Donald Blaine Stelly v. Cna Insurance Co.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-379

DONALD BLAINE STELLY

VERSUS

CNA INSURANCE COMPANY AND
FRESENIUS MEDICAL CARE

************

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF ST. LANDRY, NO. 14-01819
ANTHONY PALERMO, WORKERS’ COMPENSATION JUDGE

************

JAMES T. GENOVESE
JUDGE

************

Court composed of Sylvia R. Cooks, James T. Genovese, and John E. Conery,
Judges.

Cooks, J., concurs and assigns written reasons.

AFFIRMED IN PART;
REVERSED IN PART;
AND RENDERED.

Howard C. Dejean
Law Office of Howard C. Dejean, APLC
111 North Court Street
Opelousas, Louisiana 70570
(337) 942-1149
COUNSEL FOR PLAINTIFF/APPELLANT
Donald Blaine Stelly

Roger A. Javier
Eric K. Buerger
The Javier Law Firm, LLC
2010 Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70163
(504) 599-8570
COUNSEL FOR DEFENDANTS/APPELLEES:
Fresenius Medical Care NA and
CNA Insurance Company

GENOVESE, Judge.

In this workers’ compensation case, Claimant, Donald Blaine Stelly, appeals

a judgment of the Office of Workers’ Compensation (OWC) in favor of his

employer, Fresenius Medical Care NA,1 and its insurer, CNA Insurance Company

(collectively Fresenius), denying his Motion for Summary Judgment,2 finding him

to be temporarily and totally disabled, and ordering that he submit to vocational

rehabilitation. For the reasons that follow, we affirm in part, reverse in part, and

render.

FACTS AND PROCEDURAL HISTORY

Mr. Stelly was injured in a work-related accident on September 10, 2005,

when he fell from a ladder. Consequently, Fresenius paid Mr. Stelly’s related

medical expenses and also paid him workers’ compensation indemnity benefits. In

connection with his injury, Mr. Stelly underwent vocational rehabilitation.

However, on March 19, 2014, Mr. Stelly filed a Disputed Claim for

Compensation (1008), claiming that there existed a bona-fide dispute as to whether

1
This entity is sometimes identified in the record as Fresenius Medical Care, Fresenius
Medical Care NA, and Fresenius Medical Care Holdings, Inc.
2
Relative to an appeal from the denial of a motion for summary judgment, this court
stated in Mackmer v. Estate of Angelle, 14-665, p. 1 n.2 (La.App. 3 Cir. 12/10/14), 155 So.3d
125, 126, writ denied, 15-69 (La. 4/2/15), -- So.3d --:

Generally, pursuant to La.Code Civ.P. art. 968, the denial of a motion for
summary judgment is an interlocutory judgment from which an appeal may not be
taken. However, when there is also an appeal from a final judgment, such as a
trial court’s grant of summary judgment, an appellate court may also review the
interlocutory ruling. See In re Succession of Carlton, 11-288 (La.App. 3 Cir.
10/5/11), 77 So.3d 989, writ denied, 11-2840 (La. 3/2/12), 84 So.3d 532.

See also Starkey v. Livingston Parish Council, 12-1787 (La.App. 1 Cir. 8/6/13), 122 So.3d 570
(finding it appropriate for the appellate court to review an OWC ruling denying the employee’s
motion for summary judgment when also reviewing an OWC judgment on the merits).

his current disability status was temporary total or permanent total. Also in dispute

was Fresenius’ entitlement to have an additional functional capacity evaluation

(FCE) performed. Mr. Stelly sought permanent and total disability status along

with penalties and attorney fees. Concomitant with the 1008, Mr. Stelly filed a

Motion for Determination of Permanent, Total Disability, Disallowance of

Demand for Functional Capacity Examination and Opposition to Motion to

Suspend Benefits.

