ROSEMARY LEDET, Judge.
This is a workers' compensation case. The principal issue presented on appeal is whether the Office of Workers' Compensation ("OWC") erred in finding the employee met his burden of proving an unwitnessed, work-related accident that caused an aggravation of a preexisting left knee injury. A secondary issue is whether the OWC erred in rejecting the employee's claim that the compensable knee injury caused a subsequent, more disability shoulder injury. From the OWC's judgment awarding $6,474.00 in temporary total disability benefits ("TTD") and an unspecified sum of medical expenses for the knee injury only, both the employee, Russell Marti, and the employer, the City of New Orleans, appeal. For the reasons that follow, we affirm in part, reverse in part as to the unspecific sum of medical expenses, and remand for the determination and the award of a specific sum of medical expenses.
From August 2008 to June 2010, Mr. Marti was employed by the City in the Division of Property Management as a Building Maintenance Manager (Engineering). He was the chief engineer over all the City's approximately three hundred
On the day of the alleged accident (which was in late July or early August 2009),
On July 20, 2010, Mr. Marti commenced this case by filing a disputed claim for compensation (Form 1008) against the City. In his petition, he alleged that the date of the accident was between July 26 and August 10, 2009; the place of the accident was the NOPD Evidence Building; and the details of the accident were as follows:
Mr. Marti alleged that he verbally reported this incident to his supervisor. He also alleged that "[a]s a result of the above left knee re-injury, my left knee gave way and I fell and tore my right shoulder rotator cuff on 3/[10]" and that he was medically unable to return to work. He sought to recover indemnity benefits, medical expenses, and reimbursement of insurance premiums paid by him (COBRA payments). The City answered the petition averring that Mr. Marti did not sustain an accident or injury within the meaning of the Louisiana Workers' Compensation Act ("LWCA").
At the September 8, 2011 trial of the case, the parties stipulated to the following:
Four witnesses testified at trial: Mr. Marti; his wife, Sandra Marti; his co-worker, Alan Burkhardt; and his supervisor, Pamela Smith. The deposition testimony of Mr. Marti's two treating physicians for his knee injury, Dr. Bruce Samuels and Dr. Frederick Keppel, was introduced in lieu of live testimony. To provide a framework for analyzing the issues presented on appeal, we briefly summarize the six witnesses' testimony.
Mr. Marti testified that in the end of July or beginning of August 2009 he was injured while performing an air conditioning maintenance (repair) job on the roof of the NOPD Evidence Building. Although he was a manager, he explained that he was sent to perform such manual repair work because the City was understaffed. He further explained that the accident occurred when he was in an awkward, twisted position attempting to maneuver off the roof through the small, square hatch and reaching for the rung on the makeshift (non-standard) ladder. Given his size — six feet tall and obese — he had to turn sideways on an angle to fit through the hatch. As he was reaching with his leg for the rung of the ladder and put all his weight on his left leg, he felt something pop or snap in his left leg, which caused him to have severe pain. He admitted that he did not fall off the ladder.
Mr. Marti testified that he related the unwitnessed accident to others in the following order: first, his co-worker, Alan Burkhardt; second, his supervisor, Ms. Smith; third, his wife, Sandra Marti; fourth, his orthopedic surgeon, Dr. Frederick Keppel; and fifth, his attorney.
Following the accident, Mr. Marti left the NOPD Evidence Building and went out to lunch with a co-worker, Mr. Burkhardt. At lunch, Mr. Marti was limping. Mr. Burkhardt asked him why he was limping. Mr. Marti replied that he was coming down the ladder at the NOPD Evidence Building and twisted his left knee.
Later that same day, Mr. Marti told his supervisor, Ms. Smith, about the accident.
The next person Mr. Marti indicated in his testimony that he told about the accident was his orthopedic surgeon, Dr. Keppel. According to Mr. Marti, he told Dr. Keppel at his first office visit, which was on October 9, 2009, that he was coming off a roof when he hurt his knee and that he
The last person that Mr. Marti indicated he told about the accident was the attorney he consulted in July 2010 regarding filing a civil service claim against the City after his employment was terminated in June 2010. When he related the ladder accident to his attorney, she informed him that he had a potential workers' compensation claim against the City. Mr. Marti testified that until this time he was unaware if he had a workers' compensation claim. He explained that he was unaware if he had a claim since he only made a verbal report of the accident to the City and apparently no written report was prepared.
