Marks v. 84 Lumber Co.

• Decision Date: 27 September 2006
• Docket Number: No. 06-358.,06-358.
• Citation: 939 So.2d 723
• Parties: Randall MARKS v. 84 LUMBER COMPANY.
• Court: Court of Appeal of Louisiana — District of US

939 So.2d 723

Randall MARKS v. 84 LUMBER COMPANY.

No. 06-358.

Court of Appeal of Louisiana, Third Circuit.

September 27, 2006.

Michael E. Holoway, Holoway Law, L.L.C., Mandeville, LA, for Plaintiff/Appellant, Randall Marks.

Hugh B. Exnicios, Exnicios Legal Center, Folsom, LA, for Plaintiff/Appellant, Randall Marks.

Lawrence B. Frieman, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Metairie, LA, for Defendant/Appellee, 84 Lumber Company.

Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.

COOKS, Judge.

In this case, the claimant, Randall Marks, alleged he suffered a brain injury in 1992 during the course and scope of his employment. The case was first tried in 1999, and the Office of Workers' Compensation (OWC) rendered a judgment which was appealed to this court in Marks v. 84 Lumber Company, 00-322 (La.App. 3 Cir. 10/11/00), 771 So.2d 751. We set forth the following relevant facts and procedural history:

Randall Marks, then 31, suffered a mild brain injury on April 16, 1992, while he was employed as manager of the 84 Lumber Company store in Lafayette. He was attempting to load some lumber on a forklift. It is uncertain how the accident happened because Marks was loading the lumber by himself and does not remember any details. It is believed that he got hit on the head with a board. Marks' fellow employee, who was working the front of the store at the time, came to look for him and found him in a confused state and vomiting. His parents were called, and they took him to the hospital.

According to the hospital records, Marks was alert and oriented when he got there, but he had a severe headache and blurred vision. A red area was present on his left shoulder extending to the upper arm. There was also an area on his right groin that required a band aid. No discolorations or abrasions were noted on his head. Marks was admitted for observation overnight and was discharged the next day. Marks continued with symptoms of headaches, memory loss, and easy fatigability, in addition to neck, back, and leg pain.

Several months later, around August 1992, Marks began experiencing fainting spells, which in medical terms are known as "syncopal episodes." These spells increased in frequency until he was experiencing 15 to 18 of them a day by the time of the trial of this case in 1999. Marks fell on his head so much that sometimes he required stitches, and it got to the point that his doctors suggested he wear a helmet to protect his head. The majority of the testimony during the eight-day trial focused on the cause of these syncopal episodes.

When the accident happened, Marks had been married for over ten years, he and his wife had two children and he had been employed for eight years, as manager for the last three, at his employer's store. After the accident, he has not worked at all. He has lost his wife, custody of his children, his home, and, according to most doctors testifying, his self-esteem. The employer has paid benefits and all medical expenses (except for an occipital neurectomy in 1996).

In detailed and well-analyzed reasons for judgment, the workers' compensation judge found that "Marks had consciously and deliberately produced the large majority of his symptoms, specifically including the syncopal spells." However, the trial judge believed that Marks had proved by clear and convincing evidence that he was suffering from a depression caused by the accident at work, which rendered him temporarily, totally disabled, and the court awarded benefits. The court found that he was not feigning the depression. The disability finding is appealed by 84 Lumber and its workers' compensation insurer, Kemper Insurance Company. 84 Lumber and Kemper additionally appeal a ruling by the workers' compensation judge that neither Marks nor his parents committed fraud to obtain benefits in violation of Louisiana Revised Statute 23:1208.

Id. at 752.

This court affirmed in full the findings of the OWC, finding the claimant was temporarily, totally disabled due to his depression, which was caused by the accident. We found the claimant was unable to prove by clear and convincing evidence that the syncopal episodes were caused by the accident. Claimant continued receiving temporary, total disability (TTD) benefits.

