Duncan v. State, Dept. of Transp. and Development

• Decision Date: 24 January 1990
• Docket Number: No. 21147-CA,21147-CA
• Citation: 556 So.2d 881
• Parties: Lynn W. DUNCAN, Appellee, v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Appellant. 556 So.2d 881
• Court: Court of Appeal of Louisiana — District of US

Page 881

556 So.2d 881

Lynn W. DUNCAN, Appellee, v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Appellant.

No. 21147-CA.

556 So.2d 881

Court of Appeal of Louisiana, Second Circuit.

Jan. 24, 1990.

Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for appellant.

Broussard, Bolton, Halcomb & Vizzier by Roy S. Halcomb, Jr., Alexandria, for appellee.

Before SEXTON, NORRIS and LINDSAY, JJ.

NORRIS, Judge.

The plaintiff, Lynn Duncan, sued his employer, the State of Louisiana Department of Transportation and Development (DOTD) in October 1987 for workers compensation benefits allegedly arising from an on-the-job injury of August 1984. DOTD filed exceptions of prescription which were sustained prior to trial as to temporary total and permanent total benefits. After trial, the court determined that Duncan's claims for permanent partial benefits were also prescribed but that those for supplemental earnings benefits ("SEB") were not. Finding a causal link between the injury and the current disability, the court awarded SEB and some unpaid medical expenses (without, however, interest on the medicals). The court denied Duncan's claims for penalties and attorney fees.

DOTD appealed suspensively, urging that Duncan is not disabled, is not unable to perform any kind of work, is not entitled to SEB and did not prove a causal link between the accident and the injury. Duncan answered the appeal, urging he was entitled to penalties and attorney fees, to interest on the past due medicals, and to weekly benefits for three weeks during which he drew sick leave. He also claims the district court erred in sustaining DOTD's exceptions of prescription.

We will affirm in part, amend in part and render. The findings of current disability and causation are chiefly factual and are not plainly wrong. The court also did not commit legal error in awarding SEB or in holding that the other comp claims, including three additional weeks of alleged total disability, had prescribed. The denial of penalties and attorney fees was not an abuse of discretion. The award of medicals, however, should have included legal interest.

Facts

Duncan, who had worked for DOTD since 1971, was at the time of the accident an Engineering Specialist II earning $1,913 a month. He was 53 years old and had no prior back problems. He lived in Bastrop but was responsible for inspecting electrical components on bridges statewide. For this purpose he had a state car and travel allowance. On a trip to Baton Rouge in August 1984, he was in sluggish traffic on Airline Highway when someone rear-ended him. There was little damage to either car, so DOTD refers to the impact as "slight," but Duncan called it a "pretty big lick" from a car going 10-15 m.p.h. Duncan promptly reported the accident and pain in his neck and back. While in Baton Rouge he saw an orthopedist, Dr. McConnell.

He returned to Bastrop and saw his family doctor, Dr. Garrett. Dr. Garrett noted cervical and lumbar sprains and strain. X-rays showed loss of normal curvature of the cervical spine, slight reversal of curvature at L1-2, and an old compression fracture centrum of L4. He prescribed anti-inflammatory drugs, steroids, muscle relaxants and physical therapy. Dr. Garrett felt Duncan was unable to work. Duncan therefore was off the job from the date of the accident, August 23, until October 8. He received weekly benefits and medicals for this period. According to DOTD, Dr. Garrett gave Duncan a complete release on October 8. Duncan testified he still had back pain when he returned to work; Dr. Garrett corroborated this, but felt Duncan had "recovered sufficiently to return to work." Garrett's Dep., 10.

Though he was working again and his neck pain had resolved, Duncan continued to suffer persistent lower back pain which gradually worsened. Driving, which was a large part of his job, aggravated the pain. He continued seeing Dr. Garrett and calling him often. Dr. Garrett mostly administered thermal treatments and prescribed painkillers. By February 1985, Dr. Garrett felt Duncan had reached a plateau and could tolerate working in pain if he received intermittent treatment.

Because Dr. Garrett's office burned down, Duncan went to a Bastrop chiropractor, Dr. Hawthorne, in April 1985. Dr. Hawthorne's report notes that the accident was the only cause of Duncan's condition. The pain still persisted, so in late 1985 and early 1986 Duncan saw a Baton Rouge orthopedist, Dr. Plauche. Dr. Plauche diagnosed osteoarthritis of the lumbosacral spine and advanced degenerative disc disease at L5-S1. He prescribed pain killers, anti-inflammatories and a back brace. He found that Duncan was unable to perform his usual occupational duties. Duncan nevertheless continued to work throughout this time. He wore the back brace and took the medicine but still suffered.

