LeBlanc v. Grand Isle Shipyard, Inc.

• Decision Date: 28 June 1996
• Docket Number: No. 95 CA 2452.,95 CA 2452.
• Citation: 676 So.2d 1157
• Parties: Rickey K. LeBLANC v. GRAND ISLE SHIPYARD, INC.
• Court: Court of Appeal of Louisiana — District of US

676 So.2d 1157

Rickey K. LeBLANC v. GRAND ISLE SHIPYARD, INC.

No. 95 CA 2452.

Court of Appeal of Louisiana, First Circuit.

June 28, 1996.

David J. Norman, III, Houma, for Plaintiff/2nd Appellant, Rickey K. LeBlanc.

Joseph A. Reilly, Jr., Houma, for Defendant/1st Appellant, Grand Isle Shipyard, Inc.

Before CARTER and PITCHER, JJ., and KLINE, J. Pro Tem.¹

CARTER, Judge.

This is an appeal from a decision of a workers' compensation hearing officer.

BACKGROUND

On January 17, 1993, plaintiff, Rickey K. LeBlanc, was injured during the course and scope of his employment while working offshore for Lafitte Welding (Lafitte). While walking on a stack of pipe, plaintiff slipped and fell, sustaining injuries to his neck and back. Plaintiff initially consulted a Dr. Arillads of West Bank Medical Center and had x-rays taken.

On February 1, 1993, plaintiff consulted Dr. David M. Jarrott, a neurosurgeon, for cervical and lumbar spine evaluation. After examining plaintiff, Dr. Jarrott diagnosed cervical and lumbar neuralgia and determined that plaintiff was disabled and in need of active treatment.

On February 6, 1993, Dr. Jarrott saw plaintiff in the emergency room for complaints of neck pain and right arm pain with numbness, as well as back and bilateral leg pain. Dr. Jarrott diagnosed cervical and lumbar disc syndrome and admitted plaintiff into the hospital for observation. On February 10, 1993, plaintiff was discharged from the hospital with a diagnosis of C5-6, C6-7 disc syndrome and L5-S1 disc syndrome, and Dr. Jarrott determined that plaintiff was disabled and in need of active treatment.

On March 29, 1993, Dr. Jarrott performed a follow-up examination of plaintiff. Plaintiff had complaints of neck pain, headaches, right arm and right hand numbness, lower back pain, and nervousness. Dr. Jarrott diagnosed C4-5 and C6-7 prolapse with anterior defect at C3-4 and C6-7, as a result of the January 17, 1993, injury, as well as L5-S1 disc syndrome which was in remission. Plaintiff was determined to be disabled and in need of active treatment. Plaintiff was to return to see Dr. Jarrott for reevaluation in four weeks.

On April 28, 1993, Dr. Jarrott again examined plaintiff. Plaintiff had complaints of neck pain, headaches, right arm numbness radiating into the hand, lower back pain, and left leg pain. Dr. Jarrott diagnosed C5-6 and C6-7 disc prolapse and L5-S1 disc syndrome. Again, Dr. Jarrott found plaintiff to be disabled and in need of active treatment.

On June 24, 1993, plaintiff settled his workers' compensation claim against Lafitte for the sum of $12,000.00 and, thereafter, did not seek medical treatment for his injuries.

FACTS

On July 21, 1993, less than one month after settling his workers' compensation claim against Lafitte, plaintiff applied for employment with Grand Isle Shipyard, Inc. (Grand Isle). Dr. William Crenshaw performed a pre-employment physical examination of plaintiff. At Dr. Crenshaw's office, plaintiff answered a medical history questionnaire, on which he indicated that he had never been awarded benefits under a workers' compensation claim and had not been treated by a physician within the previous three years, except for minor injuries or illnesses. As part of plaintiff's examination, Dr. Crenshaw ordered an MRI of the lumbosacral spine, and the MRI produced normal results. Subsequently, plaintiff was hired by Grand Isle as a roustabout.

On August 24, 1993, plaintiff was injured during the course and scope of his employment with Grand Isle when a flame arrestor fell onto his head and neck.² At the time of the accident, plaintiff was working offshore on a seven/seven hitch. As a result of the accident, plaintiff was unable to complete the hitch and was sent ashore for medical attention, which he initially received from a Dr. Johnson at Our Lady of the Sea Clinic in Galliano.

On August 31, 1993, Grand Isle referred plaintiff to Dr. Neil Maki, an orthopedic surgeon, who diagnosed a soft tissue injury of the neck and began treating plaintiff with medication and traction.

On September 20, 1993, Dr. Maki released plaintiff for light duty employment. Plaintiff returned to Grand Isle, working light duty until October 5, 1993. Grand Isle and its workers' compensation insurer, Gray Insurance Company (Gray) paid plaintiff no weekly compensation benefits during this period, but paid plaintiff's medical expenses. Beginning October 5, 1993, plaintiff was incarcerated for forty-five days.³ On December 1, 1993, plaintiff returned to Grand Isle, working regular duty. On February 1, 1994, plaintiff left Grand Isle's employ.

