Fontenot v. Citgo Petroleum Corp.

• Decision Date: 22 June 1988
• Docket Number: No. 87-588,87-588
• Citation: 529 So. 2d 69
• Parties: Juanita Parker FONTENOT, Plaintiff-Appellee, v. CITGO PETROLEUM CORPORATION, Defendant-Appellant. 529 So.2d 69
• Court: Court of Appeal of Louisiana — District of US

Page 69

529 So.2d 69

Juanita Parker FONTENOT, Plaintiff-Appellee, v.CITGO PETROLEUM CORPORATION, Defendant-Appellant.

No. 87-588.

529 So.2d 69

Court of Appeal of Louisiana Third Circuit.

June 22, 1988.

McClain, Morgan & Savoy, Robert E. Morgan, Lake Charles, for plaintiff-appellee.

Jones, Tete, Nolen, Hanchey, Swift & Spears, Charles N. Harper, Lake Charles, for defendant-appellant.

Before DOMENGEAUX, STOKER and KING, JJ.

KING, Judge.

The issues presented by this appeal are whether or not the trial court was correct in finding plaintiff's worker's compensation claim had not prescribed, in finding defendant was arbitrary and capricious in not paying weekly worker's compensation benefits, and in awarding expenses incurred by the plaintiff while traveling to obtain physical therapy.

Juanita Parker Fontenot(hereinafter plaintiff) filed suit against Citgo Petroleum Corporation(hereinafter defendant) to recover weekly worker's compensation benefits and medically related expenses after she suffered an injury to her legs while in the course and scope of her employment.Plaintiff also sought penalties and attorney's fees for defendant's arbitrary and capricious failure to pay benefits when due.Defendant filed a peremptory exception alleging that more than one year had elapsed from the time of the injury to the time of the institution of suit.After trial on the merits, defendant's exception of prescription was overruled and judgment was rendered in favor of plaintiff and against defendant for weekly worker's compensation benefits, travel expenses for therapeutic treatment, and attorney's fees in the amount of $5,000.00.Defendant timely appealed.Plaintiff answered the appeal seeking an amendment of the trial court judgment for statutory penalties and an increase in attorney's fees.We affirm, but amend the trial court judgment to allow statutory penalties on all sums due and to grant an increase in attorney's fees for this appeal.

FACTS

The facts are undisputed.This action for worker's compensation benefits arises out of an accident which occurred on July 6, 1984 while plaintiff was employed as a utility worker for defendant.Plaintiff was sitting on a handrail cleaning a large metal vat held by a forklift when the vat was accidentally dropped.The lip of the vat landed on her legs two inches above the knees and resulted in extensive tissue damage to the area around both knees.The parties stipulated that the accident occurred in the course and arising out of plaintiff's employment with defendant.

Plaintiff was taken to St. Patrick's Hospital where she was examined and treated by Dr. Edward Phillips.X-rays were taken of plaintiff's knees and it was determined that she suffered massive contusions and bruises.No fractures were detected.

Plaintiff returned to work several days after the accident, but remained on light duty for two weeks.She then took one week of vacation to better facilitate her recovery.Plaintiff testified that she was able to return to her regular duties following her vacation, but that she continued to experience severe pain in both knees and a burning sensation in her left leg.She further testified that she began to notice a significant improvement after two months, which led Dr. Phillips to discharge her on October 10, 1984.

Plaintiff's condition continued to show improvement for several months, however, she continued to undergo periodic medical treatment by defendant's plant physician, Dr. Bonnie Camp.She was required to visit defendant's medical department once every two or three months concerning problems with her knees.During these visits her knees were wrapped in ace bandages and anti-inflammatory medication was administered to reduce swelling.

In November or December, 1985, plaintiff noticed that her knees were progressively bowing inward and that there was a significant increase in pain and symptomology.At trial, plaintiff admitted to always being a little knock-kneed, but the change became so drastic that she attributed it to her knee injuries.

Dr. Camp referred plaintiff to an orthopedic surgeon, Dr. David Drez, who specializes in treatment of the knee.On January 13, 1986, Dr. Drez X-rayed plaintiff's left knee, which was the most symptomatic, and found, "She had a definite knock-kneed type deformity with increasing symptoms in her knees which were secondary to an arthritic condition."Dr. Drez placed plaintiff on various anti-inflammatory medications and recommended that she lose weight.Dr. Drez has also recommended that plaintiff undergo an osteotomy of the femur to relieve the pain in her knees and help her walk more freely.

