Jerry Noe v. Basile Police Department

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-333

JERRY NOE

VERSUS

BASILE POLICE DEPARTMENT, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS‟ COMPENSATION - DISTRICT 4
PARISH OF ACADIA, NO. 10-05387
SHARON MORROW, WORKERS‟ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Phyllis M. Keaty, Judges.

REVERSED. JUDGMENT RENDERED AND REMANDED FOR FURTHER
PROCEEDINGS.

James L. Daniels
110 E. Kaliste Saloom Road, Suite 210
Lafayette, LA 70508
(337) 706-8931
COUNSEL FOR PLAINTIFF/APPELLANT:
Jerry Noe

Christopher R. Philipp
Post Office Box 2369
Lafayette, LA 70502-2369
(337) 235-9478
COUNSEL FOR DEFENDANTS/APPELLEES:
Risk Management, Inc.
Town of Basile Police Department

AMY, Judge.

After being involved in a foot chase, the claimant, a sergeant with the Basile

Police Department, had an episode of ventricular tachycardia. He was transported to

the emergency room and stabilized. Because of the high risk of recurrence, the

claimant subsequently had a defibrillator implanted. The claimant sought workers‟

compensation benefits, which were denied by his employer‟s workers‟ compensation

carrier. After a hearing, the workers‟ compensation judge found that this was an

uncompensable heart-related injury and dismissed the claimant‟s case. This appeal

follows. For the following reasons we reverse, render judgment, and remand for

further proceedings.

Factual and Procedural Background

The claimant, Jerry Noe, was a sergeant in the Basile Police Department.

According to the record, on February 9, 2010, Mr. Noe initiated a traffic stop after

receiving a tip that one of the vehicle‟s occupants, one Brandon Ceasar, was carrying

narcotics. When Mr. Ceasar attempted to flee, Mr. Noe and another officer, Rick

Brown, chased him on foot until they were able to subdue him. According to Mr.

Noe, after the foot chase he felt “out of breath.” When he was unable to get his breath

back, he went back to the police station.

An ambulance was called for Mr. Noe and he was transported to the emergency

room. According to Mr. Noe‟s medical records, he was diagnosed with ventricular

tachycardia. Mr. Noe was eventually cardioverted, or shocked, to a normal sinus

rhythm. Once Mr. Noe was stabilized, he was transferred to the Lafayette Heart

Hospital, where a cardiac catheterization revealed evidence of a previous heart attack,

including a large left ventricular aneurysm. 1 On the advice of his physicians, Mr. Noe

had a defibrillator implanted the next day. As a result of his condition, Mr. Noe‟s

1
Mr. Noe‟s aneurysm is also referred to in the record as an inferobasilar aneurysm.

cardiologist and his cardiac electrophysiologist have stated that Mr. Noe should not

return to police work.

Mr. Noe sought workers‟ compensation benefits, which were denied by the

employer‟s workers‟ compensation carrier on the basis that this was an uncovered

heart injury. Mr. Noe filed a disputed claim for compensation, seeking wage benefits,

medical benefits, a determination of his disability status, and subrogation to his

private insurer, Blue Cross / Blue Shield. After a hearing, the workers‟ compensation

judge found that the physical exertion from the foot chase triggered Mr. Noe‟s episode

of ventricular tachycardia, but that it did not cause the damage which required him to

have a defibrillator and which prevented him from returning to work. Further, the

workers‟ compensation judge found that the foot chase was “unusual but not

extraordinary” and was thus not a compensable heart-related injury as contemplated

by the workers‟ compensation statutes. Accordingly, the workers‟ compensation

judge dismissed Mr. Noe‟s claim.

Mr. Noe now appeals, asserting that:

I. The Trial Court committed reversible error in finding that Mr.
Noe‟s burden of proof under La. R.S. 23:1021(7)(e) [sic] requires
that Mr. Noe prove that his heart related injury was caused by
physical work, stress, or exertion which went “beyond what is
unusual”.

