Eugene Rouly v. Perero Company, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-385

EUGENE ROULY

VERSUS

PERERO COMPANIES, INC. D/B/A DND LANDSCAPING
LUBA CASUALTY INSURANCE COMPANY

**********

APPEAL FROM THE
OFFICE OF WORKERS‘ COMPENSATION, DISTRICT 04
PARISH OF LAFAYETTE, NO. 13-04469(4)
HONORABLE SHARON MORROW, WORKERS‘ COMPENSATION JUDGE

**********

JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
Billy H. Ezell, Judges.

AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED.

Karl W. Bengston
Bengston Law Firm, LLC
P. O. Drawer 51147
Lafayette, LA 70505
(337) 291-9119
COUNSEL FOR PLAINTIFF/APPELLANT:
Eugene Rouly

H. Douglas Hunter
Gugliemo, Lopez, Tuttle, Hunter & Jarrell, L.L.P.
P. O. Drawer 1329
Opelousas, LA 70571
(337) 948-8201
COUNSEL FOR DEFENDANTS/APPELLEES:
Perero Companies, Inc. d/b/a DND Landscaping
LUBA Casualty Insurance Company

PETERS, J.

The defendants in this workers‘ compensation case, Perero Companies, Inc.,

d/b/a DND Landscaping (Perero), and LUBA Casualty Insurance Company

(LUBA), appeal a judgment rendered by the workers‘ compensation judge (WCJ),

finding the plaintiff, Eugene Rouly, to be totally and permanently disabled, and

entitled to indemnity benefits retroactive to May 14, 2013. Mr. Rouly answered

the appeal, seeking the reversal of a prior judgment rendered in favor of the

defendants on an exception of prescription which terminated the defendants‘

obligation to pay his medical expenses. For the following reasons, we affirm the

trial court judgment finding Mr. Rouly to be totally and permanently disabled and

reinstating his indemnity benefits; reverse the trial court judgment granting the

exception of prescription on the medical expenses issue; and remand the matter to

the Office of Workers‘ Compensation for further proceedings consistent with this

opinion.

DISCUSSION OF THE RECORD

On May 14, 2003, Mr. Rouly suffered a work-related accident when a dump

truck struck the excavator he was operating for his employer, Perero. Neither

Perero nor LUBA dispute the occurrence of the accident, but a 1990 work-related

accident involving Mr. Rouly complicated the evaluation of the injuries he

sustained in that accident.

In 1990, Mr. Rouly was employed by FMC Corporation (FMC) in South

America when a helicopter in which he was a passenger crashed in the Andes

Mountains. Mr. Rouly sustained burns to his body and injuries to his chest, neck,

lower back, hands and knees. Among the other medical treatment he received for

his injuries, he subsequently underwent an anterior cervical disk fusion with

plating at C4-5 and C5-6, a right carpel tunnel release, and arthroscopic surgeries

on both knees. At the time of his 2003 accident, he was still suffering from a post-
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traumatic stress disorder (PTSD) and chronic pain syndrome.

The matter now before us is not the first time that workers‘ compensation

obligations owed to Mr. Rouly were the subject of litigation. On May 1, 2006, the

various parties at interest in the 1990 and 2003 accidents entered into a workers‘
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compensation benefits consent judgment in two consolidated suits, which

provided the following:

1. EUGENE ROULY, Employee, was in the course and scope
of his employment with Perero Company, Inc.[] d/b/a DND
Landscape, Employer, on May 14, 2003 when he suffered an
accidental injury (the subject of Dkt. #03-04120);

2. As a result of that 2003 work-related injury, Eugene Rouly,
Employee, is entitled to workers‘ compensation disability benefits and
medical benefits, payable by Perero Company, Inc.[] d/b/a DND
Landscape, Employer.

3. At the time of his 2003 accident, Eugene Rouly was
receiving average weekly wages of $621.52, and he is entitled to
compensation at the rate of $414.35 per week. As of the date of the
parties‘ agreement, Perero Company, Inc.[] d/b/a DND Landscape,
Employer, had paid all past due and accrued workers‘ compensation
disability benefits.

