Toth v. Ensco Environmental Services, Inc.

• Decision Date: 16 May 1989
• Docket Number: No. 87,87
• Citation: 546 So.2d 188
• Parties: David TOTH 1 v. ENSCO ENVIRONMENTAL SERVICES, INC. and Aetna Insurance Company and/or INA (Insurance Company of North America). CA 1301.
• Court: Court of Appeal of Louisiana — District of US

Page 188

546 So.2d 188

David TOTH ¹ v. ENSCO ENVIRONMENTAL SERVICES, INC. and Aetna Insurance Company and/or INA (Insurance Company of North America).

No. 87 CA 1301.

Court of Appeal of Louisiana First Circuit.

May 16, 1989.

Rehearing Denied June 30, 1989.

Kenneth R. Williams, Baton Rouge, for plaintiff-appellant David Toth.

David T. Butler, Baton Rouge, for defendant-appellee INA/Aetna Ins. Co.

Before WATKINS, CARTER, LANIER, ALFORD and LeBLANC, JJ.

CARTER, Judge.

This is an appeal from a trial court judgment rejecting plaintiff's claim for worker's compensation benefits.

FACTS

On June 21, 1985, while in the course and scope of his employment with Ensco Environmental Services, Inc. (Ensco), plaintiff, David Toth, was shot in the lower abdomen by an unknown sniper. As a result of the accident, plaintiff was unable to work from June 21, 1985, until July 15, 1985. During this time, Ensco's worker's compensation insurer, Aetna Insurance Company/Insurance Company of North America (Aetna), paid compensation benefits covering the initial period of disability ² and $6,488.98 in medical and surgical expenses.

Thereafter, plaintiff returned to work for Ensco from July 15, 1985, through November 17, 1985. Between November, 1985, and late April, 1986, plaintiff occasionally worked for Ensco at its warehouse in the Baton Rouge area, although he was idle much of the time due to a lack of work. Plaintiff was last employed with Ensco on April 30, 1986.

Approximately two months after he was shot, plaintiff began experiencing episodic pain and numbness in his right leg and groin, which gradually intensified. On September 5, 1986, plaintiff filed a petition for worker's compensation benefits, contending that he was unable to work because of the residual pain and numbness caused by the gunshot wound.

After trial, the court determined that, although there was some disability, the evidence did not conclusively show that plaintiff's disability was a result of his work-related injury and dismissed plaintiff's suit. ³ Plaintiff then filed a motion for new trial, or alternatively, for an amendment to the judgment. ⁴ After these motions were denied, plaintiff perfected the instant appeal. Plaintiff subsequently filed, in the appellate court, a motion to remand for additional evidence, alleging that, since plaintiff had undergone certain tests he had previously refused to undergo, the case should be remanded for the admission of such evidence. By order dated November 18, 1988, this court referred the motion to remand to the merits.

In his appeal, plaintiff assigns the following specifications of error: ⁵

1. The trial court erred in holding that plaintiff failed to establish that the on-the-job injury i.e., the shooting, was a legal cause of his disability.

2. The trial court erred in requiring plaintiff to bear too strict a burden of proof on the issue of causation.

3. The trial court erred in failing under the peculiar circumstances of this case to apply the "reasonable possibility" test in determining whether plaintiff proved causation.

4. The trial court erred in attaching undue significance to the testimony of Dr. Richard Gold, an evaluating physician, and in disregarding the testimony of other doctors, including, Dr. James Robertson, the treating physician.

5. The trial court gave undue weight to plaintiff's alleged refusal to submit to the additional neurological testing suggested by Dr. Gold.

6. The court erroneously concluded that plaintiff refused to submit to the additional neurological tests and unduly penalized plaintiff because the tests were not performed.

7. The trial court erred in ignoring the fundamental principle that the workmen's compensation act is to be construed in the spirit of liberality and in favor of granting recovery to the employee especially in close cases.

8. The court erred in denying plaintiff's motion for a new trial and/or refusing to amend its judgment to provide that it would reconsider the causation issue if plaintiff were to submit to the additional neurological tests.

The central issue in this case is whether the gunshot wound plaintiff received on June 21, 1985, while in the course and scope of his employment with Ensco, caused him to be disabled from April 30, 1986, when he last worked until his death on February 4, 1988.

