City of Baton Rouge v. Noble

• Decision Date: 22 November 1988
• Docket Number: No. CA,CA
• Parties: CITY OF BATON ROUGE and Parish of East Baton Rouge v. Arthur NOBLE. 87 1150.
• Court: Court of Appeal of Louisiana — District of US

Page 467

535 So.2d 467

CITY OF BATON ROUGE and Parish of East Baton Rouge v. Arthur NOBLE.

No. CA 87 1150.

Court of Appeal of Louisiana,

First Circuit.

Nov. 22, 1988.

Rehearing Denied Jan. 10, 1989.

Writ Denied March 10, 1989.

Stephen R. Wilson, Baton Rouge, for plaintiff-appellee City of Baton Rouge, etc.

Clifton O. Bingham, Jr., Baton Rouge, for defendant-appellant Arthur Noble.

Before CARTER, LANIER and LeBLANC, JJ.

LANIER, Judge.

This action commenced as a suit by an employer seeking a declaratory judgment that it had discharged its obligations owed to its employee under the Louisiana Worker's Compensation law. The employee answered and filed a reconventional demand for compensation benefit payments, medical expenses, rehabilitation costs and statutory penalties. The trial court judge found as a fact that the employee had a temporary total disability and this disability was resolved by February 7, 1986, and rendered judgment on the main demand in favor of the employer and dismissed the reconventional demand. The employee took this devolutive appeal.

FACTS

Arthur Noble was first employed by the City of Baton Rouge and the Parish of East Baton Rouge (City-Parish) in 1972. Noble's preemployment physical examination at that time reflected a 30% disability to his lower extremities. This disability was received during Noble's military service in the Navy. In 1974, Noble left the City-Parish. In 1979, he was reemployed by the City-Parish where he worked as an engineer aide doing drafting until about November of 1985.

On May 8, 1983, Noble was injured in a non-job-related automobile accident. As a result of that accident, Noble sustained injuries to his back, legs, and neck, and sought treatment from Dr. Gary Black, a chiropractor.

On July 10, 1984, while still receiving treatment from Dr. Black for his non-job-related injuries, Noble slipped and fell while at work. On July 11, 1984, Noble filed a report with the City-Parish concerning the accident. In the report, he described his injuries as "elbow, both knees, back, head & other parts."

After the July 10, 1984 accident, Noble continued receiving treatment for his back from Dr. Black; and he commenced receiving treatment for his knee from Dr. Alan Farries, an orthopedic surgeon. Dr. Farries last saw Noble on October 5, 1984. In a letter, dated January 13, 1985, addressed to the Office of Risk Management, Dr. Farries stated, "I feel Mr. Noble has made a good recovery from his injuries with minimal, if any, residual disability."

On December 10, 1984, Noble was once again injured in a job-related accident when a City-Parish vehicle, in which he was a passenger, was struck from behind. In an accident report which Noble filed the next day with the City-Parish, he indicated lower back pain. After this accident, Noble continued seeing Dr. Black. He also sought treatment from Dr. Chavers, a City doctor, and from a Dr. Clifford.

The City-Parish paid weekly workers' compensation benefits and medical expenses for the two job-related accidents until May 23, 1986. ¹ On July 17, 1986, Noble filed a claim with the Office of Worker's Compensation Administration (OWCA) claiming he was still entitled to workers' compensation benefits. On August 14, 1986, OWCA rendered its recommendation. The City-Parish rejected the recommendation, and this suit resulted.

ADMISSIBILITY OF CHIROPRACTOR'S OPINIONS

(Assignment of Error Number 1)

Noble argues that the "trial court erred in refusing to consider the testimony of Dr. Gary D. Black, D.C."

In his reasons for judgment, the trial judge stated, in pertinent part, the following:

[T]he Court refused to consider the opinion testimony of Dr. Black for treatment rendered when his renewal licenses were not recorded. Plaintiff's Exhibit 26 indicates that Dr. Black recorded his 1976-1984 renewal license in November 1984.

The 1984-85 renewal was not recorded until February 2, 1987. In Ensminger v. McCormick, 489 So.2d 1316 (La.App. 1st Cir.1986), the Court stated that recordation of renewal licenses must be done properly.

Noble argues that, even though Dr. Black failed to timely record his renewal licenses with the clerk of court, his competency was not affected and he should have been allowed to testify.

La.R.S. 37:2810 provides:

Beginning with the calendar year 1975, each license to practice chiropractic in this state shall be renewed annually on or before October 31st of each year, upon payment of the renewal fee prescribed in R.S. 37:2809 and the presentation to the board of a certificate showing satisfactory attendance of at least one two-day chiropractic educational seminar or convention approved by the board. However, for good and reasonable cause, the board may waive the convention or seminar requirements.