4. Eugene Rouly is entitled to continuing medical care for
injuries suffered in the 2003 accident. The charges for this treatment,
as ordered by Dr. Robert Franklin, are payable by Perero Company,
Inc.[] d/b/a DND Landscape, Employer.

5. Eugene Rouly has received medical care for the 2003
accident from Drs. Robert Morrow, John Clifford and Robert
Franklin. He has had examinations or tests by Dr. James Domingue,
and University Medical Center. As of the date of the parties‘
agreement, the charges for the medical services from these providers
have either been paid or are authorized for payment by Perero
Company, Inc.[] d/b/a DND Landscape, Employer.

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PTSD was described in the record as an anxiety disorder caused by an individual‘s
psychological reaction to trauma they perceive as life-threatening.
2
The judgment arose from the consolidation of two pending matters: Rouly v. LUBA, et
al., docket number 03-04120, and Rouly v. FMC Corporation, docket number 05-06282.
2

6. Eugene Rouly suffered from Post Traumatic Stress Disorder
and Chronic Pain Syndrome caused by his accidental injury while in
the course and scope of his employment with FMC Corporation in
1990 (the subject of Dkt. #05-06282).

7. As a result of that 1990 work-related injury Eugene Rouly
is entitled to medical benefits only. Eugene Rouly, Employee, is
entitled to continuing medical care for Post Traumatic Stress Disorder
and Chronic Pain Syndrome, including pharmacy services, as ordered
by Dr. James Blackburn, payable by FMC Corporation, Employer.

8. Eugene Rouly has received medical treatment for the 1990
accident from Dr. James Blackburn. As of the date of the parties‘
agreement, the charges for the medical services from this provider
have either been paid or are authorized for payment by FMC
Corporation, Employer.

The parties expressly reserved for resolution by other
proceedings herein the claims of Eugene Rouly for penalties and
attorney fees, and the claims and counter-claims by and between
Perero Company and FMC Corporation seeking the reimbursement of
their payments between the parties. All other issues not agreed to
herein remain at issue between the parties. The Court has reviewed
the evidence previously submitted, heard the arguments of counsel,
and is in accord with the agreements of the parties as stated on the
record in open Court on January 25, 2006, therefore:

IT IS ORDERED ADJUDGED AND DECREED THAT
Perero Company, Inc.[] d/b/a DND Landscape, Employer, is liable
to Eugene Rouly, Employee, for workers‘ compensation disability
benefits at the rate of $414.35 per week and for the costs of his
medical treatment for his injuries related to the accident of 2003;

IT IS FURTHER ORDERED ADJUDGED AND DECREED
THAT FMC Corporation, Employer, is liable to Eugene Rouly,
Employee, for the costs of his medical treatment for Post Traumatic
Stress Syndrome and Chronic Pain Syndrome resulting from his
injuries of 1990; and

All other claims, defenses and disputes by or between the
parties are reserved to them for resolution [in] subsequent
proceedings.

After this consent judgment, Perero and LUBA continued paying weekly

benefits to Mr. Rouly until May 24, 2013, when they unilaterally stopped all

payments. On June 6, 2013, Mr. Rouly filed the matter before us—a disputed

claim for workers compensation benefits against Perero and LUBA. In that

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pleading, Mr. Rouly sought reinstatement of his indemnity and medical benefits, as

well as penalties, and attorney fees from Perero and LUBA based on their

termination of his indemnity benefits and their refusal to reimburse his medical-

related travel expenses.

In their answer to the filed claim, Perero and LUBA questioned the extent of

Mr. Rouly‘s disability and asserted that his claim for medical benefits had

prescribed. Thereafter, Perero and LUBA filed exceptions of res judicata and

prescription, a motion in limine, and/or a motion for summary judgment based on

the May 1, 2006 partial judgment.

Following a hearing on the preliminary issues, the WCJ sustained the

exception of prescription as to all of Mr. Rouly‘s claims for medical benefits, but

denied the exception of res judicata and the other motions. This court rejected an

application for supervisory writs filed by Perero and LUBA addressing that part of

the WCJ‘s rulings rendered in Mr. Rouly‘s favor. Rouly v. Perero Co., Inc. d/b/a

DND Landscape, 15-71 (La.App. 3 Cir. 3/10/15) (unpublished writ).