II. The Trial Court erred in holding that although Sgt. Noe‟s physical
exertion in chasing down a suspect increased the physical stress on
Sgt. Noe‟s heart[,] which “triggered the arrhythmia[,]” the exertion
did not cause his injury.

III. The Trial Court erred in not awarding medical expenses incurred
by Sgt. Noe and his private healthcare provider,
BlueCross/BlueShield of Louisiana and in not awarding Sgt. Noe
attorney‟s fees.

2

Discussion

Standard under La.R.S. 23:1021(8)(e)

In his first assignment of error, Mr. Noe contends that the workers‟

compensation judge erred in requiring him to prove that his heart-related injury was

caused by physical work, stress, or exertion which went “beyond what is unusual.” In

Evans v. Lungrin, 97-541, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735, the supreme court

discussed appellate review in cases where legal error is alleged, stating:

It is well-settled that a court of appeal may not set aside a trial
court‟s or a jury‟s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844
(La.1989). However, where one or more trial court legal errors interdict
the fact-finding process, the manifest error standard is no longer
applicable, and, if the record is otherwise complete, the appellate court
should make its own independent de novo review of the record and
determine a preponderance of the evidence. Ferrell v. Fireman’s Fund
Ins. Co., 94-1252 (La. 2/20/95); 650 So.2d 742, 747, rev’d in part, on
other grounds, 96-3028 (La. 7/1/97); 696 So.2d 569, reh’g denied, 96-
3028 (La. 9/19/97); 698 So.2d 1388. A legal error occurs when a trial
court applies incorrect principles of law and such errors are prejudicial.
See Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993). Legal errors
are prejudicial when they materially affect the outcome and deprive a
party of substantial rights. See Lasha, 625 So.2d at 1006. When such a
prejudicial error of law skews the trial court‟s finding of a material issue
of fact and causes it to pretermit other issues, the appellate court is
required, if it can, to render judgment on the record by applying the
correct law and determining the essential material facts de novo. Lasha,
625 So.2d at 1006.

Generally, an employee is entitled to compensation benefits if he proves by a

preponderance of the evidence that he incurred a personal injury from an accident

arising out of and in the course of his employment. La.R.S. 23:1031(A); Fontenot v.

Pyramid Alloys, Inc., 03-1743 (La.App. 3 Cir. 5/12/04), 872 So.2d 1269. However,

with regard to heart-related or perivascular injuries, the legislature altered those

requirements by enacting La.R.S. 23:1021(7)(e). That statute, which is currently

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renumbered as La.R.S. 23:1021(8)(e),2 states:

(e) 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.

The supreme court addressed the interpretation of this statute in Harold v. La

Belle Maison Apartments, 94-889 (La. 10/17/94), 643 So.2d 752. With regard to the

requirement that physical work stress be “extraordinary and unusual,” the supreme

court examined the definitions of those two words and concluded that they have

“similar meanings.” Id. at 755. Thus, the supreme court held that “these terms

require plaintiff to prove that her physical work stress went beyond what was usual,

regular or customary in relation to the average employee in that occupation.” Id.

In this case, the workers‟ compensation judge issued oral reasons for ruling.

Therein, the workers‟ compensation judge discussed the supreme court‟s opinion in

Harold and this court‟s ruling in Estate of St. André v. Frey, 96-711 (La.App. 3 Cir.

12/18/96), 685 So.2d 604, stating:

If you‟re going beyond what is usual, foot pursuit is beyond usual. If you
are going beyond what is unusual, foot pursuit is not extraordinary.

So there was a difference in the quotes, so I just pulled my
dictionary off my office shelf, which is a Webster‟s New College
Dictionary. It gives the first definition, “not according to the usual
custom or regular plan”; two, [“]going far beyond the ordinary degree,
measure limit, etcetera, very unusual, exceptional, remarkable.” This
would appear to indicate that the Estate of St. Andre quote by the Third
Circuit is the correct reading; that extraordinary requires going beyond

2
See, e.g., Smith v. Kinder Ret. & Rehab. Ctr., 06-1480 (La.App. 3 Cir. 4/4/07), 954 So.2d
365.
4

what is unusual. There is an additional element of intensity in its
unusualness and making that finding, I would have to say that the
activities Mr. Noe was engaged in were unusual but not extraordinary.