Additionally, on May 12, 2014, Mr. Stelly filed a Motion for Summary

Judgment, contending “that there is no dispute as to any material fact, since his

treating physician, Dr. George R. Williams[,] and defendant’s physician, Dr. Thad

Broussard[,] have both declared that plaintiff, DONALD BLAINE STELLY, is

permanently and totally disabled[] and that he is entitled to judgment as a matter of

law.”3 The hearing on that motion was deferred to trial on the merits.

In response, Fresenius filed an answer generally denying the allegations

contained in Mr. Stelly’s 1008. It also filed a motion for the suspension of benefits

and a motion to compel an FCE. Additionally, Fresenius argued that Mr. Stelly’s

Motion for Summary Judgment was premature since Mr. Stelly failed to attend the

FCE and that material facts remained in dispute since the physicians disagreed on

whether Mr. Stelly was permanently and totally disabled.

Considering the motions filed, on July 1, 2014, the workers’ compensation

judge (WCJ) ordered that an independent medical examination (IME) be

performed by Dr. Clark Gunderson, an orthopedic surgeon. Dr. Gunderson’s

3
Dr. Williams and Dr. Broussard are both orthopedic surgeons.

2

opinion was sought on the issues of Mr. Stelly’s disability status and the need for

the additional FCE.4 The IME was performed on August 7, 2014.

Fresenius, thereafter, scheduled an FCE for September 26, 2014. Mr. Stelly

sought to quash the FCE, arguing that Fresenius was not entitled to an additional

FCE, having already had one performed by a medical professional of its choosing.

After the issue was submitted on briefs, the WCJ signed a judgment on September

24, 2014, denying Fresenius’ motion to compel an additional FCE.

Mr. Stelly subsequently re-urged his motion for summary judgment and

attached two additional items in support thereof, a 2009 FCE report by the Fontana

Center and the reports of Genex Services, the rehabilitation counseling service.

This motion was also deferred to the trial on the merits.

Following a trial on the merits, the WCJ: (1) denied Mr. Stelly’s Motion for

Summary Judgment; (2) found Mr. Stelly to be temporarily and totally disabled;

and, (3) ordered that Mr. Stelly submit to vocational rehabilitation. From said

judgment, Mr. Stelly appeals.

ASSIGNMENTS OF ERROR

Mr. Stelly presents the following assignments of error for our review on

appeal:

ASSIGNMENT OF ERROR #1

The [t]rial [c]ourt erred in failing to grant the Motion for
Summary Judgment, as the evidence uncontrovertedly establishes that
[Mr. Stelly] is physically disabled and has undergone a failed attempt
at rehabilitation[.]
ASSIGNMENT OF ERROR #2
The [t]rial [c]ourt erred in failing to recognize that [Mr. Stelly]
has already undergone a failed attempt at rehabilitation and in

4
Mr. Stelly had undergone an FCE at The Fontana Center in 2009.

3

applying a standard of “some physical activities” to the determination
of disability, rather than “to engage in any self-employment or
occupation for wages of any kind” under [La.R.S.] 23:1221(2).
ASSIGNMENT OF ERROR #3
The [t]rial [c]ourt erred in finding [Mr. Stelly] temporarily
totally disabled rather than permanently totally disabled under
[La.R.S.] 23:1221(2), as the evidence clearly shows that [he] is
permanently unable [“]to engage in any self-employment or
occupation for wages of any kind.[”]
LAW AND DISCUSSION

In his first assignment of error, Mr. Stelly contends that the WCJ erred in

denying his motion for summary judgment. We disagree.

In Hitchcock v. Heritage Manor Nursing Home, 05-1010, pp. 4-5, (La.App.

3 Cir. 2/1/06), 922 So.2d 764, 767, (emphasis added) this court, discussing motions

for summary judgment, stated:

In considering whether a genuine issue exists, courts
cannot consider the merits, make credibility
determinations, evaluate testimony or weigh evidence.

Pritchard v. American Freightways Corp., 37,962,
pp. 3-4 (La.App. 2 Cir. 12/10/03), 862 So.2d 476, 478
(emphasis added) (citations omitted). If in evaluating the
evidence, the court considered the merits, made
credibility determinations, evaluated testimony, or
weighed evidence, summary judgment must be reversed.