At the beginning of the September 2, 2015 trial on the merits, the parties

stipulated that the only issue at trial was whether Mr. Rouly was totally and

permanently disabled. Perero and LUBA further stipulated that Mr. Rouly had

already been paid 520 weeks of workers‘ compensation benefits. After completion

of the evidentiary phase of the trial, the WCJ rendered judgment finding that Mr.

Rouly had established by clear and convincing evidence that the injuries he

sustained in the May 14, 2003 accident rendered him totally and permanently

disabled. In reaching that decision, the WCJ concluded that the 2003 work-related

accident caused an aggravation of Mr. Rouly‘s preexisting PTSD and chronic pain

syndrome. The WCJ‘s November 9, 2015 written judgment also ordered the

reinstatement of Mr. Rouly‘s indemnity benefits, at a weekly rate of $414.35, and
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awarded legal interest on all past-due payments.

Perero and LUBA perfected this appeal, asserting that the WCJ erred in

awarding Mr. Rouly total and permanent disability benefits. Mr. Rouly answered

the appeal, seeking a reversal of the WCJ‘s grant of the exception of prescription.

OPINION

A finding of disability is a legal determination reached by the trier of fact

upon consideration of a totality of the evidence, both lay and medical. Thus, a

disability finding is a question of fact, which cannot be reversed absent manifest

error. Batiste v. Tenet Healthcare Corp., 09-1192 (La.App. 1 Cir. 2/12/10), 35

So.3d 352, writ denied, 10-559 (La. 5/7/10), 34 So.3d 864.

A finding of total and permanent disability is only possible if an employee is

unemployed and proves, ―by clear and convincing evidence, unaided by any

presumption of disability,‖ that he ―is physically unable to engage in any

employment or self-employment[.]‖ La.R.S. 23:1221(2)(c); Conerly v. Triad

Nitrogen, 12-2032 (La.App. 1 Cir. 8/14/13), 123 So.3d 273, writs denied, 13-2441,

13-2515 (La. 1/10/14), 130 So.3d 329, 330. Workers‘ compensation benefits

awarded based on a finding of temporary total disability are payable only as long

as the extent of an employee‘s disability is unknown. La.R.S. 23:1221(1)(d).

Once it is known, the payment of temporary total disability benefits ceases.

Additionally, workers‘ compensation benefits awarded as supplemental earnings

benefits to an employee unable to ninety percent or more of his pre-injury wages,

are terminated after 520 weeks. La.R.S. 23:1221(3)(d).

In Comeaux v. City of Crowley, 01-32, p. 8 (La. 7/3/01), 793 So.2d 1215,

1220 (quoting H. Alston Johnson, Bound in Shallows and Miseries: The 1983

Amendments to the Workers’ Compensation Statute, 44 La.L.Rev. 669, 686

(1984)), the supreme court noted:
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The underscored, heightened standards were enacted in 1983 as
part of the legislation tightening the scope of permanently, totally
disabled status. ―These are difficult burdens for the worker, and the
changes clearly reflect the intent that awards for total and permanent
disability should be very unusual and that maximum awards for SEB
for those ‗able to work‘ should also be rare.‖

The supreme court classified the clear and convincing burden of proof as ―an

‗intermediate‘ standard falling somewhere between the ordinary preponderance of

the evidence civil standard and the beyond a reasonable doubt criminal standard.‖

Id. It further pointed out that a finding of total and permanent disability is

improper absent a prior determination that the injured employee is incapable of

being vocationally rehabilitated for any other position pursuant to La.R.S.

23:1226(D), which provides:

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.

Accordingly, the supreme court held that La.R.S. 23:1221(2)(c) and La.R.S.

23:1226(D) must be read in pari materia before an employee may be classified as

permanently and totally disabled. Id. Thus, the burden in this matter is on Mr.