On August 23, 1994, plaintiff filed with the Office of Workers' Compensation a disputed claim for compensation (1008 Form) on the grounds that Grand Isle refused to pay him compensation benefits and that he suffered a continuing disability. Plaintiff alleged that his injuries resulted in lost time, which began in December, 1993. Grand Isle and Gray filed an answer, indicating that no compensation had been paid to plaintiff, that plaintiff was not disabled, and that plaintiff's alleged injuries were the result of injuries preexisting the August 24, 1993, accident or occurring subsequent thereto.

On July 21, 1995, the matter was tried before a workers' compensation hearing officer. The parties stipulated that plaintiff was injured during the course and scope of his employment on August 24, 1993, that plaintiff's average weekly wage was $444.60, and that plaintiff's compensation rate was $299.10. The parties also stipulated to the introduction of certain documentary evidence.

On August 31, 1995, the hearing officer rendered a decision, finding that (1) plaintiff was injured during the course and scope of his employment with Grand Isle on August 24, 1993; (2) plaintiff was entitled to temporary total disability benefits from August 24, 1993, through September 20, 1993; (3) plaintiff was entitled to supplemental earnings benefits from September 21, 1993, through December 1, 1993, to be computed based on the average weekly wage of $444.60; (4) plaintiff failed to establish any disability after December 1, 1993; (5) plaintiff was entitled to the payment of all medical bills, medication expenses, and transportation expenses from August 24, 1993, through December 1, 1993; (6) plaintiff failed to establish any connexity between the August 24, 1993, injury and any disability after December 1, 1993; (7) Grand Isle was to be credited for any benefits paid to or on behalf of plaintiff from August 24, 1993, through October 5, 1993; (8) plaintiff misrepresented certain facts after December 1, 1993, for the purpose of obtaining workers' compensation benefits; and (9) plaintiff must forfeit his right to any benefits after December 1, 1993.

Grand Isle and Gray appealed from the decision of the hearing officer, alleging the following specifications of error:

(1) The hearing officer erred in finding plaintiff credible/believable up until December 1, 1993, but not credible thereafter.

(2) The hearing officer properly held that plaintiff forfeited his rights to compensation benefits through misrepresentations under LSA-R.S. 23:1208, but the hearing officer erred when it applied the forfeiture selectively to only a portion of the benefits claimed. All benefits should be forfeited.

(3) The hearing officer erred by excluding evidence of plaintiff's felony conviction for impeachment purposes under Louisiana Code of Evidence, Article 609 A(1).

Plaintiff appealed from the decision of the hearing officer, alleging the following specifications of error:

(1) The hearing officer erred in finding that plaintiff failed to prove a disability after December 1, 1993.

(2) The hearing officer erred in finding that any misrepresentations made by plaintiff were effective before March 29, 1995, when plaintiff began working again at Casino Magic; and, therefore, the hearing officer should have awarded benefits up to and including that date.

DISABILITY

In order to recover workers' compensation benefits, a claimant must show that he received personal injury by accident arising out of and in the course and scope of his employment and that said injury necessitated medical treatment and/or rendered the employee disabled. Polk v. Babineaux's Plumbing, Inc., 628 So.2d 71, 74 (La.App. 3rd Cir.1993); Alfred v. Mid-South Machine, Inc., 594 So.2d 937, 939 (La.App. 3rd Cir. 1992).

Pursuant to LSA-R.S. 23:1221(1)(c), a claimant has the burden of proving a temporary total disability by clear and convincing evidence.⁴ Penn v. Wal-Mart Stores, Inc., 93-1262 p. 3 (La.App. 3rd Cir. 6/15/94); 638 So.2d 1123, 1126, writ denied, 94-1835 (La. 10/28/94); 644 So.2d 651; Polk v. Babineaux's Plumbing, Inc., 628 So.2d at 74. In the absence of clear and convincing evidence that the employee is physically unable to engage in any employment, the claimant's demand for temporary total compensation benefits must fail. Tanner v. International Maintenance Corporation, 602 So.2d 1133, 1137 (La.App. 1st Cir.1992).

In claiming a permanent total disability, the plaintiff must prove by clear and convincing evidence his inability to engage in any gainful employment. LSA-R.S. 23:1221(2)(c); Rachal v. Crown Store Equipment Co., 93-1602 p. 2 (La.App. 3rd Cir. 6/1/94); 640 So.2d 730, 732; Schmitt v. City of New Orleans, 632 So.2d 367, 373-74 (La. App. 4th Cir.1993); Ross v. St. Paul Fire & Marine Insurance Company, 556 So.2d 891, 895 (La.App. 2nd Cir.1990); Henderson v. Jackson Iron and Metal Company, Inc., 535 So.2d 983, 984 (La.App. 2nd Cir.), writ denied, 536 So.2d 1202 (La.1988); Keith v. Louisiana State Office of Risk Management, 516 So.2d 440, 443 (La.App. 1st Cir.1987).

The issue of disability within the framework of the workers' compensation law is a legal rather than a purely medical determination. Pollock v. Louisiana Insurance Guaranty Association, 587 So.2d 823, 825 (La.App. 3rd Cir.1991). The issue of disability is determined with reference...