Mr. Marti acknowledged that until he filed this workers' compensation claim against the City in July 2010, the only notice he gave the City of the accident was the verbal report he made to Ms. Smith on the day it occurred. Mr. Marti testified that when he told Ms. Smith about the accident, she never mentioned anything about completing a written report. Rather, he recalled that Ms. Smith's responded by threatening to discipline him because he had not reported the accident immediately. Mr. Marti testified that he never followed up with either Ms. Smith or anyone with the City because "all the time, I thought that my leg would be repaired and I'd be going back to work. That's what I would have thought. I didn't really think about anything else, just trying to get back to work."
Mr. Marti testified that the accident occurred on a Thursday and that he took the next day — a Friday — off as a sick day. He returned to work on the following Monday. Although Mr. Marti continued to work for a while (until February 2010) after the accident, he testified that he told his supervisor, Ms. Smith, that because his leg was hurt he would be taking another engineer with him because he was having problems with climbing, squatting, and similar types of activities. He explained that the other engineer "would be with him, and [the other engineer] ... could get up and down the ladders." Mr. Marti also noted that in August 2009, Dr. Samuels provided him with a "return-to-work" slip indicating that he was able to work with the restriction of no stair climbing.
Mr. Marti first sought treatment for his knee about three weeks after the accident — in August 2009. He waited to seek treatment until his standing biannual appointment — every February and August — with his primary care physician, Dr. Samuels. At his standing August 2009 appointment, Mr. Marti did not mention having any recent trauma or injury. Nor did he mention that his knee injury involved a workers' compensation claim. Rather, he mentioned to Dr. Samuels that he was coming off a roof and experienced a popping of his left knee. Mr. Marti believed that he also mentioned that he "twisted that leg" and that the doctor simply failed to put it in his notes.
At the August 2009 visit, Dr. Samuels provided Mr. Marti with a return-to-work note restricting him from climbing stairs. He also ordered ultrasounds of both knees and, based on the results of the ultrasounds, referred Mr. Marti to see an orthopedic specialist. (As noted above, Mr. Marti saw Dr. Keppel in October 2009; and, as noted below, Mr. Marti had knee surgery in February 2010.)
In March and April 2010, Mr. Marti filed for, and obtained, private long term disability income benefits under his policy
While recovering from his knee surgery, Mr. Marti testified that his left knee gave way in his yard at home in March 2010 when he was trying to put more weight on it as his doctor instructed him to do. When he fell, he tried to catch himself with his right arm and re-injured his right shoulder. On May 19, 2010, Mr. Marti had surgery for his right shoulder. (Dr. Devraj performed that surgery.)
Beginning on the date of the knee surgery (February 25, 2010), Mr. Marti took leave under the Family Medical Leave Act ("FMLA"), due to his medical condition and knee surgery. His FMLA leave ended on May 19, 2010 (the date of his shoulder surgery). Thereafter, he never returned to work. On June 4, 2010, the City terminated Mr. Marti from employment because he was unable to return to work due to health reasons.
Sandra Marti, Mr. Marti's wife, corroborated Mr. Marti's testimony that he told her about the ladder incident when he returned home from work on the day that it occurred. Although she was unsure of the date of the accident, she testified that she was certain the accident occurred on a Thursday because her husband took the next day (Friday) off from work to have the long weekend to allow his leg to recover so that he could return to work on Monday. She testified that she observed her husband was in pain. She asked her husband if he reported the injury to his supervisor, and he told her that he had reported it.
Mrs. Marti accompanied her husband to see Dr. Samuels in August 2009 and Dr. Keppel in October 2009. When they saw Dr. Keppel for the first time, Dr. Keppel asked them if the knee injury involved a workers' compensation case. Mrs. Marti testified that they told him it might be and that her husband described for the doctor how the accident occurred.
Allan Burkhardt, Mr. Marti's co-worker, testified that he worked for the City's Department of Property Management for thirty-two years and was a superintendent. Mr. Burkhardt testified that on the day of the accident he had lunch with Mr. Marti at Betsy's on Canal Street. According to Mr. Burkhardt, Mr. Marti came limping into Betsy's, stated that he had just come from a job at the NOPD Evidence Building, and stated that he had injured his knee coming down a ladder. Mr. Burkhardt testified that he remembered telling Mr. Marti to "[m]ake sure you report this injury. Because the way the system is set up, if you wait too long to report, it might not look good." He indicated that Mr. Marti stated that he was going to take care of it.