Rouly to establish be clear and convincing evidence that he is totally disabled, and

that there is no reasonable probability that, even ―with appropriate training or

education,‖ he cannot be rehabilitated to the extent that he ―can achieve suitable

gainful employment[.]‖ La.R.S. 23:1226(D). We find that the evidence supports

the finding of the WCJ in this regard.

The record reflects that when Mr. Rouly, who was sixty-years-old at the

time of the trial on the merits, began his employment with Perero he was still

suffering from the injuries he sustained in the 1990 helicopter accident. Those

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injuries included, but were not limited to, PTSD and chronic pain syndrome for

which he was receiving treatment from Dr. James H. Blackburn, a Lafayette,

Louisiana psychiatrist.

Seven days after the May 14, 2003 accident, LUBA caused Mr. Rouly to be

examined by Dr. Thomas J. Montgomery, a Lafayette, Louisiana orthopedic

surgeon. After obtaining a history from Mr. Rouly and after examining him, the

doctor concluded that Mr. Rouly had suffered either a cervical or a thoracic strain

as a result of the May 14, 2003 accident. Based on his findings, he concluded that

Mr. Rouly could perform sedentary work but restricted him from returning to work

pending further evaluation by Dr. John R. Clifford, a Baton Rouge, Louisiana

neurosurgeon who had treated Mr. Rouly after the 1990 accident. Dr. Montgomery

testified that he was also aware that Mr. Rouly was under pain management care

from Dr. Blackburn and he took multiple medications to control the problems he

had experienced since the 1990 accident. Dr. Montgomery also testified that Mr.

Rouly told him that his previous condition was aggravated by the May 14, 2003

accident.

Dr. Blackburn had originally begun treating Mr. Rouly for PTSD in July of
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1999, and continued treating him after the 2003 accident. Initially, Dr.

Blackburn‘s goal was to treat Mr. Rouly‘s PTSD and the accompanying pain

caused by his anxiety and stress of that condition. It was only later that the doctor

expanded his treatment to include Mr. Rouly‘s chronic pain syndrome. The

treatment of these two conditions ultimately combined into a pain management

program. By the time of trial in this matter, Dr. Blackburn had seen Mr. Rouly

professionally eighty times. That long-time professional relationship began with

3
Dr. Blackburn testified that he took over Mr. Rouly‘s treatment from another
psychiatrist who had treated him since the 1990 accident.
7

Dr. Blackburn recognizing the strong desire in his patient to return to the work

force. In fact, the record before us makes it very clear that Mr. Rouly was not the

type of person to shy away from work.

Despite having less than a ninth grade education, and despite failing the

GED three times, Mr. Rouly always seemed to be able to find employment. Before

going to work for FMC, he had been employed in the oil field in various positions

including roustabout, floorhand, derrickman, driller, tool pusher, and wire line

operator. Additionally, at other times, he operated heavy equipment and became a

tack welder. During his off-time with FMC, he assisted his farmer relatives in

their endeavors; and at the time of his 1990 accident, he had reached the position

of senior service coordinator with FMC. That position carried with it management

responsibilities in some of FMC‘s activities.

Even after his helicopter accident, Mr. Rouly worked through his injuries

and continued to find employment where he could. In September of 1999, after his

attempts to start a private enterprise failed for lack of business, he began working
4
for the Iberia Parish Sheriff‘s Office as a driver transporting prisoners at $6.00 per

hour. In conjunction with that employment, he immediately became involved in a

training program in an effort to become certified in other aspects of law

enforcement. However, the minimum income being produced and the stress

associated with being around criminals took its toll, and he left employment with

the Sheriff‘s Office in February of 2000.

In that same month, he found employment operating heavy equipment for

Iberia Parish. He quit his position with Iberia Parish in May of 2001 because of

the pain associated with operating of heavy equipment, but soon thereafter, he

4
The Sheriff‘s Office apparently accommodated Mr. Rouly‘s medication needs in
performing the duties of his position.
8

obtained a similar position with Perero through the intercession of a friend. This

employment lasted until his May 14, 2003 accident.