Strickland v. Doyle, 05-11, p. 4 (La.App. 3 Cir. 4/6/05), 899 So.2d
849, 852, writ denied, 05-1001 (La. 6/3/05), 903 So.2d 466.

In the instant matter, in order to determine the disability status of Mr. Stelly,

and considering the evidence presented, the WCJ would have been required to

evaluate testimony and to weigh the evidence, which is impermissible at the

summary judgment stage. Accordingly, genuine issues of material fact remained

so as to preclude the grant of summary judgment, and we affirm the WCJ’s denial

4

of same.

Both Mr. Stelly’s second and third assignments of error address the WCJ’s

failure to find that he is permanently and totally disabled.5 In Colwell v. Summit

Retirement Ctr., 12-1186, p. 3 (La.App. 3 Cir. 3/6/13), 128 So.3d 1029, 1032, writ

denied, 13-755 (La.App. 5/31/13), 118 So.3d 395, this court stated the following

with respect to an appellate review of an employee’s disability status:

The finding of disability within the framework of
the workers’ compensation law is a legal rather than a
purely medical determination. Therefore, the question of
disability must be determined by reference to the totality
of the evidence, including both lay and medical
testimony. Ultimately, the question of disability is a
question of fact, which cannot be reversed in the absence
of manifest error. Severio v. J.E. Merit Constructors,
Inc., 2002-0359, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d
465, 469.

Batiste v. Tenet Healthcare Corp., 09-1192, pp. 3-5 (La.App. 1 Cir.
2/12/10), 35 So.3d 352, 354-55, writ denied, 10-559 (La.5/7/10), 34
So.3d 864.

A finding of permanent total disability status requires a consideration of two

statutes, La.R.S. 23:1221 and La.R.S. 23:1226. Our supreme court has instructed

that when considering such claims, these statutes are to be read in pari materia.

Comeaux v. City of Crowley, 01-32 (La. 7/3/01), 793 So.2d 1215.

Louisiana Revised Statutes 23:1221(2) sets forth the burden of proof that an

5
Arguably, as phrased, assignment of error number two raises a legal question insomuch
as Mr. Stelly asserts that the WCJ applied the wrong “standard of ‘some physical activities’ to
the determination of disability,” when considering the provisions of [La.R.S.] 23:1221(2).
Erroneous application of a statute constitutes legal error, which would require this court to
conduct a de novo review of the record when considering this appeal. 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. We acknowledge the potential legal error raised by Mr. Stelly;
however, we find merit to assignments of error two and three even if the application of the more
stringent standard of review, the manifest error standard, is applied by this court.

5

employee seeking an award of permanent and total disability benefits must satisfy.

When, as in the instant matter, an employee is not currently employed, La.R.S.

23:1221(2)(c) (emphasis added) is the controlling statutory provision, which

provides as follows:

For purposes of Subparagraph (2)(a) of this Paragraph,
whenever the employee is not engaged in any employment or self-
employment as described in Subparagraph (2)(b) of this Paragraph,
compensation 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.

Louisiana Revised Statutes 23:1226(D) (emphasis added), provides in

relevant part:

Prior to the workers’ compensation judge adjudicating an
injured employee to be permanently and totally disabled, the workers’
compensation judge shall determine whether there is reasonable
probability that, with appropriate training or education, the injured
employee may be rehabilitated to the extent that such employee
can achieve suitable gainful employment and whether it is in the
best interest of such individual to undertake such training or
education.

The oral reasons for judgment of the WCJ succinctly and accurately

summarize the opinions of Dr. Williams, Dr. Broussard, and Dr. Gunderson

relative to Mr. Stelly’s disability as follows:

Dr. Broussard’s medical records contained the following
information: Dr. Broussard’s opinion is that Mr. Stelly is permanently
and totally disabled [due to] his back injury[] and subsequent surgery.
In addition, Dr. Broussard felt that he is not gainfully employable
regarding his lumber spine. Dr. George Williams found that Mr.
Stelly was permanently disabled and cannot work. In addition, he felt
he was completely and totally disabled and that he should avoid
bending, twisting and lifting and walking.