Pamela Smith, Mr. Marti's supervisor at time of accident, testified that she was employed by the City from November 2006 to June 2010 as Director of Plant Operations. In August 2008, she hired Mr. Marti as a chief engineer. At that time, he was recovering from surgery for kidney
According to Ms. Smith, the procedure for reporting work-related injuries was that employees were required first to notify their immediate supervisor and then to complete written reports and turn them into the Human Resources Manager. Ms. Smith was Mr. Marti's supervisor; he reported directly to her. Ms. Smith had no recall of Mr. Marti verbally notifying her of any job-related injury. Nor did she recall threatening him with any disciplinary action for failing to timely report a work-related accident. She acknowledged that she could not say that a work-related injury did not occur; rather, she could only say that she did not remember Mr. Marti ever mentioning an incident that happened causing him an on-the-job injury.
Ms. Smith testified that she was a very busy person — she was responsible for about three hundred City buildings, managed about eighty employees, and received almost a thousand emails a week. Because she was so busy, she admitted that sometimes employee problems were brought to her attention, but slipped through the cracks. Nonetheless, she clarified that she never let any serious employee problem, such as a work-related injury, be neglected.
Dr. Bruce Samuels, an internal medicine doctor, testified by deposition. He testified that he saw Mr. Marti for his regularly scheduled visit in August 2009. By way of background, Dr. Samuels noted that Mr. Marti was an established patient who had been seen by his office since at least 1995. Dr. Samuels further noted that both he and his former partner had treated Mr. Marti for various conditions, including knee problems. Dr. Samuels noted that Mr. Marti had a preexisting problem with both knees and that he often complained of knee pain. Dr. Samuels explained that in February 1995 his partner noted that Mr. Marti was on disability for his knees
Dr. Samuels further testified that, as Mr. Marti's primary care physician, he saw Mr. Marti biannually — each February and August. At the February 2009 visit, Dr. Samuels ordered x-rays of both Mr. Marti's knees, but did not order ultrasounds. Dr. Samuels testified that the x-ray results revealed that Mr. Marti had osteoarthritis and "osteochondromatoses" — degeneration of the cartilage because the spaces are narrowed — in both knees.
At the August 2009 visit, Dr. Samuels not only provided Mr. Marti with a return to work note restricting stair climbing, but also ordered ultrasounds of both knees. Opining that during the six month interval
Dr. Samuels acknowledged that he could not say one way or another whether things got worse as a result of some trauma or just a continuation of what he observed at the February 2009 office visit. Dr. Samuels explained that he could not make that determination because he did not have anything mentioned in his notes regarding whether Mr. Marti hurt himself or had some trauma or injury. Dr. Samuel also confirmed that he had noting mentioned in his notes about a ladder incident and that he had no personal recollection of Mr. Marti telling him about any sort of injury. Nonetheless, Dr. Samuels confirmed that he wrote a return to work note for Mr. Marti and thus Mr. Marti "must have talked about something that caused him to be off of work." Dr. Samuels also confirmed that he had knee pain written in the impressions.
Dr. Samuels agreed that it could be concluded that Mr. Marti had some kind of preexisting condition with regard his knees when he came to him in August 2009. He further agreed that a trauma or a bending of his knees under certain circumstances could cause an aggravation to that preexisting condition to his knees. He still further agreed that it could be inferred from the fact that Mr. Marti had knee surgery in February 2010 that there had been some aggravation to that preexisting condition.
In response to the question of whether he, as Mr. Marti's treating physician, could say with a reasonable degree of medical certainty that it was more probable than not that Mr. Marti suffered a knee injury in July or August 2009, Dr. Samuel replied:
Based on the ultrasound results, Dr. Samuels, as Mr. Marti's primary care physician, referred Mr. Marti to an orthopedic specialist.
Dr. Frederick Keppel, an orthopedic surgeon, testified by deposition. He testified that Mr. Marti first presented to him on October 7, 2009, on referral from Dr. Samuels. At that initial visit, Mr. Marti complained of bilateral knee pain and had chronic arthritis on both knees. Dr. Keppel's recommendation, which Mr. Marti accepted, was for him to perform surgery on Mr. Marti's left knee to remove a loose body and to relieve his symptoms. Dr. Keppel explained that, in this context, a loose body means "a piece of cartilage and bone which is loose in the knee joint." Dr.
