David Landry v. City of Scott

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-47

DAVID LANDRY

VERSUS

CITY OF SCOTT

**********

APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 08-20215
SAM L. LOWERY, WORKERS COMPENSATION JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

Court composed of John D. Saunders, Jimmie C. Peters, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Christopher Richard Philipp
Attorney at Law
P. O. Box 2369
Lafayette, LA 70502-2369
(337) 235-9478
Counsel for Defendant/Appellant:
City of Scott

James Michael Stefanski
Edwards, Stefanski, et al.
P. O. Drawer 730
Crowley, LA 70527-0730
(337) 783-7000
Counsel for Plaintiff/Appellee:
David Landry

SAUNDERS, Judge.

This is a workers’ compensation case where the employee injured his shoulder

within the course and scope of his employment in April of 1998. Although the

employee had other medical conditions prior to the work accident, they did not

prevent him from working. After this work accident, the employee never returned to

work, and his condition deteriorated.

The workers’ compensation judge (WCJ) found that the employee’s various

medical diagnosis that rendered him unemployable were causally related to the

shoulder injury that occurred in April of 1998. Thus, the WCJ determined that the

employee was permanently and totally disabled under La.R.S. 23: 1221(2)(c). The

employer appealed, asserting two assignments of error. We find that the record

supports the WCJ’s judgment, and, therefore, affirm.

FACTS AND PROCEDURAL HISTORY:

David Landry (Landry) was employed by the City of Scott (Scott) on April 23,

1998. On that date, Landry was operating a backhoe. After having dug a hole with

the backhoe, Landry fell into the hole and injured his shoulder.

Landry underwent a surgical repair of his rotator cuff by Dr. Charles Olivier,

an orthopedic surgeon, and thereafter, both before and after the surgery, was treated

by Dr. Linda Oge, his general practitioner. Although gainfully employed prior to this

accident, Landry’s medical condition worsened to where he was determined by Social

Security to be totally disabled. He has been receiving Social Security benefits since

that determination, and his medical bills have been paid by his wife’s insurance.

Since the accident, Scott has paid Landry temporary, total disability benefits

and supplemental earnings benefits with one interruption of those benefits not

relevant to this proceeding. Scott terminated Landry’s benefits after 520 weeks of

paying benefits, alleging that it had fulfilled its obligation to Landry.

Landry then filed a disputed claim for workers’ compensation benefits,

contending that he was totally and permanently disabled under La.R.S. 23:1221(2)(c).

The matter was tried on June 24, 2009. The issue before the WCJ was whether

Landry’s other medical problems that arose or worsened following his accident were

causally related to the work injury suffered in April of 1998.

The WCJ ruled that Landry was totally and permanently disabled and that his

disability was due to medical conditions casually related to Landry’s initial shoulder

injury. Scott has appealed this judgment, alleging the following two assignments of

error:

ASSIGNMENTS OF ERROR:

1. The WCJ erred when it concluded that Landry proved, by clear and convincing
evidence, unaided by any presumption of disability, that his work accident
caused him to be permanently and totally disabled.

2. The WCJ erred when it considered Landry’s unrelated medical conditions in
determining the status of disability.

ASSIGNMENT OF ERROR NUMBERS ONE AND TWO:

In its first assignment of error, Scott contends that the WCJ erred in concluding

that Landry proved, by clear and convincing evidence, unaided by any presumption

of disability, that his work accident caused him to be permanently and totally

disabled. In its second assignment of error, Scott asserts that the WCJ erred in

considering Landry’s unrelated medical conditions in determining the status of

disability. Scott’s second assignment of error assumes that Landry’s medical

conditions are unrelated to his work injury. Whether the WCJ was proper in finding

that these medical conditions were related to Landry’s initial shoulder injury is

necessarily reviewed by this court in addressing Scott’s first assignment of error.

2

Therefore, as Scott did in its brief, we will address both assignments under a single

heading.

A WCJ’s determination of whether an employee is totally and permanently

disabled is a question of fact and, as such, is subject to the manifest error, clearly

wrong standard of review. Granger v. Nelson Logging, 96-223 (La.App. 3 Cir.

12/4/96), 685 So.2d 400. Louisiana Revised Statutes 23:1221(2)(c) states, in

pertinent part, the following:

[C]ompensation 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 any pain, notwithstanding the location or
availability of any such employment or self-employment.

In this case before us, the WCJ ruled that Landry had proved, without the aid

of a presumption of disability, by clear and convincing evidence, that he was

permanently, totally disabled. The WCJ based his ruling on a finding that Landry was

unemployable due to Landry’s weight gain, pain, depression, knee injury, memory

loss and other neurological symptoms that were causally related to his on-the-job

shoulder injury. Scott argues that this finding was in error, as it is unsupported by the

evidence. In order to be successful in this appeal, Scott must show that the WCJ was

unreasonable in reaching these conclusions.

