Klint Fruge v. Hebert Oilfield Construction, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-349

KLINT L. FRUGE

VERSUS

HEBERT OILFIELD
CONSTRUCTION, INC., ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT,
PARISH OF ST. LANDRY, NO. 00-3250,
HONORABLE JAMES T. GENOVESE, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

M. Terrance Hoychick
Young, Hoyhick & Aguillard
Post Office Drawer 391
Eunice, Louisiana 70535-0391
(337) 457-9331
Counsel for Plaintiff/Appellee:
Klint Fruge

John W. Johnson
Clanton & Johnson
Post Office Box 688
Eunice, Louisiana 70535-0688
(337) 457-3365
Counsel for Plaintiff/Appellee:
Klint Fruge

Dave T. Johnson
Attorney at Law
405 West Main Street, Suite 108
Lafayette, Louisiana 70501
(337) 593-0120
Counsel for Plaintiff/Appellee:
Klint Fruge

James Ryan III
James Ryan III & Associates, LLC
201 St. Charles Avenue, Suite 2530
New Orleans, Louisiana 70170-2530
(504) 599-5990
Counsel for Defendants/Appellants:
AXA Global Risks U.S. Insurance Company
Raul Chavez
Hebert Oilfield Construction, Inc.

SULLIVAN, Judge.

Klint Fruge filed suit for personal injuries allegedly sustained in an automobile

accident, naming as Defendants the other driver and his employer, Raul Chavez and

Hebert Oilfield Construction, Inc., and their insurer, AXA Global Risks U. S.

Insurance Company. After a bench trial in which Mr. Chavez was found to be 100%

at fault, Mr. Fruge was awarded $11,745.61 in stipulated medical expenses;

$2,315.70 in past lost wages; $100,000.00 in general damages; and $90,000.00 in loss

of earning capacity. On appeal, Defendants argue that Mr. Fruge did not prove a loss

of earning capacity, or alternatively, that the amount awarded for those damages is

excessive, given that he has been retrained and now earns more than he did prior to

the accident. For the following reasons, we find no error and affirm.

Discussion of the Record

The accident occurred on August 27, 1999, when Mr. Fruge, then 21,

broadsided a truck driven by Mr. Chavez, who failed to stop at a flashing red light.

About three hours after the accident, Mr. Fruge went to a hospital emergency room

with complaints of low back pain that radiated through the legs. He was referred to

Dr. Louis Blanda, an orthopedic specialist, after the results of an MRI revealed

degenerative disc disease and a small herniation at L5-S1.

Dr. Blanda treated Mr. Fruge conservatively through September of 2002,

during which time he complained of stiffness and pain in the low back, numbness and

pain in the right leg, particularly after sitting too long, and a slight weakness in the

right foot. In addition to prescribing pain and anti-inflammatory medication,

Dr. Blanda ordered a course of physical therapy, which Mr. Fruge said reduced his

pain by 60-70% after five months of treatment. Dr. Blanda believed Mr. Fruge’s

symptoms were consistent with a small L5-S1 herniation, for which he assigned a

10% anatomical impairment of the body as a whole. Because he did not diagnose a

neurological deficit, Dr. Blanda did not recommend surgery. However, he cautioned

that a traumatic disc injury begins an arthritic process whereby the disc degenerates

earlier and more severely than it would under normal circumstances. Consequently,

Dr. Blanda believed that Mr. Fruge was more likely to need surgery in the future than

the average person who did not have a disc problem at such an early age. Dr. Blanda

strongly recommended against Mr. Fruge performing heavy work, as the more stress

put on the back would increase the chance of needing a fusion in the future.

Dr. Blanda believed Mr. Fruge should lift no more than 20-25 pounds, with no

repetitive bending or stooping. He had no objection to Mr. Fruge performing medium

work, provided he was qualified for it and a functional capacity examination (FCE)

showed him capable of it. At the time of his deposition, Dr. Blanda understood that

Mr. Fruge was performing light-duty work with accommodations from his employer.

Should Mr. Fruge continue on that path, Dr. Blanda believed there was less of a

chance of severe problems in the future.

Another orthopedic specialist, Dr. Douglas Bernard, examined Mr. Fruge on

May 3, 2001, at the request of Defendants. Dr. Bernard recorded a normal

examination with no neurologic findings. He did not believe that the degeneration

at L5-S1 was caused by the accident, but he acknowledged that less than 10% of the

population would have a degenerative disc by age 21. He agreed with Dr. Blanda that

Mr. Fruge was at a greater risk for future surgery because of the herniation and that

Mr. Fruge would have a reduced chance of future back problems if he switched from

medium or heavy labor to a supervisory position with minimal lifting.