In preparing for his deposition, Dr. Keppel testified that he reviewed Mr. Marti's chart. In the chart, the first reference he found to an incident occurring in August 2009 involving Mr. Marti's knee was a chart note dated March 25, 2011. Explaining the chart note, Dr. Keppel testified:
In response to questions regarding to the August 2009 work-related accident, Dr. Keppel testified as follows:
Dr. Keppel acknowledged that in March 2010 he helped Mr. Marti complete a Hartford application for long-term disability benefits. In that application, there is a question whether the condition or injury was related to a work-injury, and the response given is no. In his deposition, Dr.
Given the history he observed, Dr. Keppel testified that his opinion was that it was "very possible" that Mr. Marti would have required a surgical procedure such as he performed in February 2010 regardless of whether Mr. Marti was involved in a trauma such as he described having experienced in August 2009. Dr. Keppel also agreed that if someone has an extensive history of degenerative knee problems with a loose body in the knee that person may experience a popping sensation as a symptom, not necessarily as a trauma or an accident.
As to the shoulder injury, Dr. Keppel testified that in his note dated April 14, 2010, he stated:
Dr. Keppel noted that the shoulder diagnosis based on the MRI was rotator cuff tear.
Following the trial, the OWC Judge rendered judgment finding as follows:
From this judgment, both sides appealed.
In worker's compensation cases, the appropriate standard of review that appellate courts must apply to the OWC's factual findings is the manifest error or clearly wrong standard. Hahn v. X-Cel Air Conditioning Inc., 12-0236, pp. 4-5 (La.App. 4 Cir. 1/9/13), 108 So.3d 262, 266; Gray v. Marriott Residence Inn, 11-1068, pp. 5-7 (La.App. 4 Cir. 2/1/12), 85 So.3d 163, 166-67 (citing Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117). An appellate court cannot set aside an OWC's factual findings unless its findings are clearly wrong in light of the entire record. Gray, 11-1068 at p. 6, 85 So.3d at 166-67 (citing Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, 710).
The "bedrock principle" that an appellate court must give deference to the trier of fact's factual findings, which was set forth in Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973), was reiterated in Marange v. Custom Metal Fabricators, Inc., 11-2678, pp. 7-8 (La.7/2/12), 93 So.3d 1253, 1258. Quoting from Canter, the Supreme Court in Marange reiterated that principle:
Id. (quoting Canter, 283 So.2d at 724). As one appellate court has noted, the Supreme Court in Marange "strongly admonished the intermediate courts to defer to the WCJ's reasonable credibility calls and factual findings." Brown v. Offshore Energy Service, Inc., 47,392, p. 9 (La.App. 2 Cir. 8/8/12), 104 So.3d 494, 501.
On the other hand, when legal error interdicts the fact-finding process in a workers' compensation case, "the de novo, rather than the manifest error, standard of review applies." Tulane University Hosp. & Clinic v. Lockheed Martin Corp., 11-0179,
As noted at the outset, both the City
The threshold requirement an employee in a workers' compensation case must establish is "personal injury by accident arising out of and in the course of his employment." LSA-R.S. 23:1031 (emphasis supplied). An "accident" is statutorily defined as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." La. R.S. 23:1021(1). Although the jurisprudence has liberally construed the work-related accident requirement, the employee's burden of proof is not relaxed; "[r]ather, as in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence." Bruno v. Harbert International Inc., 593 So.2d 357, 360-61 (La.1992).
On appeal, the City argues that the OWC judge erred in finding that Mr. Marti met his burden of proving the occurrence of a work-related accident under the LWCA. The City contends that the OWC's finding of a work-related accident was manifestly erroneous for four reasons. First, the City contends that Mr. Marti's popping sensation in his knee, according to his treating surgeon (Dr. Keppel), could have been a symptom of the degeneration in his left knee as opposed to a trauma or an accident. Second, Mr. Marti's testimony that he was unaware he had a workers' compensation claim until almost a year after the accident, July of 2010, when he brought this suit is inconsistent with his testimony that he told Ms. Smith on the day of the accident that he had a work-related
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness's uncontradicted testimony, although the witness is a party, absent "circumstances casting suspicion on the reliability of this testimony." West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979). The trial court's determinations as to whether the worker's testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review unless manifestly erroneous. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 823-24 (La.App. 2d Cir.1988) (collecting cases).