In 2001, the employer and workers' compensation insurer requested additional testing of the claimant to support its assertion that he was no longer disabled. The WCJ ordered an independent medical examination of the claimant by Dr. Ron Taravella, a Board Certified Psychiatrist. After the examination, Dr. Taravella rendered a report diagnosing claimant as suffering from "severe, totally disabling, completely work related post traumatic stress disorder (PTSD), complicated by depression." Based on Dr. Taravella's findings, the claimant petitioned the court to modify its original judgment to find claimant totally and permanently disabled as a result of the work-related PTSD, in addition to the depression which was previously found compensable. Claimant also requested penalties and attorney fees for the employer's failure to pay medical expenses.

After a hearing, the WCJ determined that Dr. Taravella's diagnosis of PTSD was not supported by the evidence or by any other mental health professional associated with the case. The WCJ concluded "[a]t best, Marks is at supplemental earnings benefits status." The WCJ did render in claimant's favor all reasonable and necessary medical expenses relating to the depression which was caused by his work injury. Claimant's request for penalties and attorney fees was dismissed without prejudice to claimant's right to re-urge the issues.

Claimant has appealed the judgment, contending the WCJ erred in failing to find him totally and permanently disabled, and in reclassifying him from TTD benefits status to SEB status. The employer answered the appeal, and argues it met its burden of proving that claimant no longer suffers from work-related depression or, in the alternative, proved any depression claimant is suffering from was not related to the work accident of April 16, 1992. It therefore requests this court reverse the portion of the judgment awarding reasonable and necessary medical expenses relating to any work-related depression.

ANALYSIS

An appellate court may not set aside the factual findings of a workers' compensation judge in the absence of manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). "[W]here there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Id. at 844. However, a reviewing court may reverse a fact finder's determinations if such factual findings are not reasonably supported by the record and are clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).

"An employee in a worker's compensation action has the burden of establishing a causal link between the work-related accident and the subsequent disabling condition." Miller v. Roger Miller Sand, Inc., 94-1151, p. 6 (La.11/30/94), 646 So.2d 330, 334. An employee's disability is presumed to have resulted from the accident if before the accident, the injured employee was in good health, but commencing with the accident, symptoms of the disabling condition appeared and continuously manifested themselves afterwards. Walton v. Normandy Village Homes Ass'n, Inc., 475 So.2d 320 (La. 1985). However, the presumption requires either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection. Id.

The WCJ acknowledged claimant has serious mental problems, and that he has "made little progress since the last trial." Claimant has attempted suicide on several occasions, including jumping from a parking garage which fractured his pelvis and femur. Claimant has also taken to wearing a football helmet at all times, to protect himself from the frequent head injuries he suffered due to his fainting episodes. Defendants submitted a surveillance video that showed claimant helping load bags, while wearing a football helmet, into his mother's car in a store parking lot.¹

The WCJ set forth her conclusions in extensive written reasons, which stated as follows:

The WCJ finds that Marks is currently at supplemental earnings benefits disability status. This finding is based upon the testimony of Dr. Dawes and Dr. Wade. Dr. Taravella's diagnosis of Post Traumatic Stress Syndrome was not supported by the evidence or by any other mental health professional associated with the case from its inception, so his testimony will be accorded no weight.

Dr. Dawes testified in his deposition that Marks suffers from major depression but his diagnosis is actually Mental Disorder Not Otherwise Specified because of the patient's cognitive decline, severe anxiety and some degree of psychosis. He is treating the patient for continued depression, anxiety and psychosis, all of which he relates to the original work incident. His opinion is that Marks is totally disabled and will not return to work. He testified that Marks cannot work because his cognitive defects make it difficult for him to learn and a job would increase the frequency of his syncopal spells. However, if one were to put aside the cognitive deficits, syncope and headaches, Dr. Dawes believes Marks is still disabled from the depression alone. The cognitive deficits, syncope and headaches play a big role in the depression, and without them, he would be able to function at some degree and one day do some retraining and become more independent.

Dr....