LEGAL PRECEPTS

The claimant in a worker's compensation proceeding has the burden of establishing his disability and its causal relation with the employment accident by a preponderance of the evidence. Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320 (La.1985); Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977); Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Pelous v. Guidry, 520 So.2d 1042 (La.App. 3rd Cir.1987), writ denied, 522 So.2d 565 (La.1988). Proof by a preponderance of evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982); Scott v. Acadian Concrete Co., Inc., 516 So.2d 446 (La.App. 1st Cir.1987), writ denied, 520 So.2d 751 (La.1988).

In order for the claimant to recover worker's compensation benefits, it must be determined that the employment somehow caused or contributed to the disability, but it is not necessary that the exact cause be found. Walton v. Normandy Village Homes Association, Inc., supra; Lucas v. Insurance Company of North America, supra. A claimant's disability is presumed to have resulted from an accident if before the accident the claimant was in good health, but commencing with the accident the symptoms of the disabling condition appeared and continuously manifested themselves afterwards, provided either that there is sufficient medical evidence to show a reasonable possibility of causal connection between the accident and the disabling condition, Allor v. Belden Corporation, 393 So.2d 1233 (La.1981); Lucas v. Insurance Company of North America, supra, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection. Walton v. Normandy Village Homes Association, Inc., supra; Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829 (La.1982); Haughton v. Fireman's Fund American Ins. Companies, 355 So.2d 927 (La.1978). Cf. Thomas v. U.S. Cas. Co., 218 Ga. 493, 128 S.E.2d 749 (1962).

A worker's preexisting condition does not bar his recovery under the Louisiana Worker's Compensation statute. An employer takes the worker as he finds him. An abnormally susceptible worker is entitled to no less protection under the compensation statute than a healthy worker. It is immaterial that the diseased or weakened condition eventually might have produced the disability outside the employment situation. Guillory v. United States Fidelity & Guaranty Insurance Company, 420 So.2d 119 (La.1982); Tucker v. Associated Grocers, Inc., 473 So.2d 328 (La.App. 1st Cir.1985), writ denied, 477 So.2d 716 (La.1985). In other words, a preexisting disease or infirmity of the employee does not disqualify a claim, if the work-related injury aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed. Lucas v. Insurance Company of North America, supra; Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973); Larson, Workmen's Compensation Law, Sec. 12.21, p. 3-336.

When 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 a causal connection between the accident and the activation of the disabling condition, the employee's work-related injury is presumed to have aggravated, accelerated, or combined with his preexisting disease or infirmity to produce his disability. Walton v. Normandy Village Homes Association, Inc., supra; Hammond v. Fidelity & Casualty Company of New York, supra; Haughton v. Fireman's Fund American Ins. Companies, supra; Sarah Simpson v. Caddo Parish School Board, 540 So.2d 997 (La.App. 2nd Cir.1989).

Once the disabled employee establishes the presumption of a causal relationship, the party denying the existence of the presumed fact assumes both the burden of producing evidence and the burden of persuasion on the issue. Walton v. Normandy Village Homes Association, Inc., supra. The presumption of causation is not irrebuttable, rather when established, its effect is to shift the burden of proof to the defendant. Robertson v. Scanio Produce & Institutional Foods, Inc., 449 So.2d 459 (La.1984); Haughton v. Fireman's Fund American Ins. Companies, supra. In other words, in order for the party denying the existence of the presumed causal relationship to prevail, he must produce evidence and persuade the trier of fact that it is more probable than not that the work-related injury did not accelerate, aggravate, or combine with the preexisting disease or infirmity to produce the employee's disability. Walton v. Normandy Village Homes Association, Inc., supra.

In Walton v. Normandy Village Homes Association, Inc., supra, the Supreme Court stated:

The effect of the presumption is not so slight and evanescent that it is spent and disappears upon the mere production of evidence by the adversary. It is a true presumption which has been created for policy reasons that are similar to and just as strong as those that underlie the compensation principle itself: the probability of the causal connection under the circumstances which give rise to the presumption, the difficulty of proving causation with testimony by medical experts often sharply divided by differing schools of opinion, and the desirability of reducing the margin of error inherent in...