Young v. Western Elec. Co., Inc.

• Decision Date: 25 March 1986
• Docket Number: No. CA,CA
• Citation: 486 So.2d 962
• Parties: Hollis W. YOUNG v. WESTERN ELECTRIC CO., INC. 85 0067. 486 So.2d 962
• Court: Court of Appeal of Louisiana — District of US

Page 962

486 So.2d 962

Hollis W. YOUNG v. WESTERN ELECTRIC CO., INC.

No. CA 85 0067.

486 So.2d 962

Court of Appeal of Louisiana, First Circuit.

March 25, 1986.

John W. DeGravelles, Baton Rouge, for plaintiff-appellee Hollis W. young.

Maxwell G. Kees, Baton Rouge, Timothy L. McCune, New Orleans, for defendant-appellant AT & T Technologies, Inc. (formerly Western Elec.).

Before LOTTINGER, COLE and CRAIN, JJ.

COLE, Judge.

The primary issues presented in this worker's compensation case are: 1) whether plaintiff's permanent, partial disability was related to a job accident which occurred on January 28, 1980; 2) whether defendant was entitled to a credit against worker's compensation for payments made under its sickness and accident disability benefits plan; 3) whether the court failed to consider plaintiff's earned income in setting compensation; 4) whether plaintiff is entitled to an award for medical expenses; 5) whether plaintiff's rate of compensation should be based on the rates in effect on the date of his initial injury or the date his permanent disability began; and, 6) whether defendant's refusal to make compensation payments to plaintiff was arbitrary and capricious.

FACTUAL BACKGROUND

On January 28, 1980 plaintiff, Hollis W. Young, sustained a job related injury to his lower back while employed by defendant, Western Electric Company. Plaintiff was referred by the company physician to Dr. Daniel Sinclair, an orthopedic surgeon. On his initial visit to Dr. Sinclair on February 1, 1980, plaintiff was diagnosed as suffering from a severe lumbosacral strain and was prescribed medication and physical therapy. Plaintiff was paid benefits by defendant equal to his full salary from Western Electric's sickness and accident disability benefit plan until his return to work on March 24, 1980. On that date he was released to return to light duty with restrictions as to climbing, lifting, bending or prolonged sitting. Plaintiff's position as an installer normally required such activities. Plaintiff was released to return to full duty on June 9, 1980. At that time Dr. Sinclair felt plaintiff probably would not suffer any permanent physical impairment.

Plaintiff testified he continued to suffer intermittent low back pain after he returned to work. He stated he attempted to see his doctor on several occasions, but was never able to be fit into the doctor's schedule.

On December 9, 1980, while bending over to put on his shoes, plaintiff suddenly began experiencing severe pain in his lower back. The following day he saw Dr. Sinclair, who stated plaintiff's condition was then worse than it had been on his initial visit in February. Plaintiff was hospitalized in January of 1981 in order to undergo a lumbar myelogram, after which he was diagnosed as suffering from a bulging intervertebral disc at the L-3 and L-4 level.

On March 11, 1981, plaintiff was released to return to work on light duty, again with restrictions as to climbing, heavy lifting or pulling. Plaintiff was last seen by Dr. Sinclair for his back condition in April of 1981. At that time Dr. Sinclair felt plaintiff should permanently restrict any work activities requiring much bending, climbing or lifting.

Plaintiff testified his condition continued to worsen thereafter. As a result, he consulted a second orthopedic surgeon, who referred him to Dr. Anthony Ioppolo, a neurosurgeon. Dr. Ioppolo hospitalized plaintiff for five days in November 1981 for traction.

Plaintiff was no longer able to work after December of 1981. On January 4, 1982 he was readmitted to the hospital for a second myelogram, which demonstrated the presence of a L-4 disc rupture. A lumbar disc excision was performed on January 28, 1982. However, plaintiff continued to experience problems with his back and was rehospitalized in April for conservative therapy. In July a new myelogram showed the presence of a recurrent disc herniation. Plaintiff underwent a second operation for the removal of a ruptured disc fragment in September of 1982.

Plaintiff's recovery from this operation has been good, but he was still under Dr. Ioppolo's care at the time of trial in June of 1984. According to Dr. Ioppolo plaintiff has suffered an anatomical disability of thirty to forty percent. In addition, he has a functional disability prohibiting him from doing any type of heavy labor, lifting, climbing or stooping.

Plaintiff last worked for defendant in December 1981. On January 5, 1983 he began receiving a company disability pension. Prior to this time he received payments under defendant's sickness and accident disability plan for six months at full salary and six months at half salary.

