Peveto v. WHC Contractors

• Decision Date: 14 January 1994
• Citation: 630 So.2d 689
• Parties: 93-1402 La
• Court: Louisiana Supreme Court

Page 689

630 So.2d 689

93-1402 La. 1/14/94

David PEVETO v. WHC CONTRACTORS, et al.

No. 93-C-1402.

Supreme Court of Louisiana.

Jan. 14, 1994.

William R. Mustian, III, Stanga & Mustian, Metairie, for applicant.

Robert J. Young, III, Young & Richaud, New Orleans, for respondent.

[93-1402 La. 1] MARCUS, Justice. ^*

David Peveto, an employee of WHC Contractors, suffered from neurological disorders, specifically, spasmodic torticollis, which caused an involuntary turning of the head and neck, and dystonia in the right foot. His condition remained stable prior to January 26, 1990. On that date, Peveto was struck on the head by a metal pipe which fell as he painted another pipe. As a result of this work injury, he suffered from severe headaches and an aggravation of the spasmodic torticollis and the dystonia in his foot, including a tremor which had not been present previously.

After having been denied disability benefits and medical expenses by his employer's insurer, Insurance Company of North America, Peveto filed a claim with the Office of Workers' Compensation Administration seeking compensation benefits, as well as penalties and attorney fees. The hearing officer awarded plaintiff temporary total disability payments from January 26, 1990 until September 1, 1990; reimbursement of reasonable and necessary medical expenses related to the accident and incurred on or before May 1, 1991; and penalties and attorney fees. The court of appeal affirmed. ¹ Plaintiff applied to this court alleging that the courts below erred in finding no causal link between the work [93-1402 La. 2] injury and his continuing disability and in denying his claim for supplemental earnings benefits. We granted certiorari to review the correctness of the judgment of the court of appeal. ²

The issues presented for our determination are whether the accident caused the aggravation of plaintiff's pre-existing neurological condition beyond September 1, 1990 and, if so, whether plaintiff is entitled to supplemental earnings benefits.

Causation

An employee in a worker's compensation action has the burden of establishing a causal link between the accident and the subsequent disabling condition. Walton v. Normandy Village Homes Ass'n, Inc., 475 So.2d 320, 324 (La.1985). Where, as here, the employee suffered from a pre-existing medical condition, he may still prevail if he proves that the accident "aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed." Id. In Walton, this court recognized the existence of a presumption to aid plaintiffs in cases involving a pre-existing condition. We stated:

[W]hen an employee proves that before the accident he had not manifested disabling symptoms, but that commencing with the accident the disabling symptoms appeared and manifested themselves thereafter, and that there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the activation of the disabling condition, the employee's work injury is presumed to have aggravated, accelerated or combined with his preexisting disease or infirmity to produce his disability.

Id. at 324-25 (citing Hammond v. Fidelity & Casualty Co. of New York, 419 So.2d 829, 831-32 (La.1982); Haughton v. Fireman's Fund American Ins. Co., 355 So.2d 927, 929 (La.1978)). Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work [93-1402 La. 3] injury did not accelerate, aggravate or combine with the pre-existing disease or infirmity to produce his disability. Id. at 325. Furthermore, medical testimony, albeit significant, is not conclusive as to the issue of causation, which is generally the ultimate fact to be decided by the court after weighing all the evidence. Haughton, 355 So.2d at 928. Bearing in mind the tenet that the worker's compensation laws are to be liberally construed, we address the facts of the matter before us.

Dr. William A. Martin, a specialist in neurology, testified by deposition that he began treating Peveto in May 1986 for torticollis, which is an involuntary turning of the head toward the left and backward, and also for an abnormal turning of the right foot. The conditions appeared suddenly in 1985 and did not result from any trauma or medication. Dr. Martin learned that plaintiff had been delivered with forceps and had suffered an episode of glandular fever when he was three which lasted ten days. Shortly after the fever, plaintiff developed a speech impediment and gate ataxia which persisted through adulthood. In addition, he was a slow learner and eventually quit school in the tenth grade. Dr. Martin was unable to make a diagnosis at that time, but began treating the dystonic symptoms with medication. The drug therapy successfully stabilized plaintiff's condition. Between 1986 and 1990, plaintiff saw Dr. Martin approximately every six months, at which time his prescription would be refilled. Dr. Martin saw no progression in plaintiff's condition during this time. Peveto continued to work construction jobs without any work restrictions, played basketball and generally felt good.

After the accident in January of 1990, Dr. Martin diagnosed plaintiff with a post-traumatic concussion and posterior cervical pain syndrome, which aggravated plaintiff's pre-existing condition and produced a tremor which had not existed previously. Peveto was treated with medication and by September of 1990, he was no longer experiencing headaches. The dystonic symptoms had also stabilized, although they were more pronounced than they had been before the accident. Dr. Martin also determined that plaintiff was disabled [93-1402 La. 4] and could not perform the construction work in which he had previously been employed. He has restricted plaintiff from working jobs where good dexterity, coordination, and motor control are required. Although he feels plaintiff has the strength to perform certain manual labor, his lack of motor control prohibits him from undertaking such employment. Further, Dr. Martin feels that if plaintiff were to attempt such employment, he would be at an increased risk of further injuring himself because of his coordination problems. Dr. Martin testified that plaintiff cannot perform work which demands fine visual inspection because of the turning of his head. In addition, plaintiff's speech impediment and lack of formal education also limit his employability.

Dr. Martin could not say if the accident caused the aggravation of the dystonic symptoms, or if plaintiff's present condition was the result of the natural progression of the disease. However, he did state that the patient's history indicated that the condition may have resulted from a high fever or a difficult birth, and that if either of these was the origin of the illness, it might not be progressive at all. ³

Peveto testified that after he began taking medication in 1986, his condition stabilized and he was able to lead a normal life with no restrictions. He continued to work for various companies doing primarily blasting and painting work. He enjoyed hunting, fishing and playing basketball. Mrs. Peveto corroborated this testimony, saying that her husband did well with the medication and did not have any problems performing routine activities. After the accident, Peveto noticed an exacerbation of the dystonic symptoms and a tremor. His right foot tends to roll to the outside, which causes swelling and pain. He has problems turning his head and he finds that his body "shakes" when he tries to lay down. He is also experiencing pain in his neck. Both Peveto and his wife testified that he is no longer able to play [93-1402 La. 5] basketball and that ordinary activities, such as mowing the lawn, take longer to complete.

Peveto has established that, prior to the accident, his condition had remained stable for approximately four years and he was able to work and enjoy a normal life. Immediately following the accident, the disabling symptoms manifested themselves and continue to prohibit him from working at his prior job and enjoying the activities he had performed previously. Although Dr. Martin could not determine whether the accident caused Peveto's present disability or whether his condition was the result of the natural progression of the illness, he did note that Peveto's episode of fever as a child was "more than likely" the etiology of the condition and thus it might not be progressive at all. Accordingly, we find that the above medical testimony and strong circumstantial evidence were sufficient to establish a "reasonable possibility" of a causal connection between the accident and the activation of plaintiff's disabling condition, thus creating a presumption of causation. Because the employer did not present any evidence to contradict or rebut the presumption, the hearing officer was clearly wrong in determining that the accident did not combine with the pre-existing condition and result in plaintiff's disability beyond ...