In May 1986 Duncan stopped working temporarily because of back pain. He returned to Dr. Garrett for the first time since July 1985. Dr. Garrett resumed heat treatments and medication; he also diagnosed prostatitis. In a subsequent report, Dr. Garrett said the prostatitis was work-related in that it was caused by all the driving Duncan's job required and it aggravated the original back injury. DOTD paid medicals during this period. Duncan missed three weeks of work, during which he thought he received workers comp weekly benefits, though he was somewhat confused on this point. Duncan's supervisor, Mr. Becnel, could not determine from an abstract of the sick leave records whether Duncan attributed this absence to the accident, but he conclusively stated that there was no claim for workers comp at the time. Duncan returned to work on June 9 despite unresolved back pain.

In May 1987 Duncan was involved in an incident which DOTD argues was more influential than the back pain in convincing Duncan to quit working. On May 8, a Friday afternoon, Duncan was driving his state car home from a job in Haynesville, Louisiana. He started drinking (against department regulations), got very drunk and picked up a hitchhiker (also against regulations). They stopped at a fried chicken stand on Hwy. 165 in Bastrop. Duncan went inside and, quite drunk, created a scene; the police had to be summoned. Meanwhile the hitchhiker drove off in the state car. The police brought Duncan home without arresting him; he reported the car theft to them. Later he told his supervisor that a state car had been stolen. The car was found a few days later in Bossier City. Duncan was back at work the following week and continued working after this.

Mr. Becnel, the supervisor, brought Duncan in for a disciplinary meeting on June 6; this was not Duncan's first episode of driving a state car drunk. Everyone agrees that at this meeting DOTD suspended Duncan without pay and ordered him to go through CDU at the V.A. Hospital. Duncan ultimately received his certificate of completion on August 7. Becnel also claims he told Duncan at the June 6 meeting that he would be transferred to Baton Rouge, placed on a streetlight repair crew, and relieved of his state car and travel allowance. Duncan testified, however, that Becnel did not tell him all of this until August, after the suspension. According to DOTD, Duncan simply never reported to the new job in Baton Rouge.

Duncan met with Becnel in August and told him he could not perform the old job, which required hours of driving, or the new job, which would require him to stand or sit at a work station while repairing streetlights and perhaps to lift them, because of his back. Becnel's recollection of the meeting was that Duncan excused himself from work because of double vision. DOTD argued Duncan must have quit because the new job deprived him of the travel, car and allowance that he had grown accustomed to and abused.

Soon afterward, Duncan returned to Dr. Garrett for several visits. Dr. Garrett now noted changes at L4-5 and S1 and resumed thermal treatment and medications. He felt Duncan was disabled and could not perform his old job. He also thought that by October 1987 Duncan had reached a plateau and would need periodic treatment indefinitely.

Duncan lodged a claim with the Office of Workers Compensation on August 19, 1987. The recommendation was rejected and suit followed on October 7. Before trial Duncan saw two more physicians whose depositions were introduced. Dr. Foster, the plaintiff's expert, found almost complete degeneration of L5-S1, degenerative changes at L5-S1, and retrolisthesis at L4-5. He felt the degenerative changes were causing Duncan's ongoing pain. However, he said a patient may have this condition without pain and that a trauma may make it symptomatic; this is what he felt happened to Duncan. He advised Duncan to avoid any activity that involves sitting or standing for a long time, or bending, stooping or lifting heavy objects. This included the job as an Engineering Specialist II, though Dr. Foster did not outrule lighter work.

Dr. Cannon, the defense expert, also found disc degeneration, together with congenital problems. He felt that Duncan's degeneration had begun long before the accident of August 1984. He conceded the accident would cause some aggravation, but because the impact was so slight (judged by the very minor damage to Duncan's car), this aggravation should have lasted no more than 12 months. He stated the current problems were related not to the accident but to the pre-existing condition. Moreover, he felt Duncan could drive a car or repair streetlights if he wore a lumbosacral corset, sat in a hot tub twice a day, stretched regularly and took anti-inflammatory drugs.

Action of the trial court

The trial court prepared long and thoughtful written reasons for judgment. At the outset it concluded that Duncan's claims for temporary total, permanent total and permanent partial disability were prescribed since they were lodged more than one year after the last weekly compensation...