It is undisputed that the alleged accident in this case was unwitnessed. An employee's testimony alone may be sufficient to establish an unwitnessed work-related accident provided the following two factors are satisfied: (1) no other evidence discredits or casts serious doubt upon the employee's version of the incident; and (2) the employee's testimony is corroborated by the circumstances following the alleged incident. Bruno, 593 So.2d at 361 (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979)).
The first Bruno factor was addressed by the Supreme Court in Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La.1/19/11), 56 So.3d 215. The employee, Mr. Ardoin, claimed that the unwitnessed accident occurred when he almost fell off his bike, threw down his right leg, and twisted his knee. In finding the first Bruno factor was not satisfied, the Supreme Court summarized the evidence discrediting or casting serious doubt on the employee's account as follows:
Ardoin, 10-0245 at p. 13, 56 So.3d at 223. The Supreme Court thus held that the Workers' Compensation Judge erred in finding, and the appellate court in affirming that factual finding, that the employee (Mr. Ardoin) sustained an unwitnessed work-related accident in which he injured his knee.
Contrary to the City's contention, in this case, unlike in the Ardoin case, there is no evidence discrediting or casting serious doubt on the employee's version of the
The pertinent considerations in determining whether the second Bruno factor — corroboration of the worker's testimony — is satisfied have been identified as including the following five factors: late report, supervisor and co-worker testimony, medical evidence, prior injuries, and another accident as source. 1 Denis Paul Juge, LOUISIANA WORKERS' COMPENSATION § 8:1 (2d ed.).
The first factor is whether the employee filed, or failed to file, a prompt accident report. Mr. Marti testified that he verbally reported the accident on the day it occurred to his supervisor, Ms. Smith. Conversely, Ms. Smith testified that she did not recall Mr. Marti reporting either the accident or any job-related injury. The OWC Judge resolved this factual dispute in Mr. Marti's favor noting the following points in her reasons for judgment:
"[T]estimony by family and friends to the effect that the claimant related the event to them soon afterwards, in substantially the same manner that he now recounts it, is corroborative." H. Alston Johnson, III, 13 LA. CIV. L. TREATISE, WORKERS' COMPENSATION LAW AND PRACTICE § 253 (5th ed). At trial, both Mr. Marti's wife and his co-worker testified that he related the event to them soon afterwards — on the date it occurred — in substantially the same manner that he now recounts it — he twisted his knee coming down a ladder. Summarizing their corroborating testimony, the OWC Judge noted in her reasons for judgment that "[Mr. Burkhardt] recalled seeing Mr. Marti limping and asked what had happened. Mr. Burkhardt testified that Mr. Marti told him that Mr. Marti had stepped off of a ladder and had hurt himself." The OWC Judge further noted that "[w]hen Mr. Marti returned from work to his home on the day of the accident, Sandra Marti, Claimant's wife, saw he was in pain. Mrs. Marti testified that Mr. Marti told her that evening about the ladder and the accident in the NOPD evidence building."
"One of the most important factors considered by the courts is whether the early medical records support the history of a job accident." LOUISIANA WORKERS' COMPENSATION § 8:1. Finding the medical records introduced corroborated Mr. Marti's version of the accident, the OWC Judge stated in her reasons for judgment that "on June 16, 2008, shortly before Mr. Marti began working for the City, he underwent a physical at Concentra Medical Centers. This exam showed that Mr. Marti's knee condition, range of motion and reflexes were within normal limits and that he had no medical restrictions." The OWC Judge thus noted that although Mr. Marti had a prior history of knee problems, Concentra, based on that pre-employment physical, found that "his knee was within normal limits and that he was fit for duty." The OWC Judge further noted that "this changed after the accident" and that "[s]hortly after this fall,
The next factor is a prior, similar injury. "The fact that an employee has previously had an injury similar to the one that is alleged to have occurred at work is generally irrelevant in a workers' compensation claim as the employer `takes his employee as he finds him.'" LOUISIANA WORKERS' COMPENSATION § 8:1. This factor, however, becomes relevant "if the employee denies that he ever had such injury or denies that the prior injury was still causing him problems prior to his `accident' at work and this denial is contradicted by the evidence at trial." Id. Conversely, the jurisprudence has recognized as a corroborating factor the fact that an employee with a prior injury had been working at his job for some time before the accident without problems. See Blair
This factor is inapplicable. The record does not reflect any other accident as a possible source of Mr. Marti's re-injury of his knee.
