McKenzie v. City of Bossier City
Decision Date | 21 August 1991 |
Docket Number | No. 22578-CA,22578-CA |
Citation | 585 So.2d 1229 |
Parties | Randall L. McKENZIE, Plaintiff-Appellee, v. CITY OF BOSSIER CITY, Louisiana, Defendant-Appellant. |
Court | Court of Appeal of Louisiana — District of US |
Mayer, Smith & Roberts by Walter O. Hunter, Jr., Shreveport, for defendant-appellant.
Bruscato, Loomis & Street by C. Daniel Street, Monroe, for plaintiff-appellee.
Before LINDSAY, HIGHTOWER and STEWART, JJ.
The defendant, the City of Bossier City, appeals from a trial court judgment granting worker's compensation benefits to the plaintiff, Randall L. McKenzie, in addition to his disability retirement benefits. The defendant also appeals that part of the trial court judgment assessing penalties and attorney fees for its failure to pay worker's compensation benefits. For the following reasons, we affirm the trial court judgment.
The plaintiff had been employed for more than twenty years as a fireman with the Bossier City Fire Department and had achieved the rank of captain. In 1988, the plaintiff was diagnosed as having obstructive lung disease, specifically, the plaintiff was found to have asthmatic bronchitis. The plaintiff was advised by doctors not to continue working in smokey environments. Upon notifying his superiors at the fire department that he had obstructive lung disease, the plaintiff was told that he could not continue as a fire fighter. Plaintiff was advised to apply for a disability retirement.
On September 29, 1988, the plaintiff submitted a letter to the retirement board of the Bossier City Fire Department requesting a medical retirement at 75% of his current salary. The plaintiff also requested, "the said 75% of my salary to be separate from any heart and lung bill benefits." In accordance with his request, the plaintiff was granted a medical retirement effective October 26, 1988.
Thereafter, plaintiff sought to obtain worker's compensation benefits under LSA-R.S. 33:2581, commonly known as the fireman's heart-lung statute. This statute provides that any disease of the heart or lungs, which is manifested after five years of employment, is presumed, prima facie, to have developed during, and to have been caused by, the employment.
The defendant contended that the plaintiff's condition was not caused by his duties as a fire fighter, but rather was attributable to his heavy cigarette smoking for more than twenty years. The city refused to pay worker's compensation benefits and submitted the claim to the worker's compensation office which denied the plaintiff's claim. The plaintiff then filed suit in district court.
Trial on the merits was held on March 13, 1990. At trial, the defendant contended that the plaintiff failed to sufficiently show that his lung condition was related to his employment. Rather, the defendant argued that even though the medical testimony showed that working in a smoke filled environment would aggravate the plaintiff's condition, the condition was actually caused by cigarette smoking.
The trial court found in favor of the plaintiff, awarding him worker's compensation benefits and awarding penalties and attorney fees against the defendant. In written reasons for judgment, the trial court found that the plaintiff suffered from obstructive lung disease and that pursuant to advice from the fire department he obtained a medical disability retirement. The court found that the plaintiff was also entitled to worker's compensation benefits under the heart-lung statute. The court stated that under the statute, the plaintiff had established prima facie that his disease was work related and that the burden then shifted to the defendant-employer to rebut the presumption. The trial court found that the defendant had failed to rebut the presumption. Accordingly, the plaintiff was found to be temporarily totally disabled and entitled to compensation benefits of $267 per week from October 26, 1988, until he is able to return to work. The defendant was also ordered to pay reasonable medical expenses.
The court found the worker's compensation benefits were to be paid in addition to the plaintiff's medical disability retirement. The court also found that the defendant was arbitrary and capricious in failing to pay the plaintiff's claim. Therefore, the court assessed a 12% penalty and awarded the plaintiff $6,000 in attorney fees.
The defendant appealed the trial court judgment. On appeal, the defendant makes the following contentions:
The defendant argues that the medical testimony did not establish that the plaintiff's condition was caused by his employment, but was in fact attributable to his cigarette smoking.