At the time of trial, December 8, 1986, La.R.S. 37:2811(A) ² provided, as follows:

Every licensee shall record his license with the clerk of court for the parish in which he practices, and until recorded, the holder thereof shall not be entitled to practice chiropractic in this state.

In Ensminger v. McCormick ³, 489 So.2d 1316 (La.App. 1st Cir.), writ denied, 493 So.2d 1219 (La.1986), this court held that, if a chiropractor's renewal license was not recorded, La.R.S. 37:2811 precluded him from the practice of chiropractic in this state, and a person performing examinations without a license was precluded from testifying as an expert witness regarding those examinations.

At trial, Noble's attorney judicially confessed ⁴ that Dr. Black's renewal license for the years 1977 through 1984 had not been filed until November 15, 1984, and, also, that the clerk's office did not have a renewal for the period of October 31, 1984, through October 31, 1985. The trial judge did not err in refusing to consider Dr. Black's testimony during this time span.

This assignment of error is without merit.

RECOVERY OF CHIROPRACTOR CHARGES

(Assignment of Error Number 3)

Noble argues that the "trial court erred in refusing to allow recovery of the charges for Dr. Gary D. Black, D.C. incurred during the period his renewal license was not timely recorded."

La.R.S. 23:1203(A) provides, in pertinent part, as follows:

[T]he employer shall furnish all necessary medical, surgical, and hospital services, and medicines, or any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services. [Emphasis added.]

According to Black's Law Dictionary, p 803 (5th Ed.1979), the definition of "legal" is, "1. Conforming to the law; according to law; required or permitted by law; not forbidden or discountenanced by law; good and effectual in law."

Dr. Black's renewal licenses for the years 1977 through 1984 were not filed until November 15, 1984, and the clerk had no record of his renewal license for October 31, 1984, through October 31, 1985. According to La.R.S. 37:2811, for the years 1977 through 1985, Dr. Black was not entitled to practice chiropractic in this state. Therefore, his charges for those years were not "legal."

Noble further contends that the "trial court further erroneously based his decision not to order payment of Dr. Black's charges on the reason that '... no proof has been made as to the expenses incurred for treatment for only the job related accidents.' " Since we have ruled that Dr. Black's charges were not "legal" charges under La.R.S. 23:1203(A), there is no need for us to address this issue.

This assignment of error is without merit.

NATURE AND EXTENT OF DISABILITY

(Assignment of Error Number 2)

Noble argues that the trial court erred in finding that his temporary total disability was resolved sometime before February 7, 1986. Noble contends that the trial judge was manifestly erroneous because he based his decision on the testimony of one witness, Minnie Owens, who was directly contradicted by several other lay witnesses and virtually all of the medical testimony. Noble argues that on July 10, 1984, and on December 10, 1984, he sustained severe and permanent injuries to his cervical and lumbar spine and both of his knees, and that the evidence shows that he has not recovered from these injuries.

An employee in a workers' compensation case has the burden of proving to a legal certainty and by a preponderance of the evidence the nature and extent of his disability. Lewis v. Piccadilly, Inc., 489 So.2d 984 (La.App. 1st Cir.1986); Mix v. Mougeot, 446 So.2d 1352 (La.App. 1st Cir.1984). In his reasons for judgment, the trial judge stated, in pertinent part, the following:

ACCIDENT

The evidence establishes that Noble was involved in two job-related accidents--July 10, 1984, and December 10, 1984.

CAUSATION

Where there is proof of an accident and of the following disability without intervening cause, it is presumed the accident caused the disability. Tucker v. Associated Grocers, 473 So.2d 328 (La.App. 1st Cir.1985). The evidence supports that Noble sustained injury to his knee in the July 10, 1984 accident and some back discomfort from the December 10, 1984 accident.

DISABILITY

The level of proof required for establishing a temporary total disability is by a preponderance of the evidence, whereas, a claimant must prove a permanent total disability by clear and convincing evidence. Price v. Fireman's Fund Ins. Co., 502 So.2d 1078 (La.1987).

This court finds that Noble was temporarily totally disabled due to the job-related accidents, however, that the disability obviously was resolved sometime during Noble's relationship with Ms. Owens. Being unable to determine the exact date, this court finds that the temporary total disability did not extend beyond February 7, 1986.

In deciding whether an employee has proven his claimed disability, the totality of the evidence, medical and lay, must be considered. It is the trial judge's function to determine the weight to be accorded the medical...