Rothell v. City of Shreveport

• Decision Date: 27 October 1993
• Docket Number: No. 25,182-CA,25,182-CA
• Citation: 626 So.2d 763
• Parties: Roy ROTHELL, Plaintiff-Appellant, v. CITY OF SHREVEPORT, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 763

626 So.2d 763

Roy ROTHELL, Plaintiff-Appellant, v. CITY OF SHREVEPORT, Defendant-Appellee.

No. 25,182-CA.

Court of Appeal of Louisiana Second Circuit.

Oct. 27, 1993.

Order Amending Decision on Limited Grant of Rehearing Dec. 1, 1993.

Broussard, Bolton, Halcomb & Vizzier by Daniel E. Broussard, Jr., Alexandria, for appellant.

Jerry N. Jones, City Atty., Lawrence K. McCollum, Asst. City Atty., Shreveport, for appellee.

Before MARVIN, BROWN and STEWART, JJ.

STEWART, Judge.

Roy Rothell, retired Deputy Fire Chief for the City of Shreveport, filed a workers' compensation suit against the City after he had a heart attack followed by a six bypass heart surgery. The hearing officer found in favor of the City, and Rothell appeals.

FACTS

Roy Rothell retired as Shreveport Fire Department (SFD) Deputy Fire Chief on March 1, 1990, after 42 1/2 years with the department. He last performed work as a SFD employee on December 31, 1989. On July 31, 1990, he suffered a myocardial infarction (heart attack) at his residence in Eureka Springs, Arkansas. Rothell later underwent a six bypass coronary artery operation in the Springdale, Arkansas hospital.

Rothell filed suit against the City of Shreveport, alleging that his heart and lung disorders were occupational diseases as defined by the Heart and Lung Act, R.S 33:2581, and, therefore, he is entitled to receive workers' compensation benefits.

At the administrative hearing, medical evidence showed that Rothell had developed heart and lung disease over a period of years while working for the SFD. Other evidence showed that Rothell had smoked for a 17-20 year period which ended in approximately 1965. Testimony was unrebutted that he had been exposed to numerous fires which involved toxic fumes or chemicals. There was detailed testimony about his duties for the various positions he held with the fire department, especially his stressful administrative responsibilities as Assistant Chief and as Deputy Chief.

The administrative hearing officer found that the defendants rebutted the R.S. 33:2581 presumption that Rothell's heart condition was related to his employment. In her "Memorandum Opinion and Judgment", the hearing officer stated the following:

Dr. Thomas Brown, an expert in adult cardiovascular disease, testified there are six accepted major risk factors in the development of a heart attack:

1) Smoking;

2) Hypertension;

3) Hypercholesterolemia;

4) Diabetes;

5) Family History; and

6) Male over the age of 55.

Of these six major risk factors there was medical evidence that the claimant suffered from five, a 20 year history of smoking, unchecked hypertension, hypercholesterolemia, a family history of heart and cardiovascular disease, and the status of a male over the age of 55. Although Dr. Brown admitted that the stress of claimant's position as Deputy Fire Chief might have aggravated his predisposition to hypertension, he testified that stress itself is considered to be a minor factor in the development of a heart attack.... In addition to the major risk factors listed above the claimant had a history of alcohol abuse and obesity. All of the major risk factors applicable to the claimant are the result of the claimant's heredity and lifestyle, and are not related to his job as a firefighter.

Accordingly, the hearing officer denied Rothell's claim. Rothell appeals this ruling.

In the proceedings below, Rothell moved to reduce the costs of the appeal and the hearing officer denied his motion. Rothell also appeals this ruling.

DISCUSSION

Legal Principles: The City's Burden of Proof

The applicable statute, The Heart and Lung Act LSA-R.S. 33:2581, reads as follows:

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.

By enacting LSA-R.S. 33:2581, which provides, inter alia, that heart disease in a fireman is presumed to have developed during employment if the disability manifests itself after five years of tenure, our legislature acknowledged that a fireman, as a result of the stress and strain of his work, is predisposed to vascular diseases and heart problems. See Landry v. City of New Orleans, 266 So.2d 492, 495 (La.App. 4th Cir.1972).