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At the time of the accident, Mr. Fruge was a 21-year-old machinist employed

by Stabil Drill Specialties, Inc. (Stabil Drill). He described that position as involving

standing at all times, with frequent stooping and bending and some lifting of 40-50

pounds. He testified that, because he could not perform this work after the accident,

his employer “made up” a job for him as a night supervisor in which he handled most

of the paperwork from the day and night shifts. This accommodation, he explained,

permitted him to sit most of the time, unlike the other night supervisors who were

expected to stand all night overseeing the machinists under them. After working for

one year as a night supervisor, Mr. Fruge was retrained by his employer as a computer

numerical control (CNC) operator, a job he described as “more of a mental position

than manual position” that did not require stooping or bending. However, because

he cannot stand the entire shift without pain, he explained that his employer continues

to make accommodations not available to other CNC operators, in that he is allowed

to sit and take breaks as needed and someone is available to help him with the

pushing and pulling requirements of the job. As a machinist, Mr. Fruge earned

$28,614.00 in 1999, the year of the accident. In 2000, he earned $51,013.00 as a

night supervisor, and in 2001, he earned $59,081.00 as a CNC operator.

Patrick McJimsey, production manager of manufacturing at Stabil Drill,

explained that 95% of a CNC operator’s job is watching the machine, which requires

being in a standing position to stop the machine if anything goes wrong. Because of

Mr. Fruge’s employment record and ability, however, he is the only CNC operator

who is allowed a chair by his work station. Mr. McJimsey also testified that

Mr. Fruge is the only CNC operator who cannot perform the job of a manual

machinist as well. Because of these accommodations, Mr. McJimsey explained,

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Mr. Fruge would be the “first to go” should the oilfield experience a decline during

its many “ups and downs.”

Dr. John W. Grimes, a rehabilitation counselor, testified on behalf of Mr. Fruge

as to his future employment prospects. Dr. Grimes’ testing indicated that Mr. Fruge

was in the upper limits of the low average range, functioning at an eleventh grade

level in word recognition, a ninth grade level in spelling, and an eighth grade level

in math. Because of Mr. Fruge’s physical limitations, Dr. Grimes believed that he has

suffered a “loss of access” to certain positions that is yet to translate into a loss of

earnings, but that could significantly impact his income in the event of future medical

problems or economic fluctuations. Dr. Grimes considered Mr. Fruge fortunate that

his employer provided him with “accommodated employment” that, if maintained,

would not result in a loss of earnings. However, Dr. Grimes was concerned that,

should Mr. Fruge lose this “niche” in his field, he would either be thrown back into

a manual labor position that he could not perform or he would be at a disadvantage

in competing for supervisory jobs because of his youth. Dr. Grimes considered

Mr. Fruge particularly disadvantaged in the first scenario, should he apply for a

manual job either being at risk for further injury or requiring extensive assistance to

perform the work.

Nancy Favaloro, a rehabilitation counselor testifying for the defense, believed

that Mr. Fruge could not only perform his present job of a CNC operator without any

accommodations, but that he could return to manual machinist work as well. She

based this opinion on her own testing, which showed him to have an above average

aptitude in general intelligence, and on an FCE that indicated he could tolerate

medium to “medium heavy” work. She felt that Mr. Fruge’s earning capacity had

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increased since the accident because he acquired a new skill as a CNC operator that

is transferable to industries other than the oilfield.

James Sellers, who conducted the FCE on October 10, 2002, testified that its

results indicated that Mr. Fruge would meet the job descriptions of a CNC operator

and a machinist. However, he acknowledged that frequent or continuous lifting could

cause further damage of the disc and that Mr. Fruge should modify his activities

based upon his actual complaints. At the time of the FCE, Mr. Fruge still exhibited

restrictions in trunk and lumbar range of motion, with some hamstring tightness

bilaterally. David Hite also provided physical therapy services to Mr. Fruge at the

same clinic. He testified that Mr. Fruge had a positive response to therapy, although

he showed a limited tolerance for sustained forward bending. He considered the FCE

as a measure of what a person could do in two days at the clinic, from which certain

extrapolations were made. However, he testified that he would advise anyone with

a disc-related problem to avoid sustained, forward bending because of the stress it

creates on the discs of the low back, regardless of whether that position was

performed without complaints during testing.

