Martin Petitjean II v. W. Petitjean Operating Co.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-256

MARTIN PETITJEAN, II

VERSUS

W. PETITJEAN OPERATING CO.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF ACADIA, NO. 01-05758
HONORABLE SHARON M. MORROW, PRESIDING

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SYLVIA R. COOKS
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Sylvia R. Cooks, and Billy H. Ezell,
Judges.

AFFIRMED.

Kenneth Privat
Privat & Regan
P.O. Drawer 688
Crowley, Louisiana 70527
(337) 783-7141
COUNSEL FOR APPELLANT:
Martin Petitjean, II

Jeffrey Warrens
Johnson, Stiltner, & Rahman
P.O. Box 98001
Baton Rouge, Louisiana 70898
(225) 231-0652
COUNSEL FOR APPELLEE:
W. Petitjean Operating Co.

COOKS, Judge.

STATEMENT OF THE CASE

Appellant, Martin Petitjean II, an attorney, was employed as the manager of W.

Petitjean Operating Company, a family partnership. Mr. Petitjean’s, duties included

supervising two secretaries, preparing lease and eviction notices, approving lease

agreements, transferring interests between the partners, signing checks, reading mail

and reviewing all bank statements. He also inspected rental property to determine

what work needed to be done. Although it was Mr. Petitjean’s responsibility to

oversee the upkeep of the partnership property, the physical repair and maintenance

work was contracted to Bill Lyons. Mr. Petitjean’s work load increased significantly

due to the unexpected suicide, a month earlier, of one of his long-time secretaries.

On December 15, 2000, the day of the incident, Mr. Petitjean drove out to

inspect certain rental properties and discovered one of Mr. Lyon’s employees cutting

branches from old magnolia tree which he considered a “family treasure and not to be

touched.” He became very angry and upset. He ran across the road and confronted

the employee. He then returned to his office and began working on a spreadsheet. He

noticed loss of vision in his left eye and numbness in his arm. He left the office and

drove eight miles to his home. His companion drove him to the hospital in Crowley.

Diagnostic tests determined Mr. Petitjean suffered a mild stroke. He filed a workers’

compensation claim for reimbursement of approximately $10,000 in medical expenses

he incurred. The workers’ compensation judge denied the claim stating:

I am very sorry, but I’m going to have to rule against Mr. Petitjean.
Based on the language of the statute 1021(7)(e) which speaks in terms of
physical work stress or exertion. I do find that Mr. Petitjean was subject
to work stress on the day of the incident, both the suicide of the secretary
and the trimming of the tree combined together to result in an unusual
degree of stress which lead to the incident. And I find that they were
both related to the work regardless of Mr. Petitjean’s reason for being in

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the neighborhood. . . .
However, the work stress has to be physical. I came across
something very similar in the Tomas, T-o-m-a-s versus Conoco case. In
that case like this one, I felt very clearly that the stress was work related;
however, the statute limits recovery for these injuries to physical work
stress only. . . . [T]herefore I feel I am compelled to rule that there was
no physical work stress. The work stress was emotional as opposed to
physical. And therefore the claim must be denied.

For the reasons assigned below, we affirm the decision of the workers’

compensation judge.

LAW AND DISCUSSION

Louisiana Revised Statute 23:1021(7)(e) provides in relevant part:

Heart-related or perivascular injuries. A heart-related or
perivascular injury, illness, or death shall not be considered a personal
injury by accident arising out of and in the course of employment and is
not compensable pursuant to this Chapter unless it is demonstrated by
clear and convincing evidence that:

(i) The physical work stress was extraordinary and unusual in
comparison to the stress or exertion experienced by the average employee
in that occupation, and

(ii) The physical work stress or exertion, and not some other
source of stress or preexisting condition, was the predominant and major
cause of the heart-related or perivascular injury, illness, or death.

(Emphasis added.)

Mr. Petitjean contends the physical act of running across the road and the angry

confrontation with Mr. Lyon’s employee is “extraordinary and unusual” physical work

stress when compared with the average office manager and should qualify him for

benefits.