Mr. Rouly‘s attempts at these heavy-duty employment opportunities while

recovering from his injuries sustained in the 1990 accident resulted in significant

absenteeism on his part, but given his education and work skills, there was no less

strenuous employment available to him. Before his May 14, 2003 accident, he

often confessed to Dr. Blackburn that he did not know how long he could continue

in his line of work, and he told the doctor that his neck locked up on him when he

operated a specific type of heavy equipment. Additionally, he confessed to Dr.

Blackburn that on occasion he would revert to using a cane to ambulate.

Dr. Blackburn did not necessarily agree with Mr. Rouly‘s determination to

return to heavy-duty employment, but he helped him through the pain with

medication. However, he opined that the right shoulder injury sustained in the

May 14, 2003 accident increased Mr. Rouly‘s existing pain problem and severely

impaired his ability to function. Additionally, Dr. Blackburn opined that the May

14, 2003 accident aggravated the prior cervical and thoracic spine injuries Mr.

Rouly sustained in the 1990 accident, thereby accelerating the progressive

deterioration those injuries caused him.

Mr. Rouly had not returned to any form of employment after the May 14,

2003 accident, and Dr. Blackburn described his patient‘s condition at the time of

trial to be that of severe depression, concomitant with his pain disorder and,

especially his inability to work. According to Dr. Blackburn, because of Mr.

Rouly‘s strong work ethic, the depravation of his ability to return to work was

devastating to his preexisting PTSD and chronic pain syndrome conditions. He

testified that Mr. Rouly‘s condition at the time of the trial required pain medication

in amounts approximately four times the dosage he was taking before the May 14,
9

2003 accident; and included oxycodone for pain and Remeron, valium, and Lyrica

for depression and anxiety. Additionally, Dr. Blackburn prescribed atypical

antipsychotic medications based on Mr. Rouly‘s level of emotional turmoil and

distress immediately after the May 14, 2003 accident, and he tried different

antidepressants and mood stabilizers in order to find medications that worked on

him. None of these medications effectively improved Mr. Rouly‘s emotional

distress, depression, or physical pain. Given all of his findings, Dr. Blackburn was

of the opinion that Mr. Rouly was totally and permanently disabled. In his

opinion, no rehabilitation program exists that would enable Mr. Rouly to

sufficiently improve to a level where he could return to any type of gainful

employment. In fact, he opined that if Mr. Rouly attempted to start any such

program, it would probably increase his levels of frustration and despair.

Shortly after the May 14, 2003 accident, and because he was fearful of

additional injury to his cervical spine, Mr. Rouly contacted Dr. Clifford who had

performed the C4-5 and C5-6 cervical fusion procedure on him in August of 1997,

for evaluation of the effect of the accident on the fusion. Dr. Clifford ultimately

concluded that the May 14, 2003 accident caused no damage to the cervical fusion.

However, MRIs of the cervical, lumbar, and thoracic spine, and an MRI of the

right shoulder taken at Dr. Clifford‘s instruction caused him to conclude that

degenerative changes existed above and below the cervical fusion as well as in the

lumbar and thoracic spine; and that Mr. Rouly had suffered a partial tear of the

right shoulder rotator cuff, with degenerative changes in the supporting joint. Dr.

Clifford ultimately concluded that the rotator cuff tear would be better addressed

by an orthopedic surgeon and, thereafter, Mr. Rouly sought treatment from Dr.

Robert L. Morrow, a Lafayette, Louisiana orthopedic surgeon.

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Dr. Morrow saw Mr. Rouly on October 30, 2003, and the patient‘s main

complaints were that of shoulder pain and numbness and tingling in the right hand.

He reviewed the September 23, 2003 MRI ordered by Dr. Clifford and confirmed

the finding of a tear at the lateral edge of the right acromion and a possible brachial

plexus neuropathy versus an ulnar nerve compromise at the elbow or wrist. A

subsequent EMC/nerve conduction study revealed no evidence of radiculopathy,

but indicated lesions of the right median nerve at the wrist and at the right ulnar

nerve at the wrist and elbow. Accordingly, Dr. Morrow diagnosed Mr. Rouly as

suffering from a right rotator cuff tear and a neural problem at either his right

elbow or wrist.