As a noted commentator has stated, "[w]here the testimony or corroborative circumstances are inconclusive or inconsistent, the plaintiffs credibility may determine the outcome." LOUISIANA WORKERS' COMPENSATION § 8:1. Such is the case here. The OWC Judge in her reasons for judgment expressly found that Mr. Marti was "very credible at trial." In so finding, the OWC Judge cited Ms. Smith's testimony that Mr. Marti "was a good employee, who was honest."
Based on the above analysis, we conclude that the OWC Judge's finding that Mr. Marti met his burden of establishing an unwitnessed, work-related accident — the implicit finding that both Bruno factors were satisfied — is not manifestly erroneous. In so finding, we acknowledge that there are some factors that could be considered inconsistent with a work-related accident. See Sheppard v. Isle of Capri, 40,048, p. 8 (La.App. 2 Cir. 8/17/05), 909 So.2d 699, 704 (noting the fact employee initially sought leave under FMLA to be inconsistent with a work-related injury). As the City contends, the medical evidence corroborating the accident is scant. The first reference in the medical records to a work-related injury or trauma is Dr. Keppel's March 25, 2011 chart note. However, the medical evidence is only one of the multiple factors to be considered in determining if the employee's testimony is corroborated.
As noted earlier, the City failed to offer any evidence to discredit or cast serious doubt on Mr. Marti's version of the accident at the NOPD Evidence Building. Given that the OWC Judge's finding of a work-related accident is reasonable in light of the record in its entirety, we cannot find manifest error. The City's contention that Mr. Marti failed to establish a work-related accident is unpersuasive.
The City next contends that even assuming, arguendo, a work-related accident was established, the medical evidence is insufficient to satisfy Mr. Marti's burden of proving the accident caused a compensable injury or disability. The City points out that if the probability of causation is equally balanced on the evidence presented, the employee has failed to carry his burden of proof. The City further points out that neither of Mr. Marti's treating physicians for his knee injury — neither Dr. Keppel nor Dr. Samuels — offered any support
Although we agree with the City's contention that Mr. Marti failed to establish that the accident caused the shoulder injury, we disagree with its contention as to the knee injury. We find no error in the OWC's Judge's finding that Mr. Marti established that he suffered a compensable knee injury but not a compensable shoulder injury. We separately address each injury below.
For ease of discussion, we first address Mr. Marti's contention that the OWC Judge erred in failing to find his shoulder injury was caused by the compensable knee injury. As noted elsewhere, Mr. Marti alleges that as a result of his work-related, left knee injury, his left knee gave way causing him to fall at home and to re-injure his right shoulder. Rejecting Mr. Marti's contention that as a result of his compensable knee injury — a knee-related fall — he suffered an aggravation of a preexisting shoulder injury, the OWC Judge in her reasons for judgment stated:
We find no manifest error in the OWC Judge's factual finding that the subsequent shoulder injury was not a compensable injury.
Unlike the shoulder injury, the OWC Judge found that Mr. Marti's met his burden of proving that the aggravation of his preexisting knee injury was caused by the work-related accident. In so finding, the OWC Judge summarized the pertinent jurisprudence regarding an employee's proof of causation of a disability resulting from aggravation of a preexisting condition as follows:
Summarized, the presumption of causation is as follows:
Eldon E. Fallon, LA. PRAC. TRIAL HANDBOOK FOR LA. LAWYERS § 21:19 (3d ed.).
The OWC Judge in her reasons for judgment implicitly found all the requirements for invoking the presumption of causation were satisfied. First, the disabling symptom — aggravation of the preexisting left knee injury — was found not to exist before the work-related accident. The OWC Judge noted that Mr. Marti's June 2008 Concentra pre-employment physical revealed that he had no medical restrictions relating to his knee. Second, the OWC Judge found that the disabling symptoms commenced with the work-related accident. Explaining this finding, the OWC Judge stated in her reasons for judgment the following:
Likewise, the OWC Judge noted that Dr. Keppel "felt that it was possible that this accident aggravated Mr. Marti's condition."
Third, the OWC Judge found that the medical evidence established a reasonable possibility of a causal connection between the work-related accident and the commencement of the disabling condition. In support of this finding, the OWC Judge cited the testimony of Dr. Keppel that the work-related accident possibly caused an aggravation of Mr. Marti's preexisting left knee injury. Dr. Keppel testified that the ladder incident "may have aggravated his condition which was in the left knee" and that it was possible that this ladder incident aggravated Mr. Marti's preexisting left knee injury.
