Gatte v. Coal Operators Cas. Co., 2738

• Decision Date: 27 June 1969
• Docket Number: No. 2738,2738
• Citation: 225 So.2d 256
• Parties: Mrs. Ruby GATTE, Plaintiff and Appellee, v. COAL OPERATORS CASUALTY COMPANY, Defendant and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 256

225 So.2d 256

Mrs. Ruby GATTE, Plaintiff and Appellee, v. COAL OPERATORS CASUALTY COMPANY, Defendant and Appellant.

No. 2738.

Court of Appeal of Louisiana, Third Circuit.

June 27, 1969.

Rehearing Denied Aug. 7, 1969.

Garrett, Ryland & Downs, by B. Dexter Ryland, Alexandria, for defendant-appellant.

John W. Hebert, Jennings, for plaintiff-appellee.

Before FRUGE , SAVOY and CULPEPPER, JJ.

CULPEPPER, Judge.

Plaintiff seeks workmen's compensation benefits for total and permanent disability caused by a heart attack suffered while in the employment of Anthony Pousson. Defendant is the employer's insurer. The district judge awarded weekly benefits and also assessed penalties and an attorney's fee of $2,000. Defendant appealed. Plaintiff answered the appeal, seeking an increase in the attorney's fees.

The sole issue on appeal concerns the award for penalties and attorney's fees.

The general facts show that plaintiff, 48 years of age, was working as a short-order cook at the Rocket Drive-in in Jennings, Louisiana. On the day in question, October 5, 1967, she arrived at the drive-in at about 7:45 a.m. She first drained and cleaned the two deep fat fryers and refilled them with approximately four gallons of lard. Then she prepared the onions, pickles and other vegetables to be used in sandwiches, started the hot dog and bun machine and generally prepared for the day's business. The heat from the grill and several other pieces of equipment caused the place to be warm. At about 11:00 a.m. several orders came in for hamburgers, hot dogs and french fries. Mrs. Gatte was at the grill cooking the ingredients for these orders when she suddently suffered a severe pain in her chest.

She was immediately taken to the American Legion Hospital in Jennings where she was seen by Dr. Louis Shirley, Jr. and his partner, Dr. Harlie Bearden, both general practitioners. Her condition was diagnosed as a coronary occlusion affecting a large area of the heart. She was confined to the hospital for 43 days, during which time she was kept under intensive care with a cardiac monitor, pace maker and emergency defibrillator.

Both Drs. Bearden and Shirley testified at the trial that plaintiff had preexisting coronary arteriosclerosis which, together with the work-connected activity, probably caused the coronary occlusion. These physicians said that as a result of the occlusion she has suffered myocardial infarction of a large area of the heart, which causes her to be permanently and totally disabled from returning to work similar to that which she was performing at the time of the accident. Under this testimony the trial judge correctly held there is a causal connection between plaintiff's present disability and the work-connected heart attack of October 5, 1967.

The claim for penalties and attorney's fees is made under LSA-R.S. 22:658 which reads in pertinent part as follows:

'All insurers issuing any type of contract * * * shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after Receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, When such failure is found to be arbitrary, capricious or without probable cause, shall subject the insurer to a penalty * * * with all reasonable attorney's fees for the prosecution and collection of such loss * * *.' (Emphasis supplied)

The question is whether 'satisfactory proofs of loss' were received by the defendnt insurer or the employer.¹ Ultimately we decide the record before us does not show defendant received satisfactory proofs of loss and hence is not shown to be arbitrary, capricious or without probable cause in failing to pay compensation benefits before suit was filed.

The pertinent facts show that on January 29, 1968, plaintiff's counsel wrote a letter to the employer, Mr. Anthony Pousson, stating that Mrs. Gatte had suffered 'an acute myocardial infarct' as a result of a heart attack which she experienced on October 5, 1967 while working in the kitchen at Rocket Drive-in. The letter states 'the information we have shows the heart attack was caused, precipitated or accelerated by the work Mrs. Gatte was doing at the time she suffered this attack.' Then follows a demand for workmen's compensation benefits.

Mrs. Anthony Pousson, who together with her husband owns and operates the drive-in, testified at the trial that they received this letter from plaintiff's attorney and advised the defendant insurer of its contents.

The record does not show what, if any, action was taken by the defendant insurer following plaintiff's letter of demand of January 29, 1968. However, it is fair to assume defendant requested plaintiff to furnish medical reports to substantiate her claim. For, the record does contain a copy of a second letter dated March 7, 1968 written by plaintiff's counsel addressed to the defendant, Coal Operators Casualty Company, which states in pertinent part: 'Pursuant to your request, I hand you herewith the following: (1) Medical report from (Dr.) Harlie Bearden dated February 26, 1968.' This letter then proceeds to demand the payment of workmen's compensation benefits by March 15, 1968. No benefits were paid. Suit was filed on March 18, 1968.

In its answer, defendant admitted plaintiff had the heart attack while at work but denied any causal connection between the work being performed and the 'myocardial infarction.' Defendant alleged further in its answer that it had 'no medical information whatsoever indicating that this disability or this alleged accident was caused in any way by the plaintiff's duties in connection with her employment. That the mere occurrence of a heart attack while on the job does not of itself indicate or prove a work-incurred accident compensable under the Louisiana Workmen's Compensation Act and defendant has no probable cause or reason under the evidence submitted to pay workmen's compensation benefits or medical until such time as a causal relationship has been established.

At the trial the medical report of Dr. Harlie Bearden, dated February 26, 1968, which plaintiff's letter of March 7, 1968 states was forwarded therewith to defendant, was not filed in evidence. Plaintiff contends defendant should have introduced the report in evidence and, since it did not, a...