Dr. Douglas Womack, an economist, agreed that Mr. Fruge would not suffer

a loss of earnings if he were able to keep his current job, which he understood to be

“sheltered employment.” His calculations addressed Mr. Fruge’s residual earning

capacity should he lose his present position and be forced to compete in the labor

market with restrictions as outlined by Dr. Grimes. Dr. Kenneth Boudreaux, who

testified for the defense, did not believe Mr. Fruge sustained any loss of earning

capacity, considering that he has acquired a new, transferable skill. Recognizing the

volatility of the oilfield, Dr. Boudreaux acknowledged that a significant decline in rig

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activity could result in industry-wide layoffs of 25-30%. However, Dr. Boudreaux

also pointed out that Mr. Fruge was able to maintain his present employment through

a downturn in oilfield activities in mid-2001, as shown by a declining rig count for

that time.

In finding that Mr. Fruge sustained a loss of earning capacity, the trial court

explained:

Because he has an uncontroverted herniated lumbar disc, with a
ten (10%) percent impairment, with a restriction of performing on
medium work, and with only a high school education, he has definitely
sustained a loss of earning capacity. Though, by the grace of Stabil
Drilling company it has not yet manifested itself yet, plaintiff would be
relegated to seeking employment with a high school education and a bad
back. . . . Before the accident, plaintiff was able to do heavy duty work
and the job of a machinist. And, considering his proven motivation and
skill, plaintiff could have easily moved up the economic ladder. Now,
he is stymied and at the mercy of Stabil Drilling and the oilfield . . . . But
for his good fortune with Stabil, plaintiff, after this accident, would have
been in a bind.

Loss of Earning Capacity

In arguing that the award for loss of earning capacity was in error, Defendants

challenge some of the trial court’s factual conclusions. They contend that the record

does not support the findings that Mr. Fruge has a residual disability and that his

employer is making special accommodations for him. They also contend that the

award was unwarranted given his increase in income and acquisition of new skills.

“A trial court’s award for loss of earning capacity is reviewed under the

manifest error standard of review.” Bellard v. S. Cent. Bell Tel. Co., 96-1426, p. 17

(La.App. 3 Cir. 8/27/97), 702 So.2d 695, 705, writ denied, 97-2415 (La. 12/12/97),

704 So.2d 1202. To recover for loss of earning capacity, the plaintiff must produce

medical evidence indicating with reasonable certainty that he has a residual disability

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causally related to the accident. Kennedy v. Columbus Am. Props., L.L.C. ex rel

Joseph Canizaro Interests, 99-940 (La.App. 4 Cir. 1/12/00), 751 So.2d 369.

Defendants point to the opinion of Ms. Favaloro and the results of the FCE in

arguing that Mr. Fruge has no residual disability because they indicate that he can still

perform the job of a machinist. However, the trial court’s conclusion to the contrary

is supported by the testimony of Dr. Blanda, Mr. Hite, and Mr. Sellers. Dr. Blanda

assigned Mr. Fruge a 10% permanent disability with instructions that he is not to

place too much stress on the damaged disc to prevent further injury. Mr. Fruge’s best

course of conduct, according to Dr. Blanda, was to continue in his current light-duty

employment. Mr. Hite strongly advised against sustained forward bending for anyone

with a disc problem, regardless of the FCE results, and Mr. Sellers advised Mr. Fruge

to modify his activities based upon his actual complaints. When this testimony is

considered with Mr. McJimsey’s description of a manual machinist’s work as a

“rough” twelve hours involving “a lot of stooping, lifting back and forth” and being

“slumped over most of the day,” we find no error in the trial court’s conclusion that

Mr. Fruge can no longer perform that job. Defendants also question whether Stabil

Drilling is presently providing special accommodations to Mr. Fruge, arguing that it

would be illogical for the employer to place its expensive machinery at risk.

However, the trial court heard and accepted as credible Mr. McJimsey’s testimony

that Mr. Fruge is treated differently from other CNC operators. We find no error in

this regard.