In Estate of St. André, 685 So.2d 604, a panel of this court found that the estate

of a farm worker was not entitled to compensation after the farm worker suffered a

fatal heart attack. In so doing, this court quoted Harold as defining “extraordinary” as

“beyond what is unusual.” (Emphasis added.) Estate of St. André, 685 So.2d at 606.

However, in Harold, the supreme court defined “extraordinary” as “going beyond

what is usual, regular, or customary.” (Emphasis added.) Harold, 643 So.2d at 755.

Further, other decisions from this circuit have found that “ʻ[o]rdinary‟ and „usual‟ are

synonyms, and „extraordinary‟ and „unusual‟ also mean about the same thing.

Webster‟s defines „extraordinary‟ as „going beyond what is usual, regular or

customary.‟” Johnson v. Petron, Inc., 617 So.2d 1358, 1361 (La.App. 3 Cir.), writ

denied, 623 So.2d 1338 (La.1993). See also City of Oakdale v. Smith, 00-1792

(La.App. 3 Cir. 5/2/01), 788 So.2d 507, writ denied, 01-1596 (La. 9/14/01), 796 So.2d

685.3

Thus, we find that the workers‟ compensation judge erred in requiring Mr. Noe

to prove that his physical work stress was “beyond unusual.” Accordingly, we review

the record de novo. Evans, 708 So.2d 731.

Entitlement to Benefits

Mr. Noe‟s amended disputed claim for compensation seeks wage benefits,

medical benefits, a determination of his disability status, and subrogation to his

private insurer, Blue Cross / Blue Shield.

Because Mr. Noe‟s alleged injury, ventricular tachycardia, is a heart-related

3
We note that our sister circuits have also made similar observations concerning the
definitions of “extraordinary and unusual.” See Brown v. Imperial Trading Co., 01-1889 (La.App. 4
Cir. 4/3/02), 815 So.2d 1084, writ denied, 02-1242 (La. 8/30/02), 823 So.2d 951; Gooden v. B E &
K Const., 33,457 (La.App. 2 Cir. 6/23/00), 764 So.2d 1206.

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injury, we must analyze his claim within the confines of La.R.S. 23:1021(8)(e).

Accordingly, Mr. Noe must first prove by clear and convincing evidence that his

“physical work stress went beyond what was usual, regular or customary in relation to

the average employee in that occupation.” Harold, 643 So.2d at 755. See also

La.R.S. 23:1021(8)(e). However, that requirement does not mean that “the job duty

being performed be a duty outside of the employee‟s job description.” City of

Oakdale, 788 So.2d at 512.4

In City of Oakdale, a police investigator‟s family sought death benefits after he

suffered a fatal cardiac event during a high-speed car chase. City of Oakdale, 788

So.2d 507. In upholding the workers‟ compensation judge‟s award of those benefits,

a panel of this court discussed whether the car chase resulted in physical work stress

that was extraordinary and unusual. Id. at 511. The record in that case revealed that

the investigator was not a “line officer” and was not normally expected to subdue or

chase suspects, whether on foot or in a car. Id. Further, there was testimony that a

high-speed chase, especially one of this length, was a rare occurrence, even for the

line officers. Id. Two police lieutenants testified to the rarity of such chases, with one

lieutenant testifying that in seven or eight years he had engaged in approximately

fifteen high speed car chases. Id. Accordingly, this court found that “the evidence

clearly and convincingly establishes that a high speed chase was „extraordinary and

unusual‟ physical work stress.” Id. at 512.

In this case, the record indicates that Mr. Noe was a sergeant in the Basile
4
See also Smith, 954 So.2d 365 (A panel of this court found that, where a certified nursing
assistant was required to singlehandedly transport a handicapped and disoriented nursing home
resident to a doctor‟s appointment and, after an incident in the waiting room, singlehandedly clean
excrement from the resident, this constituted extraordinary and unusual circumstances.); Richardson
v. City of New Orleans (Police Dept.), 03-2211 (La.App. 4 Cir. 12/1/04), 890 So.2d 661 (The
claimant, a brake inspector for the police department, suffered a heart attack while inspecting the air
brakes on a bus. Given testimony that air brakes were significantly more difficult to manipulate and
that claimant had only inspected the brakes on three other buses during his employment, the fourth
circuit found that the claimant met his burden of proving that the physical work stress was
extraordinary and unusual.).