Dr. Morrow related Mr. Rouly‘s shoulder injury to the May 14, 2003

accident, but concluded that the possible neural problem with the right elbow or

wrist was more likely than not a result of inactivity and swelling of the upper

extremity resulting from Mr. Rouly‘s immobilization of the right arm. Dr. Morrow

recommended that Mr. Rouly undergo surgery to repair the rotator cuff damage

after strengthening the shoulder through physical therapy. Depending on Mr.

Rouly‘s functioning after surgery, he would restrict him from overhead repetitive

activities or heavy lifting, although he expressed the opinion that Mr. Rouly could

operate heavy equipment once he reached maximum medical improvement (MMI)

from the shoulder surgery. He expected Mr. Rouly to reach MMI within six

months to one year from the surgery. He last saw Mr. Rouly on December 23,

2003.

Approximately three years after the May 14, 2003 accident, Mr. Rouly met

with Elier Diaz, a vocational rehabilitation counselor hired by Perero and LUBA.

However, Mr. Diaz was unable to produce any available job or training program

for Mr. Rouly. A March 28, 2007 report prepared by Mr. Diaz states that he
11

performed labor market surveys on behalf of Mr. Rouly on February 22, February

27, March 9, and March 13 of 2007, and of the thirty-four jobs identified in those
5
surveys, some positions exceeded Mr. Rouly‘s restrictions, others were not hiring

at the time, and still others required a call back. According to the report, LUBA

instructed him to close Mr. Rouly‘s file on March 26, 2007.

An April 16, 2007 independent medical examination by Dr. Randal D. Lea,

was limited to Mr. Rouly‘s right shoulder despite his complaints of widespread

pain. Dr. Lea noted that Mr. Rouly exhibited signs of right shoulder pathology and

that an MRI of the shoulder suggested a partial rotator cuff tear with

acromioclavicular joint degenerative changes and cuff tendonitis. He

recommended that the shoulder problem first be treated with injections, and only if

this treatment provided temporary relief would he obtain an MRI of the shoulder to

determine whether arthroscopic surgery and decompression of the shoulder was an

appropriate remedy for Mr. Rouly‘s condition. If the injections provided total

relief, surgical intervention would not be required; and if the injections provided no

relief at all, this would be evidence that the pathology of the pain was something

other than the shoulder. Given Mr. Rouly‘s overall clinical profile, Dr. Lea felt

that additional therapy would provide little benefit, and absent injection relief or

interventional surgery, Mr. Rouly would simply have to learn to live with the

discomfort in his right shoulder.

Dr. Lea agreed with Dr. Clifford that the right shoulder injury would not

preclude Mr. Rouly from performing sedentary work. With regard to that type of

activity, Dr. Lea proposed imposing the following restrictions: (1) lift ten pounds

intermittently for ten percent of the work day; lift frequently five pounds or less;

5
The identified jobs included positions with answering services, taxi companies, and
check cashing companies.
12

limit overhead lifting to ten to fifteen percent of the work day, intermittently; no

overhead lifting of five to seven pounds; push, pull, and carry at the same exertion

levels; reach through midrange thirty to fifty percent of the work day,

intermittently; reach full range twenty percent of the work day, intermittently;

bend, twist, turn, kneel, and stoop at pre-accident levels; no climbing overhead

ladders, but can climb stairs with rails; and sit approximately one and one-half

hours, stand one hour, and walk intermittently up to one hour at a time.

Dr. Lea noted in his report that he thought Mr. Rouly‘s functional level

would improve if he had the injections and an uncomplicated right shoulder

surgery. However, he opined that because Mr. Rouly thought of himself as being

disabled and because of his skewed Wahler Physical Symptoms Inventory and

ADL survey, ―[t]his does suggest that it may be difficult to anticipate that Mr.

Rouly will ever return to any type of work regardless of what is done medically.‖

He placed Mr. Rouly at MMI for his right parascapular injury twelve to eighteen

months post-injury and at MMI for his right acromioclavicular joint twelve months

post-injury or, if he undergoes surgery, four to six months post-surgery barring

complications.