In Hatcherson v. Diebold, Inc., 00-3263 (La. 5/15/01), 784 So.2d 1284, the

widow of a customer service manager was denied workers’ compensation death

benefits when her husband suffered a pulmonary thromboembolism while engaged in

the course and scope of his employment. The manager’s duties were administrative,

not physical, in nature and involved supervising other employees. The Louisiana

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Supreme Court denied benefits, citing La.R.S. 23:1021(7)(e)(i) and (ii), and stated:

This statute is significant in that it changed the law regarding such
injuries in three respects. Harold v. La Belle Maison Apartments, 94-
0889 (La. 10/17/94), 643 So.2d 752. First, it imposes a heightened
burden of proof–clear and convincing–which is an “intermediate”
standard falling somewhere between the ordinary preponderance of the
evidence civil standard and the beyond a reasonable doubt criminal
standard. Black’s Law Dictionary 227 (5th ed. 1979). Second, it requires
the physical work stress be compared to the stress experienced by the
average employee in that occupation as opposed to the stress of every day
life. Finally, “it heightens the required causal link between that work
stress and the heart injury by requiring the physical work stress to be the
predominant and major cause of the heart-related or perivascular injury.”
Harold, 94-0889 at p. 5, 643 So.2d at 755. Significantly, the statute
restricts such compensable perivascular injuries to those arising out of
physical, as opposed to mental, stress.

Id. at p.4-5, 1288.

In Tomas v. Conco Food Distrib., 97-426 (La.App. 3 Cir. 10/22/97), 702 So.2d

944, Mr. Tomas, Conco’s marketing director, suffered a stroke while attending a

Conco executive meeting. He sought recovery under the Workers’ Compensation Act.

The workers’ compensation judge denied benefits finding Mr. Tomas’s stroke resulted

from extraordinary and unusual work related mental stress as opposed to physical

stress and La.R.S. 23:1021(7)(e) limits recovery for injuries caused by physical stress

only. Mr. Tomas appealed contending this provision violated the Louisiana State

Constitution. This court affirmed the decision of the workers’ compensation judge

and found La.R.S. 23:1021(7)(e) does not violate the Louisiana State Constitution,

stating:

Prior to the 1989 amendments to La.R.S. 23:1021(7)(e), the Louisiana
Workers’ Compensation Act recognized the compensability of
perivascular or heart-related claims irrespective of the source of the job
stress (i.e., physical, mental or emotional). See Reid v. Gamb, Inc., 509
So.2d 995 (La.1987). However, the 1989 amendments were designed to
specifically overrule Reid and to require the employee to prove
extraordinary physical, not mental or emotional, job stress. See Votano
v. Tulane and Broad Exxon, Inc., 95-1064 (La.App. 4 Cir. 11/30/95), 667
So.2d 1117; and Debona v. Pawn, 94-430 (La.App. 3 Cir. 11/2/94), 649
So.2d 449, writ denied, 94-2878 (La.1/27/95), 650 So.2d 242.

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Id. at pp. 8-9, 948-49.

The workers’ compensation judge found Mr. Petitjean experienced on-the-job

stress triggered by his secretary’s suicide and the tree trimming incident. However,

she characterized the source of his stress as purely mental in nature and, although, she

found the job-related mental stress may very well have played a role in causing his

eventual stroke, she found La.R.S. 23:1021 (7)(e), as amended, limits recovery for

such injuries to those caused by physical work stress.

On appeal, Mr. Petitjean does not attack the judge’s legal reasoning; nor does

he question the constitutionality of the statute’s new physicality requirement. Instead,

Mr. Petitjean insists the facts show he endured physical stress which resulted from his

physical exertion in running across the road to confront the tree trimmer. However,

the “clear and convincing” burden imposed by the statute required Mr. Petitjean to

carry much more than he was apparently able to shoulder. In addition to establishing

that the work stress was physical in origin, La.R.S. 23:1021(7)(e)(ii) requires Mr.

Petitjean to show it was the “predominant and major cause of the heart-related or

perivascular injury.” Even if Mr. Petitjean presented evidence sufficient to show the

stroke he suffered was causally related to the physical exertion he engaged in prior to

its onset, the record does not contain any evidence which a reasonable fact-finder

could rely upon to find the physical stress he described was the “predominant and

major cause” of his stroke as oppose to some other cause such as a preexisting

condition or purely mental stress.

DECREE

Based on the foregoing review of the evidence, we affirm the decision of the

workers’ compensation judge. All costs of this appeal are assessed to Mr. Petitjean.

AFFIRMED.

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