6

Police Department. Mr. Noe‟s job description was “the senior patrol officer[,]” and

“[h]is duties are to provide proper supervision of patrolmen whenever he is ranking

officer, and to ensure the proper maintenance and upkeep of vehicles and equipment.”

Allen Ivory, the Chief of Police, testified that Mr. Noe did everything that a patrolman

does, in addition to supervisory duties. Chief Ivory testified that he had been the chief

of police for twenty-one years. According to his testimony, it was “not unusual” for

an officer to be involved in a foot chase. However, he also testified that he has been

involved in “more than ten” foot chases over the course of his law enforcement career.

Chief Ivory estimated that approximately ten percent of all arrestees resist arrest in

some fashion and that five percent of that ten percent flee on foot.

Mr. Noe testified that, to the best of his memory, only six people have fled on

foot during the nine years he was employed with the Police Department. He also

testified that he tries to cut people off with his police car rather than chase them on

foot. Mr. Noe estimated that, because of this, he has only had to chase two people on

foot during his employment with the Police Department. Further, Mr. Noe estimated

that one in one hundred people physically resist arrest. Officer Rick Brown, who was

also involved in the foot chase, testified that he has been employed with the Police

Department for two years. According to his testimony, Officer Brown has chased

suspects on foot approximately eight times since he began his employment with the

Police Department, although he conceded that that number was “just a guess.”

Officer Brown testified that he normally pursues suspects on foot and not in his police

car.

With regard to the foot chase, Mr. Noe testified that he pulled over Mr.

Ceasar‟s vehicle and ordered him out of the car. According to Mr. Noe, after he

informed Mr. Ceasar why they pulled him over, Mr. Ceasar “c[a]me unglued” and

started running. Mr. Noe noted that he was concerned that Mr. Ceasar was armed.
7

Mr. Noe chased Mr. Ceasar and attempted to use his Taser on him, to no avail.

However, according to the testimony, Officer Brown was able to spray Mr. Ceasar

with pepper spray and the two officers successfully subdued Mr. Ceasar at that point.

Mr. Noe stated that he first noticed his symptoms immediately after the chase.

Mr. Noe also testified that he paced off the length of the chase and estimated that it

was about 200 yards. However, Officer Brown testified that he later used a rolling

measuring device and determined that the distance was about 89 yards. Officer

Brown, when discussing his search for contraband that Mr. Ceasar was thought to

have thrown in the grass during the chase, also testified that there was “ice on the

ground” that night.

The evidence presented indicates that Mr. Noe, as sergeant, was a patrol officer

with additional supervisory duties. Unlike the police investigator in City of Oakdale,

788 So.2d 507, it was expected that he subdue or chase suspects when necessary.

However, even though Mr. Noe‟s job duties as the senior patrol officer included

chasing suspects on foot, the testimony in this case indicates that a foot chase is

“extraordinary and unusual in comparison to the stress or exertion experienced by the

average employee” in Mr. Noe‟s occupation as a sergeant in the Basile Police

Department. Further, we note that awards of workers‟ compensation benefits have

been upheld in cases where, even though the physical work stress was the result of

duties within the claimant‟s job description, the specific facts of each case indicated

that the physical work stress was extraordinary and unusual. See, e.g., City of

Oakdale, 788 So.2d 507; Kinder, 954 So.2d 365; Richardson, 890 So.2d 661.