6

Dr. Clark Gunderson, who is an independent medical examiner,
found that Mr. Stelly was permanently and totally disabled from
gainful employment. He also stated, in his medical records, that he
believed that performing an FCE would be a waste of time, as he
believed the apparent parameters identified for physical restrictions
would be so low that he would not be employable.

....

Dr. Gunderson, in his deposition, stated that [he] did not think
that Mr. Stelly was going to be able to work full time, did not believe
that he was going to be able to walk. He did not think that he was
going to be able to lift more than five pounds.

Without detailing all of the additional medical problems of Mr. Stelly, the WCJ

concluded that “[a]ccording to all of the medical records, Mr. Stelly is

permanently and totally disabled.” (emphasis added).

After having concluded that the medical records establish that Mr. Stelly is

permanently and totally disabled, the WCJ cited La.R.S. 23:1226 and denied his

claim based upon the following:

There has been evidence put before the [c]ourt that Dr.
Gunderson would recommend a Functional Capacity Evaluation to
determine the exact restrictions that Mr. Stelly may have physically.
The [c]ourt also notes that while Mr. Stelly has been found to be
permanently and totally disabled by the physicians, according to Mr.
Stelly’s own testimony, he is capable of doing some physical activity.

Therefore, the [c]ourt finds at this time[] that there’s not been a
clear and convincing showing that Mr. Stelly is permanently and
totally disabled. The [c]ourt finds that Mr. Stelly is, at this point in
time, temporarily, totally disabled, and the [c]ourt further finds that
vocational rehabilitation is needed in order to determine if Mr. Stelly
can be trained in any manner that would allow him to find
employment.

On appeal, Mr. Stelly argues that in denying his claim for permanent total

disability status for the reasons set forth above, the WCJ failed to recognize his

prior attempts at rehabilitation which were unsuccessful. We agree.

7

We find the supreme court’s opinion of Comeaux, 793 So.2d 1215, to be

instructive. In Comeaux, our supreme court agreed with, and further expanded

upon, “the appellate court’s reliance on the unsuccessful rehabilitation attempt to

support [its] finding of permanently, totally disabled.” Id. at 1222. In the words

of our supreme court:

This case requires that we construe La.Rev.Stat. 23:1226,
mandating an attempt at rehabilitation before a finding of permanent
total disability is made, in pari materia with La.Rev.Stat. 23:1221(2),
defining permanently, totally disabled. Under the scenario presented
in this case, involving an employee who has unsuccessfully attempted
rehabilitation, it would defy logic and render La.Rev.Stat. 23:1226
meaningless to exclude from consideration the employee’s inability to
be educated or retrained in determining if such an employee is
permanently, totally disabled. . . .

Obviously, the Legislature intended, by imposing in
La.Rev.Stat. 23:1226 a mandate that the prospects of rehabilitation be
explored before an employee is classified as permanently, totally
disabled, that the results--negative as well as positive--of such
attempted rehabilitation be considered in ultimately determining
disability status. As plaintiff aptly points out, a contrary conclusion
would result in only paraplegics falling within the permanently, totally
disabled status. That the Legislature could not have so intended such
a result is evidenced by the separate statutory presumption set forth in
La.Rev.Stat. 23:1221(4)(j), which provides a presumption of
permanently, totally disabled for an employee that is paraplegic.

Accordingly, when, as in this case, such attempt at
rehabilitation fails, the employee’s lack of ability to be educated or
retrained cannot be ignored.

Id. Applying the foregoing reasoning, the supreme court found Mr. Comeaux,

fifty-five years of age, with sedentary physical restrictions, whose rehabilitation

efforts had failed, to be unemployable and held that he was permanently and totally

disabled.

