Marti v. City of New Orleans

• Decision Date: 10 April 2013
• Docket Number: No. 2012–CA–1514.,2012–CA–1514.
• Citation: 115 So.3d 541
• Parties: Russell MARTI v. CITY OF NEW ORLEANS.
• Court: Court of Appeal of Louisiana — District of US

115 So.3d 541

Russell MARTI

v.CITY OF NEW ORLEANS.

No. 2012–CA–1514.

Court of Appeal of Louisiana, Fourth Circuit.

April 10, 2013.

Margaret Hammond–Jackson, Slidell, LA, for Plaintiff/Appellant.

Wayne J. Fontana, Christopher M. McNabb, Fontana & Seelman, L.L.P., New Orleans, LA, for Defendant/Appellant.

(Court composed of Chief Judge JAMES F. McKAY, III, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).

ROSEMARY LEDET, Judge.

[4 Cir. 1]This is a workers' compensation case. The principal issue presented on appeal is whether the Office of Workers' Compensation (“OWC”) erred in finding the employee met his burden of proving an unwitnessed, work-related accident that caused an aggravation of a preexisting left knee injury. A secondary issue is whether the OWC erred in rejecting the employee's claim that the compensable knee injury caused a subsequent, more disability shoulder injury. From the OWC's judgment awarding $6,474.00 in temporary total disability benefits (“TTD”) and an unspecified sum of medical expenses for the knee injury only, both the employee, Russell Marti, and the employer, the City of New Orleans, appeal. For the reasons that follow, we affirm in part, reverse in part as to the unspecific sum of medical expenses, and remand for the determination and the award of a specific sum of medical expenses.

FACTUAL AND PROCEDURAL BACKGROUND

From August 2008 to June 2010, Mr. Marti was employed by the City in the Division of Property Management as a Building Maintenance Manager (Engineering). He was the chief engineer over all the City's approximately three hundred buildings, including its four majority buildings—City Hall, Civil District [4 Cir. 2]Court, Municipal Traffic Court, and Criminal District Court. His job duties entailed operating and maintaining the City's buildings. His job duties included not only supervising, but also performing the physical tasks of routine repair work. His job duties thus required frequent standing, walking, sitting, balancing, stooping, kneeling, crouching, crawling, reaching, working overhead, and climbing.

On the day of the alleged accident (which was in late July or early August 2009),¹ Mr. Marti's supervisor, Pamela Smith (the Director of Property Management), dispatched him to fix a roof-top air conditioner at the New Orleans Police Department (“NOPD”) Evidence Building. To do so, Mr. Marti had to climb a non-standard ladder—which was about fourteen inches wide—and enter a narrow hatch—which was about two feet squared—that opened up to the roof. He climbed the ladder, entered the hatch, and checked the air conditioner on the roof without a problem. When he was coming down the ladder, however, he claims that he reinjured his left knee. According to Mr. Marti, he had to twist his body into an awkward position to fit through the hatch and to reach the rungs of the ladder. In so doing, he claims that his left knee popped or snapped. Mr. Marti acknowledges that he had prior problems with his left knee, including a surgery in the 1990s on that knee and preexisting severe arthritis in that knee. Mr. Marti, however, claims that despite having preexisting arthritis in his left knee, he was able to perform his job duties for twenty years before the ladder incident without any problems.

[4 Cir. 3]On July 20, 2010, Mr. Marti commenced this case by filing a disputed claim for compensation (Form 1008) against the City. In his petition, he alleged that the date of the accident was between July 26 and August 10, 2009; the place of the accident was the NOPD Evidence Building; and the details of the accident were as follows:

I re-injured my left knee going through rooftop hatch door. Diagnosed meniscus tear and loose body.... To exit roof top onto makeshift ladder and due to akward [sic] position and small size of hatch and ladder conditions, my left knee snapped as I exited the roof top....

Mr. Marti alleged that he verbally reported this incident to his supervisor. He also alleged that “[a]s a result of the above left knee re-injury, my left knee gave way and I fell and tore my right shoulder rotator cuff on 3/[10]” and that he was medically unable to return to work. He sought to recover indemnity benefits, medical expenses, and reimbursement of insurance premiums paid by him (COBRA payments). The City answered the petition averring that Mr. Marti did not sustain an accident or injury within the meaning of the Louisiana Workers' Compensation Act (“LWCA”).