The employer argues, in part, that because fleeing from the police is a type of

resisting arrest, that such activity is not extraordinary and unusual. The testimony

indicated that a maximum of ten to fifteen percent of arrestees physically resist arrest

in some fashion. However, even if we were to accept this distinction, the employer
8

did not present evidence that the physical work stress caused by other types of

resisting arrest was similar to or more physically stressful than that caused by chasing

a potentially armed suspect on foot. Accordingly, we find that, based on this record,

Mr. Noe proved by clear and convincing evidence that the physical work stress caused

by the foot chase “went beyond what was usual, regular or customary in relation to the

average employee in that occupation.” Harold, 643 So.2d at 755. See also City of

Oakdale, 788 So.2d 507.

The second element that Mr. Noe must prove by clear and convincing evidence

is that “[t]he 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[.]” La.R.S. 23:1021(8)(e)(ii).

The record indicates that Mr. Noe was diagnosed, in part, with ventricular

tachycardia. According to Mr. Noe‟s cardiac electrophysiologist, Dr. William Bailey,

ventricular tachycardia is a rapid heart rate in the ventricle. However, after Mr. Noe‟s

cardiologist, Dr. Christopher Mallavarapu, performed a cardiac catheterization, he

discovered that Mr. Noe had a large inferobasilar aneurysm. Dr. Mallavarapu testified

at his deposition that this was a portion of the heart wall muscle that had been

damaged by an old heart attack. In his deposition, Dr. Bailey explained that the

aneurysm was the “substrate” that allowed the episode of ventricular tachycardia to

occur. According to Dr. Bailey, although he could not definitively say that the

physical stress of chasing Mr. Ceasar caused Mr. Noe‟s arrhythmia, he testified that

exercise was one way to trigger an arrhythmia and that “[i]f you had to ask me if

running and chasing someone down triggered the arrhythmia, then I would say yes.”

Similarly, Dr. Mallavarapu testified that the aneurysm and the scar tissue were “the

big contributory factor” to the episode of ventricular tachycardia. Dr. Mallavarapu

also testified that it was highly likely that the stress of that night is what triggered Mr.
9

Noe‟s cardiac event.

The employer contends that Mr. Noe‟s preexisting aneurysm and coronary

artery disease are the predominant and major cause of his episode of ventricular

tachycardia. According to Mr. Noe, he had no knowledge of any previous cardiac

events. Mr. Noe‟s medical records indicate that he had previously been treated for

hypertension. Mr. Noe also testified that he was sufficiently physically fit to

participate in specialized S.W.A.T. training. The employer argues that Mr. Noe‟s

physicians could not definitively state that the physical exertion from the foot chase

triggered the arrhythmia. Further, they point out that the testimony was that the

arrhythmia could not have occurred absent Mr. Noe‟s underlying heart problems. In

Harold, the supreme court observed that recovery under La.R.S. 23:1021(8)(e) is not

precluded simply because the claimant has a previously unknown heart disease.

Harold, 643 So.2d 752. Further, the supreme court rejected the contention that a

claimant‟s case would fail “simply because the medical expert cannot definitively

state what the primary cause of the heart attack was.” Id. at 757. Of particular note,

Mr. Noe testified that he had never had any heart symptoms or complaints before this

incident and that he first noticed his symptoms immediately after the foot chase.

On his physicians‟ advice, Mr. Noe had a cardiac defibrillator implanted

because of the high risk that the arrhythmia would recur. Dr. Bailey also

recommended that Mr. Noe consult another doctor about having the aneurysm

resected, although the record indicates that Mr. Noe declined to have any further

surgeries. Dr. Bailey testified that, as of the time of his deposition, Mr. Noe‟s

defibrillator had not recorded any further arrhythmias. However, although Dr. Bobby

Deshotels, the doctor hired by the employer, felt that Mr. Noe could return to police

work, both Dr. Bailey and Dr. Mallavarapu testified at their depositions that Mr. Noe

10

should not return to police work. 5 Dr. Bailey in particular testified that Mr. Noe

would be able to return to work in a different occupation but that, were an episode to

occur while he was on duty, it could result in danger to Mr. Noe or other people.

Given this evidence, particularly the testimony of Dr. Bailey and Dr.