In Smith v. Season’s Manufacturing, 01-890 (La.App. 3 Cir. 2/6/02), 815

So.2d 899, writ denied, 02-692 (La. 5/3/02), 815 So.2d 822, this court found a

8

forty-two year old employee, who had been unable to work for eight years due to a

work-related illness and who had undergone unsuccessful rehabilitative efforts to

be permanently and totally disabled. In Smith, Season’s Manufacturing argued

that Ms. Smith had “a number of highly marketable skills[,]” emphasizing that she

had a high school diploma and had operated her own business. Id. at 903.

However, this court opined that “we cannot overlook the fact that she has not

worked in eight years, she has not had an improvement in her medical condition,

and she has not earned any wages. Her physical condition continues to hinder her

ability to work.” Id. This court considered the rehabilitative efforts that had been

unsuccessful and the “possibility of additional medical problems,” and reasoned

that “we cannot continue to subject [Ms.] Smith to repeated tests and attempts at

rehabilitation on a trial and error basis which would only worsen her condition and

prolong the inevitable-permanently, totally disabled status.” Id. at 904.

Similar to the employee in Smith, Mr. Stelly’s unsuccessful rehabilitation

and his worsening medical conditions are germane to the issue of his disability

status. In Smith, the employer attempted rehabilitation on the employee; however,

as the court noted, “each attempt was unsuccessful.” Id. at 903. In this case, as in

Smith, although the employee was unable to return to the same work, the employer

contends that the employee remains “employable.” Id.

In addition to failing to recognize the failed rehabilitation attempts, Mr.

Stelly’s assignments of error also take issue with the WCJ’s reliance on Mr.

Stelly’s ability to perform “some physical activities” when determining the nature

of his disability, “rather than ‘to engage in any self-employment or occupation for

wages’ of any kind” under La.R.S. 23:1221(2)(a). We also find merit in this

contention. The ability of an employee to perform “some physical activities” does

9

not necessarily equate to that employee being capable of performing sufficient

activity so as to be able to “engage in any self-employment or occupation for

wages.” La.R.S. 23:1221(2). This is certainly true in Mr. Stelly’s case where he is

unable to stand,6 unable to sit for long periods of time, unable to tie his own shoes,

and cannot even attend to his personal hygienic needs without the aid of his wife.

Focusing on Mr. Stelly’s physical restrictions, Mr. Stelly and Fresenius both

rely on the report and deposition testimony of Dr. Gunderson in support of their

contentions, as did the WCJ. This court has reviewed the August 8, 2014 report of

Dr. Gunderson, which was done the day after the IME was performed, the

deposition of Dr. Gunderson, which was taken September 9, 2014, and the report

on the FCE that had been performed at the Fontana Center in 2009.

Mr. Stelly was unable to complete an entire day of the FCE when it was

performed in 2009. According to the FCE report, “the assessment was concluded

at this time as it is felt that it would not be conducive to competitive employment

with realistic pain complaints and demonstrated fatigue at this level.” The

occupational therapist noted that because Mr. Stelly was only able to complete six

and one-half hours, he was “unable to state conclusively whether this individual

would be able to sustain this work level consistently day after day[,]” noting that

“[i]t is not unusual for a client not to be able to sustain the level of work from day

one on subsequent days.” Based upon the six and one-half hour examination, Mr.

Stelly was found to be able to function at light duty work with restrictions

identified as occasional lifting of twenty pounds and frequent lifting of ten pounds,
6
In brief, Fresenius argues that “a claimant does not meet his burden of proof when
claimant is able to engage in some sort of employment, even though he may experience pain and
restrictions.” See Smith v. Dresser Indus., 08-1218 (La.App. 3 Cir. 4/1/09), 6 So.3d 961.
However, although Mr. Stelly did voice complaints of pain, he elaborated that his problem is not
limited to pain; rather, he also suffers from weakness in his legs. This is corroborated by the
testimony of his wife, who discussed incidents of him falling.