The defendant also contends that if the plaintiff is entitled to worker's compensation benefits, the city should receive a reduction for amounts paid toward the plaintiff's medical disability retirement. The defendant further contends that the city should receive credit for medical benefits being paid on behalf of the plaintiff under the group medical insurance plan.
The defendant contends that the plaintiff is not entitled to worker's compensation benefits because he has achieved maximum medical improvement and should be subject to rehabilitation efforts and supplemental earnings.
The defendant also argues that the trial court erred in awarding penalties and attorney fees to the plaintiff. The defendant asserts that, in refusing to pay the plaintiff's worker's compensation claim, it did not act arbitrarily, capriciously, or without probable cause but that, considering the medical statements given by physicians who had examined the plaintiff, the issue of whether the plaintiff was in fact entitled to worker's compensation benefits was reasonably controverted.
The defendant contends that the trial court erred in finding that it did not meet its burden under the heart-lung statute of LSA-R.S. 33:2581, of showing that the plaintiff's condition was not caused by or resulted from the nature of the work performed. This argument is meritless.
LSA-R.S. 33:2581 provides:
Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.
This provision, although not a part of the Worker's Compensation Act embodied in LSA-R.S. 23:1021, et seq., is applicable to worker's compensation cases. Saling v. City of New Orleans, 398 So.2d 1205 (La.App. 4th Cir.1981), writ denied 401 So.2d 986 (La.1981).
In the enactment of this statute, the legislature provided that upon proof of the existence of a covered disease, the burden of proof is shifted to the employer to prove the lack of causation between the disease and the employment. Vincent v. City of New Orleans, 326 So.2d 401 (La.App. 4th Cir.1975), writ denied 329 So.2d 760 (La.1976).
In the present case, the defendant contends that it carried its burden of proving that the plaintiff's lung disease was not caused by his work as a fire fighter. The defendant argues that the medical testimony shows that inhalation of smoke on the job did not cause the plaintiff's obstructive lung disease.
In his deposition, Dr. Richard Denman Crow, the plaintiff's family physician, testified that the plaintiff consulted him in 1988 with respiratory complaints. At that time, Dr. Crow diagnosed the plaintiff as having asthmatic bronchitis with emphysema. Dr. Crow stated that both fire fighting and smoking would aggravate the plaintiff's condition.
Dr. Crow referred the plaintiff to Dr. Janice Gunnels, a specialist in pulmonary disease. The plaintiff told Dr. Gunnels that he smoked cigarettes and also that he inhaled smoke throughout the course of his fire fighting career. Dr. Gunnels tested the plaintiff and found that he had asthmatic bronchitis and that his symptoms, such as shortness of breath, could be relieved somewhat through the use of medication known as a bronchodilator. Dr. Gunnels felt that the allergic component to the plaintiff's condition was largely inherited, but that his condition was aggravated by exposure to smoke. While she found that cigarette smoking would aggravate the plaintiff's condition, she stated that the heat and exertion associated with fire fighting would also aggravate his condition.
In 1989, the plaintiff was evaluated by Dr. Randy D. Bryn, also a specialist in pulmonary disease. Dr. Bryn found that the plaintiff's condition had worsened somewhat since his prior evaluation in 1988 and that his condition was less responsive to treatment with bronchodilators. Dr. Bryn stated he could not determine whether it was smoking cigarettes or breathing smoke and fumes at fires which had the most significant impact in the plaintiff's lung function. Nor did Dr. Bryn find it unusual that plaintiff's lung condition continued to worsen after he stopped working as a fire fighter. However, Dr. Bryn stated that the plaintiff should not be exposed to any type of noxious fumes or dust which could continue to worsen or exacerbate his obstructive lung disease.
Based upon this medical evidence, we do not find that the trial court erred in finding that the defendant failed to carry its burden of proving that the plaintiff's condition was not caused by or resulted from his duties as a fire...
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