Defendant, which is self-insured with respect to worker's compensation, refused to make any compensation payments to plaintiff. The basis of this refusal was the contention plaintiff's disability did not result from his work related injury, but rather from the off the job incident occurring on December 9, 1980. Plaintiff filed suit seeking worker's compensation benefits, penalties and attorney fees. Following trial, judgment was rendered on October 9, 1984 in favor of plaintiff, finding him to be permanently partially disabled. The court awarded plaintiff $23,472.00 in past compensation benefits, $163.00 per week in future benefits, $20,066.02 for medical expenses, as well as full statutory penalties and $3,500.00 in attorney's fees, plus legal interest. Defendant was cast for all costs. Defendant has perfected a suspensive appeal from this judgment. Plaintiff answered the appeal, requesting an increase in attorney's fees.

The first issue raised by defendant is whether a causal connection existed between plaintiff's January 28, 1980 job related accident and his subsequent disability. Defendant maintains the work accident had absolutely no causal connection with plaintiff's disability, since plaintiff had fully recovered from this accident when he returned to full duty on June 9, 1980. In support of its position, defendant relies on a medical form submitted to it by Dr. Sinclair, dated June 9, 1980, indicating plaintiff would suffer no permanent physical impairment from his work-related injury, as well as the fact plaintiff did not consult a physician between June 9, and December 10, 1980. Defendant asserts plaintiff's disability is due entirely to the injury he received on December 9, 1980 while bending over to put on a shoe.

The law is clear that when a work-related injury is exacerbated by a subsequent incident, the aggravation of the injury is regarded as a development of the initial accident, even if the subsequent incident occurs off the employer's premises. Stewart v. Hospital Affiliates International, Inc. of Baton Rouge, 404 So.2d 944 (La.1981); see also Hall v. H.B. Zachary Company, 402 So.2d 761 (La.App. 4th Cir.1981), writ denied, 406 So.2d 611 (La.1981). In the present case, the trial court specifically found plaintiff's disability was related to his work injury and the incident on December 9, 1980 was merely an "indication" of an existing condition.

The evidence presented by plaintiff more than adequately supports the trial court's findings. Initially, we note it is undisputed plaintiff suffered a work injury to his back on January 28, 1980. Further, in a deposition which was filed into evidence, Dr. Sinclair clearly indicated a belief plaintiff's work injury either produced or aggravated his subsequent condition, resulting in his disability. No contradictory medical evidence was presented. The only other medical testimony introduced was the deposition of Dr. Anthony Ioppolo, the neurosurgeon who performed both of plaintiff's disc operation. In his deposition Dr. Ioppolo declined to express an opinion as to whether plaintiff's disability was casually related to his work accident, although he had earlier written a letter to plaintiff indicating a belief such a connection existed. (Plaintiff's exhibit number 1.) Additionally, defendant's argument that plaintiff suffered absolutely no back problems from June to December of 1980 is refuted by plaintiff's testimony to the effect he continued to suffer intermittent low back pain and was unable to perform some of his job duties during this period.

The trial court's credibility determinations and factual findings are entitled to great weight upon appeal and will not be disturbed in the absence of manifest error. Our thorough review of the record reveals no manifest error in the court's conclusion plaintiff's disability was causally related to his work accident of January 9, 1980.

Defendant next argues the trial court erred in not allowing it a credit against worker's compensation for payments it made to plaintiff under its sickness and disability benefits program. In making this argument, defendant relies on La.R.S. 23:1206 which at the time of plaintiff's injury provided as follows: ¹

"Any voluntary payments made by the employer ... to the injured employee ... and accepted by the employee, which, by the terms of this act, were not due and payable when made, may, subject to the approval of the court, be deducted from the payments to be made as compensation...."

In order for an employer to receive credit for payments made under a sickness and accident disability plan, it must show such payments were made and received as compensation. Naquin v. Texaco, Inc., 423 So.2d 31 (La.App. 1st Cir.1982); Caston v. Combined Insurance Company of America, 308 So.2d 287 (La.App. 1st Cir.1975). In Naquin this court stated:

"It is well established that sick leave payments are benefits which the employee has already earned by virtue of past services rendered and therefore may not be credited against compensation due. Kaupp v. City of New Orleans, 248 So.2d 99 (La.App. 4th Cir.1971); Guerrera v. City of New Orleans, 212 So.2d 223 (La.App. 4th Cir.1968); Hammond v. Sewerage & Water Board of New Orleans, 204 So.2d 699 (La.App. 4th Cir.1967); Chase v. Warren Petroleum...