10

and he was limited to sitting and standing for thirty minutes. It was also noted that

his ability to stand and sit decreased during the day. The FCE report contains the

following notation:

By the end of the [six and one-half] hour assessment[,] Mr. Stelly
reported bilateral leg fatigue and leg pain. Mr. Stelly is able to stand /
stand and walk more early in the day. By the end of the day[,] his leg
fatigue increases to a point that standing and walking activities are
more difficult without increased time off his feet. After [four] hours
of functional activities[,] he would walk for approximately [seven]
minutes[,] then require short period of time off his feet before
resuming walk activity.

Mr. Stelly was also totally restricted from bending and ladder climbing, and had

“[s]evere [r]estriction” in several areas, including driving.

Undisputedly, Dr. Gunderson’s professional opinion, as worded in his

August 8, 2014 report, was that he “believe[d] that performing a functional

capacity evaluation would be a waste of time, as [he] believe[d] the parameters

identified for physical restrictions would be so low that he would not be

employable.” When questioned in his deposition, Dr. Gunderson stated that he had

“no problem with him having a functional capacity evaluation if the insurance

company wants to put up the money for [it,]” and to undergo vocational

rehabilitation, but “there just aren’t jobs out there like this.” Dr. Gunderson

testified that Mr. Stelly could perform “[s]ome sort of activity” and that he may be

employable “[i]n some fashion[;]”7 however, he did not think that Mr. Stelly would

be able to walk or to lift more than five pounds. Dr. Gunderson confirmed that the

opinions he expressed in his August 2014 written report were unchanged, and he

testified that Mr. Stelly’s physical limitations today were not any better than they

were in 2009, when the earlier FCE was performed. Finally, relative to the need

7
Dr. Gunderson explained that he meant “some part-time menial labor[.]”

11

for an FCE, Dr. Gunderson’s testimony was that he would prefer an FCE over his

imposition of work restrictions on Mr. Stelly. In short, although Dr. Gunderson

had no objections to an FCE, he felt that it “would be a waste of time.”

Although the WCJ denied Mr. Stelly’s claim for permanent and total

disability status and ultimately ordered Mr. Stelly to undergo vocational

rehabilitation, this court is unable to reconcile that ruling with the September 24,

2014 judgment rendered just prior to trial on October 6, 2014. Though the record

does not contain a transcript of a hearing on Fresenius’s motion to compel, nor the

WCJ’s reasons, the WCJ signed a judgment on September 24, 2014, “after

reviewing the exhibits, reviewing the record and evidence, reading the

memorandums, and applying the law thereto” denying the FCE. These rulings are

inconsistent. If the WCJ was of the opinion that Mr. Stelly should undergo

additional vocational rehabilitation, then he should have granted, as opposed to

denying, Fresenius’s motion to compel the FCE, which is a necessary component

of vocational rehabilitation.

Fresenius argues that the WCJ was correct in ruling that Mr. Stelly must

submit to vocational rehabilitation before being found to be permanently and

totally disabled. La.R.S. 23:1226(D). However, we agree with Mr. Stelly that

La.R.S. 23:1226(D) “does not simply announce a rule requiring blind application

of rehabilitation in every case.” The mandate under the statute requires a WCJ,

prior to finding permanent and total disability status, to “determine whether there is

reasonable probability that, with appropriate training or education, the injured

employee may be rehabilitated to the extent that such employee can achieve

suitable gainful employment and whether it is in the best interest of such

individual to undertake such training or education.” Id.

12

Focusing on Mr. Stelly’s ability to perform tasks such as mowing his grass

and being able to drive, and its belief that an FCE would demonstrate an ability to

perform some physical activities, Fresenius maintains that there exists a

“reasonable probability” that Mr. Stelly can be rehabilitated. According to Dr.

Gunderson, Mr. Stelly may be employable “[i]n some fashion[;]” however, this

does not amount to “gainful employment.” Based upon all the evidence presented,

we do not find that there is a reasonable probability that Mr. Stelly can be

rehabilitated to return to gainful employment, nor do we find that such

rehabilitative efforts are in Mr. Stelly’s best interest. See Smith, 815 So.2d 899.