After a thorough review of the record, we find sufficient evidence to uphold

the WCJ’s determination that Landry was “physically unable to engage in any

employment or self-employment.” La.R.S. 23:1221(2)(c). That evidence is the

testimony of Harris N. Rowzie, a licensed rehabilitation counselor who saw Landry

prior to trial. Rowzie testified to the following:

3

Q [I]t was your understanding that . . . [Landry’s] problems were
exacerbated, as put in [Dr. Oge’s] letter - - as per her letter, itself,
correct?

A Yeah, that’s my understanding.

Q Okay. And from a vocational standpoint, what does that mean?

A Well, it basically means that he’s . . . in such a place, he’s got so
many different conditions that I . . . can’t - - I was just trying to
put somebody to work. And I basically try to look at the Banks’
criteria, going down the seven criteria that they. . . had done: He
can’t go back to his past relevant work. He can’t find other work
in a . . . similar job with a different company. He’s basically,
because of all the other injuries, he’s not trainable. At the
eleventh . . . grade level, I think it would be facetious to try to put
him into - - into a work of his - - of - - of - -

[WCJ]:

Q So, he’s unemployable?

A - - something. So, I think he is unemployable.

[WCJ]:

Q There’s a difference in disabled and unemployable. Are you
saying he’s unemployable?

A I think he is. Yes, sir.

Given this testimony, we find no error by the WCJ in finding that Landry was

“unemployable.” Next, we must establish whether there exists a reasonable basis in

the record for the WCJ to find that Landry’s status as “unemployable” is due to his

work accident.

As we stated previously, our analysis of this issue subsumes the question

presented in Scott’s second assignment of error, i.e., that the WCJ erred in

considering Landry’s unrelated medical conditions in determining the status of

disability. This is so because should we find that Landry’s medical conditions are

related to his work injury, then the WCJ was proper in considering them. An opposite

4

finding would require that we find credence in Scott’s second assignment of error.

After reviewing the record and considering the applicable standard of review,

we find ample evidence to uphold the WCJ’s judgment. The testimony of Landry

provides part of our basis for affirming the WCJ. Landry testified on his behalf to the

following:

Q Counsel asked you questions about a - - gave you a list of medical
problems that you were being treated for. You did not - - those
medical problems that you were treated for prior to your accident
in April of 1998 never kept you from working; is that correct?

A No, sir, it sure didn’t.

Q And is it also correct that after the accident, all of your symptoms
and problems increased?

A Sure did. Got real bad [sic]. It’s bad now.

Q The way you are right now is not the way you were in April of
1998; is that correct?

A No, sir.

Dr. Linda Oge, Landry’s treating physician, was not deposed. Rather, the

parties stipulated that Dr. Oge’s testimony would consist of a letter signed by her.

This letter, dated May 14, 2009, was written by Rowzie. The letter’s contents follow:

This is to confirm our rehabilitation conference of 7 May 2009 in which
we discussed Mr. Landry’s physical condition.

If you recall, I stated that my reading of the file indicated he had
multiple diagnosis concurrent to a worker’s compensation claim in
which he injured his right shoulder and tore his rotator cuff. The
question was could the initial diagnosis along with pain be a
contributing cause to the other physical and mental diagnosis, which he
has, and also was the knee injury concomitant with the worker’s comp
injury. You stated that with his weight gain, his pain, and depression
also raised his blood pressure, as well as caused further problems of
sleep apnea, which caused further combination of problems with GERD
and possibly some memory loss and other neurological symptoms.

If this letter is accurately stated about this client, I would appreciate your

5

ascent by signing in the space provided. Please date this. Additionally,
if you feel there are other comments that need to be made and/or my
understanding of our meeting was incorrect or in error, please signify
what you feel was in error or needed some modification and write it in
the space provided.

This letter did not have any comments or suggestions entered by Dr. Oge.

Further, the letter was signed by Dr. Oge and dated May 26, 2009. Rowzie, when

questioned on the contents of the letter that he had written, testified to the following:

Q Now, you met with Dr. Oge, at her office, for thirty minutes on or
about May 7, 2009; is that correct?

A That’s correct.

....

Q Okay. And you apparently posed some hypothetical questions or
some questions to her concerning her opinion regarding . . . these
other problems, as it related to the shoulder?

A Right.

Q Okay. And, because I’m reading . . . from your letter where you
recapitulated her response, and it looks like you said that the
question you wanted her to address was . . . whether the initial
diagnosis, and I assume you’re referring to [Landry’s] shoulder;
is that right?

A That’s correct.

Q Okay. Whether his shoulder, along with pain, could be a
contributing cause to the other physical and mental diagnosis
which he has?