In Batiste v. New Hampshire Ins. Co., 94-1467, p. 3 (La.App. 3 Cir. 5/3/95),

657 So.2d 168, 170, writ denied, 95-1413 (La. 9/22/95), 660 So.2d 472 (citation

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omitted) (emphasis added), this court explained the relationship between income and

earning capacity as follows:

Loss of earning capacity is not the same as lost wages. Rather,
earning capacity refers to a person’s potential. Earning capacity is not
necessarily determined by actual loss. While the plaintiff’s earnings at
the time of the accident may be relevant, such figures are not necessarily
indicative of his past or future lost earning capacity. The plaintiff need
not be working or even in a certain profession to recover this type of
award. What is being compensated is the plaintiff’s lost ability to earn
a certain amount, and he may recover such damages even though he may
never have seen fit to take advantage of that capacity.

In determining whether a personal injury plaintiff is entitled to
recover for the loss of earning capacity, the trial court should consider
whether and how much plaintiff’s current condition disadvantages him
in the work force. The trial court should thus ask itself what plaintiff
might be able to have earned but for his injuries and what he may now
earn given his resulting condition.

“[W]hat the plaintiff earned before and after the injury does not constitute the

measure” of damages for loss of earning capacity. Hobgood v. Aucoin, 574 So.2d

344, 346 (La.1990) (citing Folse v. Fakouri, 371 So.2d 1120 (La.1979)). In

Hobgood, a plaintiff with a 10% permanent whole-body disability due to a back

injury was awarded $50,000.00 for loss of earning capacity, even though his income

had risen since his accident. Notwithstanding the increase in his business income, the

self-employed plaintiff was able to prove “that his ability to earn a living [was]

impaired by his back injury.” Id. at 347.

In Sallis v. City of Bossier City, 28,483 (La.App. 2 Cir. 9/25/96), 680 So.2d

1333, writ denied, 96-2599 (La. 12/13/96), 692 So.2d 1063, and writ denied, 96-2592

(La. 12/13/96), 692 So.2d 376, the plaintiff, who sustained a severe knee injury, was

able to return to his former job only because his employer “permanently

accommodated his disability.” Id. at 1341. (A member of a telephone-line repair

crew, the plaintiff could return to his unit, but only because he was allowed to work

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on the ground while the other crewmen did all the climbing.) His need for this

accommodation, however, took away any opportunity for transfer or promotion,

which in turn, greatly increased his chance of being laid off in his employer’s five-

year work-reduction plan. Even though the 30-year-old plaintiff returned to his

former job and was making more money, the second circuit recognized that he did

sustain a loss of earning capacity based upon his residual disability, his loss of

advancement opportunities, and the likelihood that his job was in jeopardy.

Accordingly, the court affirmed an award of $200,000.00 for these injuries.

In the present case, the trial court found that Mr. Fruge sustained an obvious

injury that prevented him from performing his former job and that permitted his

current employment only through the “grace” of a benevolent employer. The trial

court further found that Mr. Fruge was “at the mercy” of this employer, as well as the

volatile oilfield industry. We agree with the trial court that Mr. Fruge has sustained

a loss of earning capacity. Although he has yet to suffer a monetary loss, his injury

places him at a great disadvantage in the labor market. He can no longer perform the

work for which he was originally trained, and he can perform his new skill only with

accommodations from his present employer. He has demonstrated that he will have

great difficulty in competing for jobs, which in turn, would significantly impact his

future income, should his precarious position be altered. We find that Mr. Fruge is

entitled to compensation for this disadvantaged economic position.

In measuring such a loss, we stated in Batiste, 657 So.2d at 170 (emphasis

added):

The very nature of lost earning capacity makes it impossible to
measure the loss with any kind of mathematical certainty. The facts of
each case must take into account a variety of factors, including the
plaintiff’s condition prior to the accident, his work record prior to and

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after the accident, his previous earnings, the likelihood of his ability to
earn a certain amount but for the accident, the amount of work life
remaining, inflation, and the plaintiff’s employment opportunities before
and after the accident.

Mr. Fruge was a 21-year-old manual laborer with only a high-school education

at the time of the accident. Since the accident, he has acquired a new skill, but he is

unable to comply with the postural requirements of that job without modification by

his present employer. Although Defendants presented evidence that his new skill is

transferable to other industries, they have not shown whether those opportunities are

available in this geographic region. Dr. Womack estimated Mr. Fruge’s future work-

life expectancy from the date of trial to be 33.84 years. The trial court’s award of

$90,000.00 amounts to less than four years of his previous salary and is less than any

calculation submitted by Dr. Womack. We find no abuse of discretion in the award.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to Defendants-Appellants.

AFFIRMED.

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