The City's next argument is that the OWC Judge erred in awarding Mr. Marti TTD in the amount of $6,474.00 from February 25, 2010 (the date of the knee surgery) through May 18, 2010 (the day before the shoulder surgery and the end of the FMLA leave) at maximum rate of $546. The City points out that La. R.S. 22:1221 provides that TTD can be awarded only if the employee proves by "clear and convincing evidence that [he] is physically unable to engage in any employment as a result of a work-related injury." The City further points out that Mr. Marti quit working in February 2010 following his knee surgery. According to the City, no medical evidence was presented to support the position that the knee surgery was necessitated by any work-related injury.
The City still further points out that Mr. Marti, in completing the paperwork for the Hartford disability claim, enumerated multiple causes of his disability of which the knee injury was only one. The City emphasizes that neither of Mr. Marti's treating physicians for his knee injury could say that Mr. Marti's knee injury was aggravated by a work-related accident. Rather, Dr. Samuels testified that he could "not say one way or the other" whether any increase in left knee symptoms that Mr. Marti presented with in August 2009 were due to trauma as opposed to the natural progression of the preexisting knee problems he observed in February 2009. Dr. Keppel opined that when he operated on the left knee in February 2010 he observed a loose body in the knee joint that was the result of arthritis and extensive degeneration of the medial meniscus. Dr. Keppel testified that a trauma "could" aggravate such a condition. Given the absence of clear and convincing evidence that Mr. Marti's inability to work was due to a work-related incident, the City contends that the OWC Judge erred in awarding Mr. Marti TTD.
An employee seeking TTD has the burden of proving by clear and convincing evidence that he is unable to engage in any type of employment. Reinhardt v. City of New Orleans, 09-1116, p. 26 (La.App. 4 Cir. 1/13/10), 30 So.3d 229, 244. This court has held that an employee seeking TTD benefits must introduce objective medical evidence to sustain his claim by clear and convincing evidence. Bilquist v. Custom Craft Homes, Inc., 12-0469, pp. 13-14 (La.App. 4 Cir. 11/7/12), 105 So.3d 194, 203 (citing Jackson v. Sysco Food Services, 05-1304, pp. 1-2 (La.App. 4 Cir. 6/7/06), 934 So.2d 191, 193); see also Blair, 01-2211 at pp. 7-17, 818 So.2d at 1047-53. In determining whether an employee has met his burden of proving by clear and convincing evidence his entitlement to TTD benefits, the OWC Judge must weigh both medical and lay evidence. Bilquist, 12-0469 at p. 14, 105 So.3d at 203.
In finding Mr. Marti was entitled to TTD, the OWC Judge reasoned as follows:
The OWC Judge in her reasons for judgment identified at least two sources of support for her finding that Mr. Marti met his burden of proving by clear and convincing evidence his entitlement to TTD — Dr. Keppel's note and the FMLA form. Dr. Keppel's note documents Mr. Marti's inability to return to work while recovering from the knee surgery. The FMLA form, which Dr. Keppel completed for Mr. Marti on January 19, 2010, states that the patient's condition involves a "serious health condition" as defined under the FMLA. It describes the medical facts as left knee pain, severe arthritis, and a loose body. It states that the employee will be required to take off of work because of surgery scheduled on February 25, 2010, and that patient will need up to three months to recover. It further states that patient "may be at no duty till after recovery from surgery or light duty." It states that patient will be absent from work until release after surgery.
In awarding TTD, the OWC Judge narrowly cabined the period for which such benefits were awarded to the period during which Mr. Marti was on FMLA leave convalescing from the February 2010 knee surgery. Contrary to the City's contention, we find no error in the TTD award of $6,474.00.
The governing statute is La. R.S. 23:1203, which provides that "the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment." An injured employee claiming medical expenses under the LWCA must prove by specific evidence that his claim is related to his work-related injury. Montana v. City of New Orleans, 95-1701, p. 9 (La.App. 4 Cir. 6/5/96), 682 So.2d 239, 245 (citing Schulz v. Board of Com'rs of Port of New Orleans, 614 So.2d 135, 137 (La.App. 4th Cir.1993)). The employee's burden of proof is by a preponderance of the evidence. Id. "Unparticularized evidence from which it may be inferred that the employee received medical treatment does not constitute
In this case, the OWC Judge awarded Mr. Marti medical expenses associated with the re-injury of his left knee. In so doing, the OWC failed to award a specific sum of medical expenses; instead, the OWC's judgment lists four categories of covered expenses — (1) Dr. Samuels, (2) Dr. Keppel, (3) Dr. Devraj,
The City contends that the OWC erred in awarding reimbursement for medical expenses that were not properly quantified or identified with specificity as being causally related to any specific accident or injury. The City argues that Mr. Marti never put into evidence exactly which charges were incurred for his specific work-related condition. The City's argument has merit.