A That’s correct.

Q Okay. When you say “ physical and mental diagnosis that he
has,” you’re referring to the pre-existing conditions we went
through with Mr. Landry during his direct testimony, which was
fibromyalgia, the rheumatoid arthritis, the avascular necrosis, et
cetera?

A Correct.

Q Okay. And she told you that in her opinion, the way you phrased

6

the question, that his weight gain and his pain and his depression
raised his blood pressure?

A Yes.

Q Okay. And his weight gain, his pain and his depression caused
further problems with his sleep apnea?

A Correct.

Q And his pain and weight gain and depression caused problems
with gastroesophageal reflux disease?

A Correct. GERD.

Q GERD? And possibly some memory loss, those other - -

A Right.

Q What - - what was her scientific basis for arriving at that
conclusion?

A I think it was more of her experiential background dealing with
people who have been removed from the workforce. She’d seen
that when they were removed from the workforce that they would
have concomitant problems with high blood pressure, weight
gain, depression, those three, especially. With him, it’s - - its’s
like a slow downward spiral.

....

Q So, I’m just asking you, the scientific basis of Dr. Oge’s
conclusions. And your answer is, that she’s probably basing it on
her experience in treating David Landry?

A Correct.

Landry and Rowzie’s testimony, coupled with the letter signed by Dr. Oge,

provide a reasonable basis for the WCJ to find that Landry was permanently and

totally disabled under La.R.S. 23:1221(2)(c). Given this evidence, it is not

unreasonable for the WCJ’s to find that Landry’s weight gain, pain, depression, knee

injury, memory loss, and other neurological symptoms were causally related to his on-

the-job shoulder injury, and those conditions rendered Landry unemployable.

7

Accordingly, we find that Scott’s assignments of error both lack merit.

ANCILLARY MATTER:

Landry, in his answer to Scott’s appeal, requested attorney’s fees. We deny

this request.

Louisiana Revised Statute 23:1201(F) provides, in pertinent part:

Failure to provide payment in accordance with this Section . . .
shall result in the assessment of . . . reasonable attorney fees for each
disputed claim. . . . An award of penalties and attorney fees at any
hearing on the merits shall be res judicata as to any and all claims for
which penalties may be imposed under this Section which precedes the
date of the hearing. Penalties shall be assessed in the following manner:

(1) Such penalty and attorney fees shall be assessed against
either the employer or the insurer, depending upon fault.
No workers’ compensation insurance policy shall provide
that these sums shall be paid by the insurer if the workers’
compensation judge determines that the penalty and
attorney fees are to be paid by the employer rather than the
insurer.

(2) This Subsection shall not apply if the claim is
reasonably controverted or if such nonpayment results from
conditions over which the employer or insurer had no
control.

“The determination of whether an employer should be cast with penalties and

attorney fees is essentially a question of fact which will not be reversed absent

evidence of manifest error.” Ardoin v. Kipling Korner Grocery, 01-1596, p. 3

(La.App. 3 Cir. 4/17/02), 824 So.2d 371, 374 (citation omitted). When a judgment

is silent regarding a request for attorney’s fees, it must be construed as a denial of that

request. Desoto v. Desoto, 04-1248 (La.App. 3 Cir. 2/2/05), 893 So.2d 175.

Landry’s pre-trial statement listed “Pentalties and attorney’s fees for wrongful

termination of compensation benefits” under the heading “Issues to be Litigated at the

Hearing.” The WCJ’s judgment was silent regarding whether Landry was entitled to

8

attorney’s fees. Thus, the WCJ’s silence is equivalent to a judgment denying

Landry’s request.

In his answer to appeal, Landry states, “Counsel for David Landry prays for

attorney’s fees in the amount of SEVEN THOUSAND FIVE HUNDRED and NO/100

($7,500.00) DOLLARS; and that as thus amended the amended said judgment be

affirmed and the appellant be condemned to pay the costs.” It is indeterminate

whether Landry is requesting attorney’s fees for work done on appeal or requesting

that this court amend the WCJ’s judgment to award Landry attorney’s fees for the

case below. Regardless, we deny his request because the WCJ was not manifestly

erroneous in concluding that Scott reasonably controverted the case below, and we

find that the appeal by Scott, while unsuccessful, was also reasonably controverted.

CONCLUSION:

Scott raised two assignments of error, that the WCJ erred in concluding that

Landry proved, by clear and convincing evidence, unaided by any presumption of

disability, that his work accident caused him to be permanently and totally disabled

and that the WCJ erred in considering Landry’s unrelated medical conditions in

determining the status of disability. We found no merit to either assignment.

Additionally, Landry requested attorney’s fees. We deny this request. All

costs of this appeal are assessed to Scott.

AFFIRMED.

9