The Louisiana legislature created this presumption that a firefighter's heart or lung disease developed during, and as a result of, the employment as long as it manifested after 5 years of employment. LSA-R.S. 33:2581. The Heart and Lung Act effectively shifts the burden of proof 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, 403 (on rehearing), (La.App. 4th Cir.1975), writ refused, 329 So.2d 760 (La.1976). At this point, a rebuttable presumption exists that the nature of the work caused the disease. Accordingly, the employer bears the difficult burden of proving otherwise and, unless affirmative proof is adduced to prove a lack of causation, the presumption requires that the disabled fireman be entitled to coverage under the Act. Vincent at 403.

It is not necessary for the claimant to prove that the employment was the sole cause of the heart injury, so long as it is shown to be a contributing, accelerating or aggravating factor. Reid v. Gamb, Inc., 509 So.2d 995, 997 (La.1987); Tucker v. Pony Express Courier Corp., 562 So.2d 897, 900 (La.1990) (citations omitted). As stated in Vincent, supra,

Though it is termed rebuttable it is, in fact, almost impossible to rebut. The City is placed in the difficult position of being obliged to prove a negative--i.e., [claimant]'s heart disability could not have resulted from his service as a firefighter.

As the Louisiana Supreme Court stated years ago, "[w]e have repeatedly said it is immaterial that the disability could have been brought on by other causes other than trauma, if in fact trauma on the job which meets the standard of 'accidental injury' within the Workmen's Compensation Act is a disabling factor." Cf. Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816, 828 (1969).

Application of the Proper Standard of Proof

The Heart and Lung Act specifically sets out the presumptions: as long as the heart disease manifested itself five years into the employment, it is presumed, prima facie, that the heart injury arose both during and because of the employment as a firefighter. Rothell worked for SFD for 42 1/2 years as a firefighter in various positions. The record gives no indication that his heart disease manifested during the first half of his employment as a firefighter. Thus, at issue is, as a matter of law, whether the City rebutted the R.S. 33:2581 statutory presumptions. We agree with our brethren of the Third Circuit Court of Appeal in Vincent, supra: the defendant, here the City of Shreveport, has to show that the employment was not a cause in fact of the heart attack.

Rothell presented testimony by two expert witnesses, Dr. Robert C. Hernandez who specializes in emergency and internal medicine, and cardiologist Dr. Jim Haisten. Dr. Hernandez was Rothell's treating physician during the early 1980's through about 1986. Dr. Hernandez testified that, from his interactions as Rothell's physician, it was his opinion that the stress of Rothell's job accelerated the hypertension to the point that it accelerated the atherosclerosis and eventual cardiac event. Although Dr. Hernandez stated that Rothell could have had the same heart attack if he had been a secretary, it was Hernandez' opinion that there is greater potential that Rothell's job played a part in the acceleration of the hypertension than that it did not. In his December 7, 1990 response to a request for medical information, Dr. Hernandez stated:

I feel Mr. Rothell's hypertension was a major risk factor for the development of atherosclerotic cardiovascular disease and coronary thrombosis, as anyone would agree from medical literature and statistics. I do think, also, that his hypertension was worsened by the stress he encountered in the fire fighting community.... In closing, I do feel that in Mr. Rothell's case, heart disease was an occupational hazard in that his hypertension was more symptomatic due to the stress of his position as an Administrator and a Fire Fighter within the Fire Department.

Both Dr. Hernandez and Dr. Haisten agreed that (1) Rothell had had heart disease for several years prior to his heart attack, (2) Rothell had several factors which contributed to the development of his heart disease, and (3) a stressful work environment could be a contributing factor in his risk profile for the development of coronary disease.

The City of Shreveport presented one expert witness, Dr. Thomas Allen Brown, a board certified cardiologist. Dr. Brown testified that he did not think that stress caused Rothell's heart attack. The basis for Dr. Brown's opinion was medical records and other documents. He did not examine Rothell and was not aware of the duties of a fireman.

Dr. Brown testified that stress has not been shown to produce atherosclerotic cardiovascular (heart) disease. He stated that stress is a minor risk factor that has never, in cardiovascular statistical literature, been proven to be a factor in the...