Stelly v. CNA Ins. Co.
| Decision Date | 21 October 2015 |
| Docket Number | No. 15–379.,15–379. |
| Parties | Donald Blaine STELLY v. CNA INSURANCE COMPANY and Fresenius Medical Care. |
| Court | Court of Appeal of Louisiana — District of US |
177 So.3d 159
Donald Blaine STELLY
v.
CNA INSURANCE COMPANY and Fresenius Medical Care.
No. 15–379.
Court of Appeal of Louisiana, Third Circuit.
Oct. 21, 2015.
Howard C. Dejean, Law Office of Howard C. Dejean, APLC, Opelousas, LA, for Plaintiff/Appellant, Donald Blaine Stelly.
Roger A. Javier, Eric K. Buerger, The Javier Law Firm, LLC, New Orleans, LA, for Defendants/Appellees, Fresenius Medical Care NA and CNA Insurance Company.
Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
GENOVESE, Judge.
In this workers' compensation case, Claimant, Donald Blaine Stelly, appeals a judgment of the Office of Workers' Compensation (OWC) in favor of his employer, Fresenius Medical Care NA,1 and its insurer, CNA Insurance Company (collectively Fresenius), denying his Motion for Summary Judgment,2 finding him to be temporarily and totally disabled, and ordering that he submit to vocational rehabilitation. For the reasons that follow, we affirm in part, reverse in part, and render.
FACTS AND PROCEDURAL HISTORY
Mr. Stelly was injured in a work-related accident on September 10, 2005, when he fell from a ladder. Consequently, Fresenius paid Mr. Stelly's related medical expenses and also paid him workers' compensation indemnity benefits. In connection with his injury, Mr. Stelly underwent vocational rehabilitation.
However, on March 19, 2014, Mr. Stelly filed a Disputed Claim for Compensation (1008), claiming that there existed a bona-fide dispute as to whether his current disability status was temporary total or permanent total. Also in dispute was Fresenius' entitlement to have an additional functional capacity evaluation (FCE) performed. Mr. Stelly sought permanent and total disability status along with penalties and attorney fees. Concomitant with the 1008, Mr. Stelly filed a Motion for Determination of Permanent, Total Disability, Disallowance of Demand for Functional Capacity Examination and Opposition to Motion to Suspend Benefits.
Additionally, on May 12, 2014, Mr. Stelly filed a Motion for Summary Judgment, contending "that there is no dispute as to any material fact, since his treating physician, Dr. George R. Williams[,] and defendant's physician, Dr. Thad Broussard[,] have both declared that plaintiff, DONALD BLAINE STELLY, is permanently and totally disabled[ ] and that he is entitled to judgment as a matter of law."3 The hearing on that motion was deferred to trial on the merits.
In response, Fresenius filed an answer generally denying the allegations contained in Mr. Stelly's 1008. It also filed a motion for the suspension of benefits and a motion to compel an FCE. Additionally, Fresenius argued that Mr. Stelly's Motion for Summary Judgment was premature since Mr. Stelly failed to attend the FCE and that material facts remained in dispute since the physicians disagreed on whether Mr. Stelly was permanently and totally disabled.
Considering the motions filed, on July 1, 2014, the workers' compensation judge (WCJ) ordered that an independent medical examination (IME) be performed by Dr. Clark Gunderson, an orthopedic surgeon. Dr. Gunderson's opinion was sought on the issues of Mr. Stelly's disability status and the need for the additional FCE.4 The IME was performed on August 7, 2014.
Fresenius, thereafter, scheduled an FCE for September 26, 2014. Mr. Stelly sought to quash the FCE, arguing that Fresenius was not entitled to an additional FCE, having already had one performed by a medical professional of its choosing. After the issue was submitted on briefs, the WCJ signed a judgment on September 24, 2014, denying Fresenius' motion to compel an additional FCE.
Mr. Stelly subsequently re-urged his motion for summary judgment and attached two additional items in support thereof, a 2009 FCE report by the Fontana Center and the reports of Genex Services, the rehabilitation counseling service. This motion was also deferred to the trial on the merits.