Mallavarapu, Mr. Noe proved by clear and convincing evidence that the predominant

and major cause of his episode of ventricular tachycardia was the physical stress of

the foot chase. Therefore, we find that Mr. Noe proved that he suffered a

compensable heart-related injury, more specifically, the episode of ventricular

tachycardia that he was treated for on February 10, 2010.6

Medical Expenses

Mr. Noe also contends that he is entitled to reimbursement for his medical

expenses. Having found that Mr. Noe incurred a compensable heart-related injury, we

find that he is entitled to reimbursement of his medical expenses. However, the

evidence submitted indicates that the only injury attributable to the foot chase was

ventricular tachycardia. The implantation of the defibrillator is attributable to his

underlying heart condition, e.g., the inferobasilar aneurysm. The record indicates that

it is the increased risk of arrhythmia due to the aneurysm that prevents Mr. Noe from

returning to police work, not his episode of ventricular tachycardia. Accordingly, we

find that the employer is only responsible for the treatment which resolved Mr. Noe‟s

episode of ventricular tachycardia. See Richardson, 890 So.2d 661. Therefore, we

remand to the workers‟ compensation court for a determination of which medical

expenses are a direct result of Mr. Noe‟s episode of ventricular tachycardia. In

making that determination, the workers‟ compensation judge is directed to consider

5
According to the record, Dr. Mallavarapu signed a work release slip in April of 2010.
However, he later testified that he recommends that Mr. Noe should not return to a job which would
require physical activity.
6
Although Mr. Noe testified that his symptoms began after the foot chase, which occurred
on February 9, 2010, the record indicates that an ambulance was not called until 12:43 a.m. on
February 10, 2010.
11

the amount of subrogation due to Blue Cross / Blue Shield pursuant to La.R.S.

23:1212 and La.R.S. 23:1205.

Attorney Fees

Mr. Noe contends that the workers‟ compensation judge erred in failing to

award him attorney fees. He also requests additional attorney fees for work

performed on appeal. Louisiana Revised Statutes 23:1201 provides for the imposition

of penalties and attorney fees; however, such an award is not warranted if the claim is

reasonably controverted. See Stenson v. Pat’s of Henderson Seafood, 11-1148

(La.App. 3 Cir. 2/1/12), 84 So.3d 661, writ denied, 12-504 (La. 4/13/12), 85 So.3d

1253. Attorney fees for additional work done on appeal is warranted when the appeal

requires additional work on the part of the claimant‟s attorney. Rivera v. M & R

Cable Contractors, Inc., 04-985 (La.App. 3 Cir. 12/15/04), 896 So.2d 90.

Typically, appellate attorney fees are requested in cases where the claimant

defends an employer‟s unsuccessful appeal. See, e.g., Ware v. Mitchell, 05-1289

(La.App. 3 Cir. 4/12/06), 928 So.2d 699; Strother v. Guinn Oilfield Servs., L.L.C., 03-

1310 (La.App. 3 Cir. 3/3/04), 867 So.2d 113. Further, “[g]enerally, when an award

for attorney‟s fees is granted at the trial level, additional attorney‟s fees are proper for

work done on appeal. This is to keep the appellate judgment consistent with the

underlying judgment.” Wilczewski v. Brookshire Grocery Store, 08-718, p. 18

(La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ denied, 09-456 (La. 4/13/09), 5

So.3d 170. In this case, although Mr. Noe successfully prosecuted his appeal, we find

that the employer reasonably controverted his claim and that Mr. Noe would not be

entitled to attorney fees under La.R.S. 23:1201. Accordingly, we decline to award

attorney fees for work done on appeal.

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DECREE

For the foregoing reasons, we reverse the judgment of the workers‟

compensation court. We render judgment in favor of the claimant, Jerry Noe, finding

that his episode of ventricular tachycardia, for which he was treated on February 10,

2010, was a compensable heart-related injury. We award him medical benefits

attributable to that episode. We remand to the Office of Workers‟ Compensation for a

determination of which medical expenses are attributable to the episode of ventricular

tachycardia. Costs of this proceeding are allocated to the employer, the Basile Police

Department.

REVERSED. JUDGMENT RENDERED AND REMANDED FOR FURTHER
PROCEEDINGS.

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