The Code of Civil Procedure defines a judgment as "the determination of the rights of the parties in an action and may award any relief to which the parties are entitled." La. C.C.P. art. 1841. The OWC's judgment is legally deficient in that it fails to award a specific sum for medical expense related to the knee injury; "[t]he employer is unable to ascertain which bills the court has awarded as reasonable, necessary and work-related." Oxley v. Sattler, 97-1299 (La.App. 3 Cir. 2/18/98), 710 So.2d 261, 266 (citing La. C.C.P. art. 1841). For these reasons, we reverse the unspecific award of medical expenses for the knee injury and remand to the OWC for the limited purpose of taking additional evidence, if necessary, for the purpose of determining and awarding a specific sum of medical expenses for the knee injury.
Mr. Marti contends that the OWC erred in failing to award him penalties and attorneys' fees. Citing Coscino v. Louisiana State Boxing and Wrestling Comm'n, 97-2733 (La.App. 4 Cir. 9/9/98), 718 So.2d 1016, the OWC found that Mr. Marti was not entitled to such an award because he failed to plead the same. We agree.
"When items of special damage are claimed, they shall be specifically alleged." La. C.C.P. art. 861. Penalties and attorneys' fees are items of special damages, within the meaning of La. C.C.P. art. 861, that must be specifically alleged. See Box v. City of Baton Rouge, 02-0198 (La.App. 1 Cir. 1/15/03), 846 So.2d 13 (citing Coscino, 97-2733 at p. 6, 718 So.2d at 1020).
This case is factually distinguishable from Haynes v. Lee White Wrecker Service, 612 So.2d 944 (La.App. 4th Cir.1993), in which this court held that a pro se
Unlike the claimant in Haynes, Mr. Marti was represented by an attorney, yet failed to request an award of penalties and attorneys' fees in his disputed claim form. Nor did he request leave of court to amend his petition to request such an award. At the beginning of the trial in this matter, the City informed the OWC Judge of Mr. Marti's failure to allege that he was entitled to an award of penalties and attorneys' fees in his disputed claim form. In response to the OWC Judge's questioning of whether this was correct, Mr. Marti's counsel replied: "I think that penalties are alleged." The record, however, does not support that representation.
On appeal, Mr. Marti argues that regardless "whether he pled them in his 1008 form," he is entitled to penalties and attorneys' fees. This argument is unpersuasive. Mr. Marti failed to request an award of penalties and attorneys' fees; thus, the issue was not properly presented to the OWC. We decline to consider the issue for the first time on appeal.
The final issue is Mr. Marti's contention that the OWC erred in rejecting his claim for reimbursement of the escalated health insurance premiums he incurred after being terminated by the City (COBRA payments). The OWC found that it lacked subject matter jurisdiction to decide Mr. Marti's claim for reimbursement of insurance premiums.
Under the Louisiana Constitution, district courts are vested with jurisdiction over all civil and criminal matters "[e]xcept as otherwise authorized by [the constitution] or except as heretofore or hereafter provided by law for administrative agency determinations in worker's compensation matters." La. Const. art. V, § 16(A)(1). Pursuant to La. R.S. 23:1310.3, the OWC is vested with jurisdiction only for "claims or disputes arising out of the LWCA.
The jurisprudence has held that "[i]f an issue arises out of the Workers'
Based on these principles, we find no error in the OWC's determination that it lacked subject matter jurisdiction to decide Mr. Marti's claim for reimbursement of insurance premiums.
For the forgoing reasons, the judgment of the Office of Workers' Compensation is reversed insofar as it awards an unspecified amount of medical expenses for the knee injury. In all other respects, the judgment of the Office of Workers' Compensation is affirmed. This matter is remanded for the limited purpose of taking additional evidence, if necessary, in order to determine and to award a specific sum of medical expenses for the knee injury. Costs of this appeal are divided equally between the parties.