Following a trial on the merits, the WCJ: (1) denied Mr. Stelly's Motion for Summary Judgment; (2) found Mr. Stelly to be temporarily and totally disabled; and, (3) ordered that Mr. Stelly submit to vocational rehabilitation. From said judgment, Mr. Stelly appeals.
ASSIGNMENTS OF ERROR
Mr. Stelly presents the following assignments of error for our review on appeal:
ASSIGNMENT OF ERROR # 1
The [t]rial [c]ourt erred in failing to grant the Motion for Summary Judgment, as the evidence uncontrovertedly establishes that [Mr. Stelly] is physically disabled and has undergone a failed attempt at rehabilitation[.]
ASSIGNMENT OF ERROR # 2
The [t]rial [c]ourt erred in failing to recognize that [Mr. Stelly] has already undergone a failed attempt at rehabilitation and in applying a standard of "some physical activities" to the determination of disability, rather than "to engage in any self-employment or occupation for wages of any kind" under [La.R.S.] 23:1221(2).
ASSIGNMENT OF ERROR # 3
The [t]rial [c]ourt erred in finding [Mr. Stelly] temporarily totally disabled rather than permanently totally disabled under [La.R.S.] 23:1221(2), as the evidence clearly shows that [he] is permanently unable ["]to engage in any self-employment or occupation for wages of any kind.["]
LAW AND DISCUSSION
In his first assignment of error, Mr. Stelly contends that the WCJ erred in denying his motion for summary judgment. We disagree.
In Hitchcock v. Heritage Manor Nursing Home, 05–1010, pp. 4–5, (La.App. 3 Cir. 2/1/06), 922 So.2d 764, 767, (emphasis added) this court, discussing motions for summary judgment, stated:
In considering whether a genuine issue exists, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.
Pritchard v. American Freightways Corp., 37,962, pp. 3–4 (La.App. 2 Cir. 12/10/03), 862 So.2d 476, 478 (emphasis added) (citations omitted). If in evaluating the evidence, the court considered the merits, made credibility determinations, evaluated testimony, or weighed evidence, summary judgment must be reversed.
Strickland v. Doyle, 05–11, p. 4 (La.App. 3 Cir. 4/6/05), 899 So.2d 849, 852, writ denied, 05–1001 (La.6/3/05), 903 So.2d 466.
In the instant matter, in order to determine the disability status of Mr. Stelly, and considering the evidence presented, the WCJ would have been required to evaluate testimony and to weigh the evidence, which is impermissible at the summary judgment stage. Accordingly, genuine issues of material fact remained so as to preclude the grant of summary judgment, and we affirm the WCJ's denial of same.
Both Mr. Stelly's second and third assignments of error address the WCJ's failure to find that he is permanently and totally disabled.5 In Colwell v. Summit
Retirement Ctr., 12–1186, p. 3 (La.App. 3 Cir. 3/6/13), 128 So.3d 1029, 1032, writ denied, 13–755 (La.App.5/31/13), 118 So.3d 395, this court stated the following with respect to an appellate review of an employee's disability status:
The finding of disability within the framework of the workers' compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately, the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Severio v. J.E. Merit Constructors, Inc., 2002–0359, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 465, 469.
Batiste v. Tenet Healthcare Corp., 09–1192, pp. 3–5 (La.App. 1 Cir. 2/12/10), 35 So.3d 352, 354–55, writ denied, 10–559 (La.5/7/10), 34 So.3d 864.
A finding of permanent total disability status requires a consideration of two statutes, La.R.S. 23:1221 and La.R.S. 23:1226. Our supreme court has instructed that when considering such claims, these statutes are to be read in pari materia . Comeaux v. City of Crowley, 01–32 (La.7/3/01), 793 So.2d 1215.
Louisiana Revised Statutes 23:1221(2) sets forth the burden of proof that an employee seeking an award of permanent and total disability benefits must satisfy. When, as in the instant matter, an employee is not currently employed, La.R.S. 23:1221(2)(c) (emphasis added) is the controlling statutory provision, which provides as follows:
For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in...
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