At the time of trial, Mr. Stelly was a sixty-seven year old man who had a

significant medical history with the most severe injury being to his back. Mr.

Stelly had not been employed since 2006. He had two prior lumbar surgeries

before undergoing a lumbar fusion in 2006, fusing his lumbar spine from the L2 to

the S1 level. A surgical removal of the rods to provide Mr. Stelly with additional

mobility was considered in 2008. Dr. Daniel Kim, Professor and Director of

Spinal Neurosurgery at the Baylor College of Medicine, warned against such

modification. Mr. Stelly has a herniation at L1-2, which is nonsurgical, and has

neuropathy which causes him to fall and to drop things. Additionally, he has had

bilateral shoulder surgery and bilateral carpal tunnel surgery. Mr. Stelly is also

diabetic, has orthostatic hypotension, has a history of heart disease, and has been

advised that he needs total hip replacements. Dr. Williams, Dr. Broussard, and Dr.

Gunderson are all of the opinion that Mr. Stelly is permanently and totally

disabled.

Mr. Stelly was provided with vocational rehabilitation with Genex from

August 2009 through January 2011. He underwent an FCE at the Fontana Center

13

in 2009 and was unable to complete the testing. Mr. Stelly has twenty-three years

of work experience, all of which were with Fresenius, and has had two years of

training in industrial electronics. During the course of the vocational rehabilitation

efforts, no suitable employment was found for Mr. Stelly. In 2009, “[a]ll light duty

jobs were full[-]time jobs and outside Mr. Stelly’s educational and transferable

skills[,]” and, in 2011, “no job opportunities were located[.]” By all accounts, Mr.

Stelly was unemployable in 2009, and his physical condition has only deteriorated

since that time.

In addition to acknowledging past failed rehabilitation efforts, we find that

the evidence establishes that there is no reasonable probability that he can be

rehabilitated so as to return to gainful employment. We agree with Dr. Gunderson

that such efforts would be a “waste of time[,]” and we do not find that it would be

in his best interest. Although Mr. Stelly can do some activities for some period of

time, this is severely limited.

For the foregoing reasons, we conclude that while there was some evidence

supporting the WCJ’s findings, the totality of the evidence reveals that the WCJ

was clearly wrong. We hold that Mr. Stelly has met the burden of proof required

by La.R.S 23:1221(2) to establish his entitlement to permanent and total disability

status.

DECREE

For the reasons assigned, the judgment of the Office of Workers’

Compensation denying Donald Blaine Stelly’s Motion for Summary Judgment is

affirmed. The portion of the judgment of the Office of Workers’ Compensation

finding Donald Blaine Stelly to be temporarily and totally disabled, and ordering

that he submit to vocational rehabilitation, is reversed. Additionally, we render

14

judgment herein decreeing Donald Blaine Stelly to be permanently and totally

disabled. Costs of this appeal are assessed to Fresenius Medical Care NA and

CNA Insurance Company.

AFFIRMED IN PART;
REVERSED IN PART;
AND RENDERED.

15

THIRD CIRCUIT COURT OF APPEAL

STATE OF LOUISIANA

15-379

DONALD BLAINE STELLY

VERSUS

CNA INSURANCE COMPANY AND
FRESENIUS MEDICAL CARE

Cooks, J., Concurs:

I fully agree with the majority opinion in finding Stelly permanently and

totally disabled. In light of that finding I do not agree with the affirmance of the

Worker’s Compensation Judge’s (WCJ) ruling on the Motion for Summary

Judgment. The WCJ deferred his ruling on the Motion for Summary Judgment to

the merits. We find he ruled wrong on the merits. Because we find for Stelly, and

render judgment in his favor on the only issue raised in his Motion for Summary

Judgment, the correctness of the WCJ’s ruling on the Motion for Summary

Judgment is rendered moot.