At the September 8, 2011 trial of the case, the parties stipulated to the following:

• Between July 10, 2009, and August 31, 2009, Russell Marti was an employee of the City of New Orleans. • At the time of the alleged accident, Mr. Marti was a salaried employee—Mr. Mr. Marti testified that his yearly salary was $65,500—and was scheduled to work forty hours a week; his workers' compensation rate was the maximum rate of $546.00 weekly; and the City was self-insured.

• The City neither paid any indemnity benefits nor paid any of the expenses for medical treatment to (or on behalf of) Mr. Marti as a result of the alleged accident.

[4 Cir. 4]Four witnesses testified at trial: Mr. Marti; his wife, Sandra Marti; his co-worker, Alan Burkhardt; and his supervisor, Pamela Smith. The deposition testimony of Mr. Marti's two treating physicians for his knee injury, Dr. Bruce Samuels and Dr. Frederick Keppel, was introduced in lieu of live testimony. To provide a framework for analyzing the issues presented on appeal, we briefly summarize the six witnesses' testimony.

RUSSELL MARTI

Mr. Marti testified that in the end of July or beginning of August 2009 he was injured while performing an air conditioning maintenance (repair) job on the roof of the NOPD Evidence Building. Although he was a manager, he explained that he was sent to perform such manual repair work because the City was understaffed. He further explained that the accident occurred when he was in an awkward, twisted position attempting to maneuver off the roof through the small, square hatch and reaching for the rung on the makeshift (non-standard) ladder. Given his size—six feet tall and obese—he had to turn sideways on an angle to fit through the hatch. As he was reaching with his leg for the rung of the ladder and put all his weight on his left leg, he felt something pop or snap in his left leg, which caused him to have severe pain. He admitted that he did not fall off the ladder.

Mr. Marti testified that he related the unwitnessed accident to others in the following order: first, his co-worker, Alan Burkhardt; second, his supervisor, Ms. Smith; third, his wife, Sandra Marti; fourth, his orthopedic surgeon, Dr. Frederick Keppel; and fifth, his attorney.

Following the accident, Mr. Marti left the NOPD Evidence Building and went out to lunch with a co-worker, Mr. Burkhardt. At lunch, Mr. Marti was [4 Cir. 5]limping. Mr. Burkhardt asked him why he was limping. Mr. Marti replied that he was coming down the ladder at the NOPD Evidence Building and twisted his left knee.

Later that same day, Mr. Marti told his supervisor, Ms. Smith, about the accident.² He testified that the reason he told Ms. Smith about the accident “to alert her that that's why [he] ... was out sick” the following day, which was a Friday. When he went home from work that day, Mr. Marti told his wife about the incident. He told her that he went down a ladder and that he thought he did something to his knee because it was painful.

The next person Mr. Marti indicated in his testimony that he told about the accident was his orthopedic surgeon, Dr. Keppel. According to Mr. Marti, he told Dr. Keppel at his first office visit, which was on October 9, 2009, that he was coming off a roof when he hurt his knee and that he did not know if it was a work-related injury. Mr. Marti further testified that at a follow-up visit (apparently the March 25, 2011 visit) he told Dr. Keppel that “this may be becoming a workman' comp case because he had filed [a disputed claim] for it.”

The last person that Mr. Marti indicated he told about the accident was the attorney he consulted in July 2010 regarding filing a civil service claim against the City after his employment was terminated in June 2010. When he related the ladder accident to his attorney, she informed him that he had a potential workers' compensation claim against the City. Mr. Marti testified that until this time he was unaware if he had a workers' compensation claim. He explained that he was [4 Cir. 6]unaware if he had a claim since he only made a verbal report of the accident to the City and apparently no written report was prepared.

Mr. Marti acknowledged that until he filed this workers' compensation claim against the City in July 2010, the only notice he gave the City of the accident was the verbal report he made to Ms. Smith on the day it occurred. Mr. Marti testified that when he told Ms. Smith about the accident, she never mentioned anything about completing a written report. Rather, he recalled that Ms. Smith's responded by threatening to discipline him because he had not reported the accident immediately. Mr. Marti testified that he never followed up with either Ms. Smith or anyone with the City because “all the time, I thought that my leg would be repaired and I'd be going back to work. That's what I would have thought. I didn't really think about anything else, just trying to get back to work.”

Mr. Marti testified that the accident occurred on a Thursday and that he took the next day—a Friday—off as a sick day. He returned to work on the following Monday. Although Mr. Marti continued to work for a while (until February 2010) after the accident, he testified that he told his supervisor, Ms. Smith, that because his leg was hurt he would be taking another engineer with him because he was having problems with climbing, squatting, and similar types of activities. He explained that the other engineer “would be with him, and [the other engineer] ......