co., 465 So.2d 860 (La.App. 2d Cir.1985), writ denied, 469 So.2d 984 (La.1985). When a trial court's findings are reasonable in light of the entire record, an appellate court may not reverse a choice between two permissible views of the evidence. Rosell v. ESCO, 549 So.2d 840 (La.1989). We accordingly examine the conclusions of the trial court in light of the foregoing legal precepts.

Prescription

LSA-R.S. 23:1031.1 E states:

All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:

(a) The disease manifests itself.

(b) The employee is disabled from working as a result of the disease.

(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.

Notice filed with the compensation insurer of such an employer shall constitute a claim as required herein.

This court and others have construed this provision as listing the precipitating conditions in the conjunctive and, thus, requiring that all three exist to commence the running of the prescriptive period. Brown v. City of Monroe, 521 So.2d 780 (La.App.2d Cir.1988); Thornell v. Payne and Keller, 442 So.2d 536 (La.App. 1st Cir.1983), writ denied, 445 So.2d 1231 (La.1984); Naquin v. Johns-Manville Sales Corp., 456 So.2d 665 (La.App. 5th Cir.1984).

As related to prescription and LSA-R.S. 23:1031.1 E, the trial court's written reasons for judgment stated:

The court finds from the evidence presented that plaintiff's disease manifested in July or August 1985, that he was disabled from working as a result of the disease on February 2, 1987, and that he knew, or had reasonable grounds to believe, the disease was occupationally related on and prior to July 8, 1986. Accordingly, the exception of prescription is overruled.

The determination that the disease manifested itself in July or August 1985 is clearly supported by the record. After the blackout incident in March 1985, plaintiff's condition obviously deteriorated. As stated earlier, Dr. Harter originally believed his patient suffered from hypertension and sinusitus. However, continued problems, such as the development of pneumonia in May 1985, along with tests and evaluations performed by Dr. Sarama, resulted in the discovery of interstitual lung disease in August 1985. Although neither plaintiff nor his treating physicians may have been cognizant of the malady in March 1985, it is evident that the disease was perceived by July or August of that year.

On the other hand, the record reflects that plaintiff's disability occurred long prior to February 2, 1987, the date fixed by the lower court. Interpreting LSA-R.S. 23:1031.1 A, the Supreme Court in LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779 (1967), concluded that an employee is "disabled" when he cannot perform the same or similar work as before contraction of an occupational disease, and not until such disablement does prescription begin. ¹ Dr. Harter stated that by August 1985, plaintiff could not have resumed his normal activities. Indeed, plaintiff acknowledged that he never resumed normal duties after returning to work in the summer of 1985, but, instead, was regularly in and out of doctors' offices and the hospital and frequently left work early because of sickness. In his own words, he was "just mostly on the payroll." His testimony further implied that his remaining in defendant's employ served primarily to prevent the loss of certain insurance benefits. Thus, for purposes of prescription, it can be said that disability presented itself no later than August 1985.

Neither does the record support a conclusion that only by July 8, 1986 did plaintiff know or have reasonable grounds to believe his disease was occupationally related. Instead, plaintiff himself testified that, beginning in the summer of 1985, he suspected the relationship but did not believe it was compensable under the Worker's Compensation Act. Of course, the provisions of LSA-R.S. 23:1031.1 E do not concern a realization of whether a disease is compensable, but rather pertain simply to when an employee discovers his disorder is occupationally related. Also, the testimony of Dr. Sarama, that following a biopsy procedure he customarily discusses the cause of a condition with a patient, indicates the likelihood of early knowledge by plaintiff that his disease was related to his work.

Nevertheless, even with a determination that all three of the precipitating conditions came into existence by August 1985, plaintiff still filed his claim timely under LSA-R.S. 23:1031.1 I, which states:

Notice of the time limitation in which claims may be filed for occupational disease or death resulting from occupational disease shall be posted by the employer at some convenient and conspicuous point about the place of business. If the employer fails to post this notice, the time in which a claim may be filed shall be extended for an additional six months.

Howard's employees, James Kelly, Kenneth Blaycock, Michael Posey, and Ted Davidson, all bolstered testimony by plaintiff that his employer failed to properly post notices concerning occupational diseases. Kelly, security director for the entire company, stated permanent bulletin boards were not provided in some stores, and that the remodeling project where plaintiff worked necessitated the relocation of the board several times during the period in...