Jolibois v. Hartford Acc. & Ind. Co.

• Decision Date: 09 April 1986
• Docket Number: No. 85-240,85-240
• Citation: 486 So.2d 283
• Parties: Euna JOLIBOIS, Plaintiff-Appellee, v. HARTFORD ACCIDENT & IND. CO. et al., Defendants-Appellants. 486 So.2d 283
• Court: Court of Appeal of Louisiana — District of US

Page 283

486 So.2d 283

Euna JOLIBOIS, Plaintiff-Appellee, v. HARTFORD ACCIDENT & IND. CO. et al., Defendants-Appellants.

No. 85-240.

486 So.2d 283

Court of Appeal of Louisiana Third Circuit.

April 9, 1986.

Jeansonne, Briney, Charles J. Foret, Lafayette, for defendants-appellants.

Brinkhaus, Dauzat by Jimmy L. Dauzat, Opelousas, for plaintiff-appellee.

Before LABORDE and YELVERTON, JJ., and FONTENOT ^*, J. Pro Tem.

LABORDE, Judge.

Plaintiff, Euna Jolibois, filed suit against Concrete & Steel Erectors, Inc. and its workers' compensation insurer, Hartford Accident and Indemnity Company, seeking to recover workers' compensation benefits, medical expenses, penalties, and attorney fees. The claim is based on the disability of plaintiff resulting from a myocardial infarction.

The trial court rendered judgment in favor of plaintiff, finding him totally and indefinitely disabled. The trial court awarded plaintiff workers' compensation benefits at the rate of two hundred four and no/100 ($204.00) dollars per week, subject to credit for Social Security benefits. The trial court awarded accrued medical expenses totaling thirty-six thousand, six hundred ninety-one and 35/100 ($36,691.35) dollars. Further, the trial court awarded plaintiff the statutory penalty of twelve (12%) percent on all sums due plus attorney fees of six thousand ($6,000.00) dollars. Defendants appeal, setting forth five assignments of error. Plaintiff answers the appeal and prays for an increase in attorney fees to eight thousand, five hundred ($8,500.00) dollars.

ASSIGNMENTS OF ERROR

1) The trial court erred in finding that the plaintiff's heart attack was caused by or in any way was connected with plaintiff's employment with defendant.

2) The trial court erred in finding that the defendants' failure to pay compensation benefits was arbitrary and capricious.

3) The trial court erred in finding the plaintiff to be totally disabled.

4) The trial court erred in awarding plaintiff $36,691.35 for medical expenses incurred as a result of this accident.

5) The trial court erred in not giving defendants a credit for the period of time where plaintiff actually returned to work with defendant.

FACTS

Euna Jolibois was forty-nine years old at the time of the trial and has worked as an ironworker for most of his adult life. He began working for defendant, Concrete and Steel Erectors, Inc., in 1982. In May of 1983, plaintiff was employed by defendant as an ironworker/foreman. For a period of time, plaintiff was required to work at two job sites, one during the weekdays and one on the weekend. He had experienced an episode of chest pain at work in January of 1983, but the pain was minor and short-lived. He had not encountered any other health problems until May of 1983. On Sunday, May 22, 1983, while on duty at one of the job sites, plaintiff began to suffer chest pain after he had done some lifting. Thinking the discomfort was due to a muscle spasm, plaintiff continued to work and did not think much about the incident until the next day.

Again on Monday, the pain returned, this time more severe. This progression continued each day that week (except Thursday) until Friday, when the pain was the most prolonged and intense. After work at 3:30 p.m. on the twenty-seventh, plaintiff went home, rested awhile, and got dressed for a class reunion. The reunion was a sedate affair consisting of small talk and a supper. Plaintiff commented that the chest pain or angina never completely disappeared, but that it "got considerably worse later on in the night...."

At approximately 11:30, plaintiff and his wife returned home and prepared for bed when the angina flared. Good sense overcame plaintiff, who agreed to see a doctor and was taken to Opelousas General Hospital. That night, plaintiff was diagnosed by Dr. Dudley Bienvenue as being in the state of impending myocardial infarction. The next day, Dr. Bienvenue referred plaintiff to Dr. Redding of Lafayette General Hospital, who ultimately successfully treated plaintiff by performing a coronary bypass surgery on him.

After the standard one week hospitalization following open heart surgery, plaintiff was released and has continued to recover. Plaintiff returned to work with defendant on September 11, 1983, and resigned November 13, 1983, complaining of physical exhaustion and chest pain. Plaintiff has not attempted gainful employment since then.