At the close of the evidentiary phase of the litigation, the WCJ issued oral

reasons for judgment finding that Mr. Rouly proved by clear and convincing

evidence that the May 14, 2003 work accident aggravated his preexisting PTSD

and chronic pain syndrome, and that he was totally and permanently disabled as a

result of the injuries he sustained in the accident. In reaching that conclusion, the

WCJ stated the following:

Let me be clear. I am relying on Dr. Blackburn‘s testimony.
As I told y‘all – and I don‘t remember what we discussed on or off the
record, so I may repeat myself just to make sure that the record is
clear. As I told y‘all earlier, I anticipated a large extent of what Mr.
Rouly would say, and yes, I find Mr. Rouly‘s testimony to be self-
13

serving. Yes, I believe there‘s a strong possibility that his perception
is a big issue here, and that his perception is greater than what the
actual facts may bear out. But without having a crystal ball that‘s
allowed into evidence, I don‘t think that counts against him meeting
his burden. Dr. Blackburn finds him to be an appropriate patient, and
Dr. Blackburn clearly, without hesitation, is of the opinion that there
was an aggravation in both the chronic pain and the psychological
disability with the 2003 accident.

Do I have concerns? Yes. Do I believe everything Mr. Rouly
is telling me? No. Does that prevent me from finding that the full
weight of the evidence establishes clearly and convincingly that he‘s
totally and permanently disabled? No, I‘m not prevented from that.
As I said, it causes me some concern, distaste, but I believe, legally,
the burden has been met through the testimony of Dr. Blackburn,
which I also believe met the requirement of establishing that there was
no possibility of rehabilitation to return him to the job force. So, that
would be retroactive to the dates the benefits were terminated after
payment of 520 weeks.

It is well settled that ―[t]he trial court is free to assign whatever weight it

deems appropriate to the testimony of expert witnesses subject to the manifest

error standard of review on appeal.‖ Leary v. State Farm Mutual Auto. Ins. Co.,

07-1184, p. 9 (La.App. 3 Cir. 3/15/08), 978 So.2d 1094, 1101, writ denied, 08-727

(La. 5/30/08), 983 So.2d 900. In fact, ―[t]he effect and weight to be given expert

testimony is within the broad discretion of the trial judge.‖ Pendleton v. Barrett,

97-570, p. 4 (La.App. 3 Cir. 12/23/97), 706 So.2d 498, 501.

As is made clear from the oral reasons for judgment cited above, the WCJ

relied extensively on the testimony of Dr. Blackburn to find that Mr. Rouly had

carried his burden of proof on the disability issue. We find no error in the WCJ‘s

reliance on Dr. Blackburn‘s opinion, nor do we find manifest error in the WCJ‘s

factual conclusions derived from Dr. Blackburn‘s testimony.

While all of the medical evidence recognizes that Mr. Rouly sustained a

right shoulder injury that rendered him temporarily and totally disabled, and all the

rehabilitation evidence makes it clear that Mr. Rouly‘s path to gainful employment

would be limited to some form of physical labor after recovery from the shoulder
14

injury, Dr. Blackburn‘s testimony was the only testimony that addressed the effect

the May 14, 2003 injury had on Mr. Rouly‘s long-standing PSTD and chronic pain

syndrome residuals from the 1990 accident. Dr. Blackburn‘s opinion that Mr.

Rouly‘s May 14, 2003 accident aggravated those two underlying conditions to the

extent that his patient is permanently precluded from returning to gainful

employment was based on at least eighty separate medical evaluations extending

over a period beginning in 1999, and extending through the September 12, 2015

trial on the merits. According to Dr. Blackburn, Mr. Rouly‘s pain medication

requirements had increased four-fold since the May 14, 2003 accident, and no

combination of medication has had an effect on his increasing emotional distress,

depression, or physical pain. He opined that no existing rehabilitation program

would enable Mr. Rouly to improve to a level where he could return to gainful

employment, and that participation in any such program would simply increase his

levels of frustration and despair.

Based on the record before us, we find no merit in this assignment of error.