Plaintiff consulted Dr. Drez again on February 14, 1986 when the pain in her knees became so unbearable that she could no longer go to work.Dr. Drez suggested that she stay off her legs for four weeks to see if her condition would improve.This period was extended another four weeks when plaintiff failed to show any sign of improvement.When continued rest and medication failed to result in any change in plaintiff's condition, Dr. Drez advised defendant's medical director, Dr. Camp, that plaintiff was permanently disabled and recommended that she be placed on disability status beginning February 14, 1986.Accordingly, Dr. Camp and other plant managers recommended to defendant's insurer, Kemper Insurance Company(hereinafter Kemper) that plaintiff be paid weekly worker's compensation benefits.Plaintiff has remained on sick leave since February 14, 1986 and has been unable to return to her regular duties at work.Plaintiff has not worked anywhere else due to her disability nor has she been offered a job by any other company.

Between 1982 and 1984, plaintiff had been treated by an orthopedic surgeon, Dr. Edmond Campbell, for an injury to her right knee.Dr. Campbell initially treated plaintiff in 1981 after she suffered an injury to her right knee which caused the cartilage to shatter and required surgical repair.Dr. Campbell had examined plaintiff on July 29, 1982, when she began to complain of soreness in the right knee.X-rays revealed arthritis, which he treated by injections of a local anesthetic and cortisone.Dr. Campbell again treated plaintiff on June 20, 1983, when she complained of multiple knee joint pain.After a thorough examination, her condition was diagnosed by him as degenerative arthritis of the knees.

Although Dr. Phillips had initially examined and treated plaintiff on July 6, 1984 for the injuries she received in the accident, Dr. Campbell again examined plaintiff's knees on August 6, 1985 and administered another injection of cortisone.Dr. Campbell last saw plaintiff on April 11, 1986 when she consulted him to obtain a second opinion as to whether the surgery (osteotomy) suggested by Dr. Drez was necessary.He agreed with Dr. Drez's opinion that surgery was indicated, but stated that he was not sure the surgery would result in sufficient enough improvement to allow plaintiff to return to work.

On April 10, 1986, plaintiff filed a claim for compensation with the Office of Worker's Compensation.On May 29, 1986, the Office issued a certificate of rejection stating that the plaintiff's claim for indemnity had prescribed and that, in their opinion, no medical benefits were payable because the condition of plaintiff was not work-related.

Apparently relying on this recommendation, Kemper refused to pay any further weekly compensation benefits, but continued to pay all of plaintiff's medical benefits related to the accident and continued to pay expenses for plaintiff's on-going physical therapy.

On June 12, 1986, plaintiff filed a petition for worker's compensation benefits seeking compensation for total and permanent disability, payment of all medically related expenses, and penalties and attorney's fees.On September 9, 1986, defendant filed an answer and an Exception of Prescription alleging that more than one year had elapsed from the time of plaintiff's injury to the time of the institution of her suit.

On January 21, 1987, trial on the merits and on the Exception of Prescription was held.The trial court took the matter under advisement and on January 28, 1987, rendered written reasons for judgment.A written judgment was signed in favor of plaintiff, awarding her worker's compensation benefits at the rate of $245.00 per week for total and permanent disability.Additionally, the court awarded plaintiff $.20 per mile for previously incurred medical travel expenses for which Kemper had not reimbursed plaintiff, which included 171 round trips to the Y.M.C.A. for therapeutic rehabilitation.The trial court further awarded plaintiff attorney's fees in the amount of $5,000.00, after it made a finding of fact that defendant's failure to pay indemnity benefits was arbitrary and capricious, but did not award statutory penalties.

Defendant timely filed a suspensive appeal.Plaintiff answered the appeal seeking amendment of the trial court judgment for an award of penalties, under R.S. 23:1201(E), for 12% of all past due worker's compensation benefits, and an increase in attorney's fees for extra services rendered in connection with the appeal.

Defendant alleges the following assignments of error:

(1)The trial court erred in overruling the Exception of Prescription filed by defendants;

(2)The trial court erred in awarding travel expenses incurred by the plaintiff for trips to and from her home to the local YMCA to go swimming; and

(3)The trial court erred in awarding penalties and attorney's fees against the employer on the basis of its finding that its failure to pay weekly indemnity benefits was arbitrary and capricious.

PRESCRIPTION

The applicable provision of the Worker's Compensation Law is LSA-R.S. 23:1209, which reads in pertinent part as follows:

"A.In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the...