Appellant's first assignment of error relates to a factual determination made by the trial court: whether the trial court erred in finding that plaintiff's employment with defendant caused or precipitated plaintiff's myocardial infarction.

In order to recover benefits under the Louisiana Workers' Compensation Law, the employee must establish that he received a "personal injury by accident arising out of and in the course of his employment." LSA-R.S. 23:1031. ¹ Heart attacks have been held to be accidents within the purview of our workers' compensation laws. Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982); Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975); Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (La.1969). "An accident that happens while an employee is actively engaged in the performance of his duties during working hours will be regarded as having occurred in the course of his employment...." 1 W. Malone & H. Johnson, Workers' Compensation sec. 161 in 13 Louisiana Civil Law Treatise 303 (2d Ed.1980); Chapman v. Belden Corp. 428 So.2d 396 (La.1983); King v. Wilson Brothers Drilling Co., Inc., 441 So.2d 68 (La.App.3d Cir.1983).

The plaintiff carries the burden of proving by a preponderance of the evidence that there is a connection between the heart attack and the employment activity. Hammond v. Fidelity & Casualty Co. of New York, 419 So.2d 829 (La.1982); Guidry v. Sline Industrial Painters, Inc., supra. After reviewing historic and current jurisprudence of the Supreme Court on the subject of heart attack in worker compensation cases, the Guidry court concluded:

"In summary, the jurisprudence of this Court has been fairly liberal in linking ensuing disability to admitted work accident (for example, there is the Bertrand presumption of causal connection between accident and disability), and insofar as linking work accident to work stress and exertion without the necessity for a traumatic incident. But there has been in this Court's jurisprudence no determination that there exists a presumption that a heart accident sustained at work is caused by the employment.... [T]he cases in this Court have always required that there be some causal relation between employment and accident. This conclusion that a heart accident must be causally related in part, however slight, to the employment, is no new or novel approach to applying the compensation law."

Id. at 632 (footnotes omitted).

The difficulty in determining a causal relation in any case can be difficult; this difficulty is exacerbated when the exact cause of a heart attack must be determined. The variables are great and the medical community is not completely unified in weighing the impact of various factors, e.g., the effect of mental stress. Another aggravating factor in locating the nebulous cause of heart failure is the ubiquitous presence of some degree of pre-existing heart disease or vascular infirmity found in heart attack victims. ² Nonetheless, we are guided by our Supreme Court which has set out the rule of law: "[W]ork related stress or exertion preceding a heart attack bears a causal relationship to that heart attack, at least in part, even where there is a pre-existing heart disease." Id. at 632, 633.

The burden of showing, by a preponderance of the evidence, that the work effort, stress, or strain in reasonable probability contributed in some degree to the heart attack is still borne by the plaintiff. For the heart accident to arise out of or be connected with the employment, the plaintiff must show that the exertion, stress, or strain, acting upon the pre-existing disease, must be of a degree greater than that generated in everyday nonemployment life (e.g., as compared to the more or less sedentary life of the average non-worker). Id. at 633. Our duty, as an appellate court, is not to make the determination, but to decide whether the trial court was clearly wrong in finding a causal connection between Mr. Jolibois's work effort and his subsequent myocardial infarction. We find ample proof in the record to support the trial court's findings.

The bulk of the lay testimony depicts plaintiff's physical and mental stresses experienced on his jobs. Mr. Jolibois testified that during May of 1983, he was required to work seven (7) days a week at two different job sites. As foreman, he ran the job on a day-to-day basis. Apparently, plaintiff's boss at Steel Erectors and the general contractor disagreed as to the viability of specifications in the plans for the building. The building could not be brought into plumb as specified in the plans. Plaintiff felt abuse from both sides, unable to satisfy either of the contractors. Plaintiff testified that he lived under constant pressure and anxiety, thinking of possible solutions to correct the job.

Plaintiff also related how he was physically active on the job site the week of the accident, doing whatever needed to be done, including: lifting and moving a four hundred (400) to six hundred (600) pound section of stairs some two hundred (200) feet in the mud with two other men and; carrying a thirty (30) to fifty (50) pound torch over two hundred feet in ankle deep mud. After the latter incident, plaintiff collapsed with intense chest pain. Thinking the pain was associated with muscle cramps or spasms, after one-half hour rest, plaintiff resumed work, but continued to feel short-of-breath and tight-chested. This condition, plaintiff stated, grew progressively worse throughout the week upon physical exertion.

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