Richards v. St. Bernard Parish Gov't

• Decision Date: 02 May 2012
• Docket Number: No. 2011–CA–1724.,2011–CA–1724.
• Citation: 91 So.3d 524
• Parties: Elizabeth RICHARDS v. ST. BERNARD PARISH GOVERNMENT.
• Court: Court of Appeal of Louisiana — District of US

91 So.3d 524

Elizabeth RICHARDS

v.ST. BERNARD PARISH GOVERNMENT.

No. 2011–CA–1724.

Court of Appeal of Louisiana, Fourth Circuit.

May 2, 2012.

Louis L. Robein, Jr., Robert H. Urann, Robein Urann Spencer Picard & Cangemi, APLC, Metairie, LA, for Plaintiff/Appellant.

David B. Parnell, Jr., Guice A. Giambrone, III, William H. Reinhardt, Jr., Blue Williams, L.L.P., Metairie, LA, for Defendant/Appellee.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

[4 Cir. 1]The late Raleigh Richards worked for more than thirty-two years in the classified fire service of St. Bernard Parish. Within three years of his retirement, he died of coronary artery disease. His widow, Elizabeth Richards, filed a claim with the Office of Workers' Compensation for death benefits, including weekly indemnity payments and funeral expenses. The parish government contested the claim on several grounds.

After a trial on the merits, the workers' compensation judge decided that Mrs. Richards was not entitled to death benefits because he found that her husband's coronary artery disease was not caused by his work. Arguing that the parish government did not overcome the statutory presumption of causation provided by the Heart and Lung Act (La. R.S. 33:2581), Mrs. Richards appeals the decision of the WCJ.

Upon our review for manifest error, we find that the WCJ was clearly wrong in finding that the parish government's evidence ruled out Mr. Richards' firefighting duties as a cause of his death from coronary artery disease. We thus [4 Cir. 2]reverse the decision of the WCJ and find that Mrs. Richards is entitled to the weekly indemnity benefits due her as a widow, with legal interest thereon from the due date of each installment commencing with the date of Mr. Richards' death, as well as the burial expenses, and render judgment accordingly.

We explain our decision in the Parts which follow.

I

In this Part, we first give an overview of the Heart and Lung Act, especially as it may be compared and contrasted with other statutory provisions. Then we address how the intermediate appellate courts, and especially our court, have applied the presumptions provided for in the Act.

A

“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.” La. R.S. 33:2581.¹ And the Act continues, “[t]he employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana [4 Cir. 3]to which one suffering an occupational disease is entitled as service connected in the line of duty ...” Id.

From these opening provisions of the Act, we note first that by its own terms the Act applies exclusively to those employed in the classified fire service. And for those exclusive beneficiaries of the Act, heart disease will be treated as an occupational disease under the workers' compensation law. When a disease is classified as an occupational disease that is covered under the workers' compensation law, the claimant is relieved of the burden of establishing “personal injury by accident arising out of and in the course and scope of his employment.” SeeLa. R.S. 23:1031.1 A; see alsoLa. R.S. 23:1021(1) and 1032 A(1)(a).

Under the general workers' compensation provisions, heart disease is not an occupational disease. SeeLa. R.S. 23:1031.1 B (“heart-related and perivascular disease are specifically excluded from the classification of an occupational disease”). In order for heart-related or perivascular disease to be compensable under the general workers' compensation law, a claimant must demonstrate by clear and convincing evidence that (1) the physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and (2) the physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death. SeeLa. R.S. 23:1021(8)(e). We have noted that “[i]t is ... more difficult for a worker to prove that heart-related and perivascular injuries suffered on the job are [4 Cir. 4]compensable, and a worker seeking benefits for an employment-related heart attack must meet a more restrictive statutory test with an elevated burden of proof.” Simmons v. Task Force Staffing Services, Inc., 09–1384, p. 6 (La.App. 4 Cir. 1/13/10), 30 So.3d 223, 226, citing to Harold v. La Belle Maison Apartments, 94–0889 (La.10/17/94), 643 So.2d 752, 754–755.

Thus, we can readily see that The Heart and Lung Act affords extraordinarily special treatment to firefighters in the classified fire service. For them alone is heart-related disease classified as an occupational disease. And by classifying the heart-related disease of a firefighter in the classified fire service as an occupational disease, such firefighter is not relegated to the elevated burden of proof by clear and convincing evidence.