Answer to Appeal

In his answer to the appeal, Mr. Rouly asserts that the WCJ erred in

sustaining the exception of prescription relative to his request for medical benefits

submitted more than three years after Perero and LUBA made their last such

payment. He argues that because FMC is solidarily liable with Perero and LUBA

based on the fact that his May 14, 2003 accident aggravated the PTSD and chronic

pain syndrome caused by his 1990 work accident, FMC‘s continuous payment of

medical expenses interrupted the prescription on medical expenses owed by Perero

and LUBA. He further argues that the prescription on his medical expenses claim

was interrupted by his two pending and still unresolved claims for workers‘

compensation. Because we find merit in Mr. Rouly‘s first contention, we limit our
15

discussion to that argument.

The question of solidary liability between employers and the payment by

one solidary obligor interrupting prescription relative to medical expenses owed by

the other solidary obligor was addressed by this court in Rave v. Wampold Cos.,

06-978, p. 6 (La.App. 3 Cir. 12/6/06), 944 So.2d 847, 851-52:

Our jurisprudence holds that when the present disability of an
employee in a workers‘ compensation claim is due to a combination
of two or more successive accidents or due to the second accident‘s
having aggravated the prior injury, both the subsequent compensation
insurer and the insurer at the time of the first accident are solidarily
liable for compensation benefits and medical expenses. Prevost v.
Jobbers Oil Transport Co., 95-0224 (La.App. 1 Cir. 10/6/95), 665
So.2d 400, writ denied, 96-0440 (La.4/8/96), 671 So.2d 336; Labeaud
v. City of New Orleans, Department of Property Management, 576
So.2d 624 (La.App. 4th Cir.), writ denied, 581 So.2d 687 (La.1991).
Likewise, when a combination of work-related accidents causes a
disability, or where by virtue of a second accident a prior injury is
aggravated causing disability, both the subsequent employer and the
employer at the time of the first work-related accident are solidarily
liable for compensation benefits and medical expenses. Hill v.
Manpower-Collier Investments, 30,444 (La.App. 2 Cir. 4/8/98), 712
So.2d 560; Tron v. Little Italiano, Inc., 38,556 (La.App. 2 Cir.
6/25/04), 877 So.2d 1055.

In fact, it has been well-settled for at least sixty-five years that
in instances of two or more accidents, all of which are contributing
causes of the ultimate disability, the employers and their insurers at
the time of such accidents may be held solidarily liable for the
payment of compensation.

In this instance, notwithstanding the May 1, 2006 consent partial judgment

and the last medical benefit payment by Perero and LUBA on September 26, 2008,

Perero and LUBA are solidarily liable with FMC for Mr. Rouly‘s medical

expenses based on the WCJ‘s specific finding that his preexisting chronic pain

syndrome and PTSD were aggravated as a result of his May 14, 2003 work

accident. In his trial testimony, Dr. Blackburn stated that he had seen Mr. Rouly

eighty times as of July of 2015. He further indicated in his deposition testimony

that this treatment was paid for by Mr. Rouly‘s prior employer, FMC.

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Accordingly, because there is solidary liability between FMC on the one hand and

Perero and LUBA on the other, every payment of medical expenses made by FMC

as of July of 2015, acted to interrupt the three-year prescriptive period applicable

to medical expenses owed by Perero and LUBA. Accordingly, we reverse the

WCJ‘s November 17, 2014 judgment insofar as it sustained the exception of

prescription and remand the matter for a determination of the medical expenses

owed to Mr. Rouly by Perero and LUBA.

DISPOSITION

Based on the foregoing reasons, we affirm the judgment of the workers‘

compensation judge finding Eugene Rouly totally and permanently disabled; we

reverse the judgment of the workers‘ compensation judge sustaining the exception

of prescription in favor of Perero Companies, Inc., d/b/a DND Landscaping, and

LUBA Casualty Insurance Company; and we remand the matter for further

proceedings to determine the medical expenses owed to Eugene Rouly by Perero

Companies, Inc., d/b/a DND Landscaping, and LUBA Casualty Insurance

Company. We assess all costs of this appeal to Perero Companies, Inc., d/b/a

DND Landscaping and LUBA Casualty Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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