But the Act provides a further benefit to firefighters whenever the heart-related disease “is manifested after the first five years of employment.” La. R.S. 33:2581. In the ordinary occupational disease claim, the claimant must prove that the disease is peculiar to the particular occupation or employment in which the employee is exposed to such disease. SeeLa. R.S. 23:1031.1 B; see also Evans v. Hampton Inn, 08–1195 (La.App. 3 Cir. 3/4/09), 6 So.3d 380. The further benefit to the five-year firefighting veteran is that the heart-related disease “shall be presumed, prima facie, to have developed during the employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed.” La. R.S. 33:2581. Notably, this further benefit of the presumptions does not extend to volunteer firefighters. SeeLa. R.S. 23:1036 I(1) [4 Cir. 5]“The presumption under R.S. 33:2581 relating to the development of heart and lung disease during fire service shall not be available to volunteer members claiming benefits under this Section.”)

Thus, a five-year veteran employee in the classified fire service is not only entitled to workers' compensation benefits by the Act's treatment of his heart-related disease as an occupational disease, but is also entitled to a presumption that such heart-related disease developed during his employment and was caused by or resulted from the nature of the work performed. It is not disputed that the late Mr. Richards, who worked for more than thirty-two years in the classified fire service, is entitled to the presumption.

B

We turn now to a discussion of how we, and the other Louisiana appellate courts, have consistently applied the presumption.

In applying a predecessor version of La. R.S. 33:2581, we stated that the Legislature's provision of the presumption “effectively shift[ed] the burden of proof to the employer who became obliged to prove the lack of causation between the disease and the employment.” ²Vincent v. City of New Orleans, 326 So.2d 401, 403 (La.App. 4th Cir.1975). We went on to state that “[t]his shifting of the burden of proof obviously imposes an onerous task upon the employer, but this was, we believe, intended by the legislature.” Id. The burden of affirmatively [4 Cir. 6]proving that the heart-related disease is not causally related is “admittedly, very difficult.” Id. We even noted that the employer had failed to call a physician, which we described as “understandable since the statutory burden on the City in this instance essentially required it to prove a negative—an almost impossible evidentiary task.” Id., n. 2.

We recognized, and essentially reiterated, on rehearing that “the force of the presumption” in favor of the employee is such that although “it is termed rebuttable it is, in fact, almost impossible to rebut.” Vincent v. City of New Orleans, 326 So.2d at 405 (on rehearing). The employer “is placed in the difficult position of being obliged to prove a negative,” which is that the heart-related disease “could not have resulted from his service as a firefighter.” Id. But we concluded “that the statute cannot fairly be construed in any other way.” Id.

We found that the employer was unable to overcome the Act's presumption despite eminent medical opinions that arteriosclerosis develops at any early age, is not unusual in someone with a history of hypertension, cigarette smoking and obesity, and that it is not related to any occupation. See Saling v. City of New Orleans, 398 So.2d 1205, 1207–1208 (La.App. 4th Cir.1981). But the medical opinions did not rule out “that a job or life style could be an aggravating factor in an existing disease.” Id. at 1208. Thus, we found the physicians' opinions “insufficient to overcome the presumption.” Id.

Again, we found that medical testimony which points to causes of heart-related disease other than firefighting but cannot “rule out his occupation as having [4 Cir. 7]aggravated or contributed to that condition” is insufficient to overcome the presumption. See Vallelungo v. City of New Orleans, 95–0264 (La.App. 4 Cir. 5/1/96), 673 So.2d 1292, 1296. We stated that the Heart and Lung Act does not require that the firefighting employment be “the only cause” of the heart-related disease; it is sufficient that the employment “contributed, accelerated, or aggravated the condition.” Id. Thus, unless the evidence rules out the proposition that work as a firefighter could not have contributed to or aggravated the disease, the presumption has not been rebutted. Id.

We later emphasized that in order to rebut the presumption of the Act, the employer must prove that the fire service did not precipitate, accelerate, aggravate, or otherwise cause or contribute to the heart-disease. Arsenaux v. City of New Orleans, 98–1405 (La.App....