JOAN BERNARD ARMSTRONG, Chief Judge.
The plaintiff, Leonard Keasley, appeals the summary judgment granted by the Workers' Compensation District 8 Hearing Officer on November 6, 2009, dismissing his claim of permanent and total disability.
Mr. Keasley filed a disputed claim for workers' compensation benefits against his employer, Transit Management of Southeast Louisiana (hereinafter TMSEL), on November 7, 2002, arising from an accident on November 5, 1991 in which Mr. Keasley was hurt when moving a box of copy paper.
In June of 2007, counsel for TMSEL withdrew, and new counsel was enrolled. Just over a year later, TMSEL moved for summary judgment, contending that its reduction of Mr. Keasley's temporary total disability (TTD) benefits to supplemental earning benefits (SEB) was proper as a matter of law. TMSEL also moved for summary judgment that Mr. Keasley was not permanently and totally disabled. TMSEL contended that it paid Mr. Keasley TTD benefits from November 21, 1991 until June 3, 2000, at which time the benefit was reduced to SEB, which benefits Mr. Keasley received until he reached the statutory maximum in November of 2001. TMSEL based its reduction of benefits from TTD to SEB on the opinions of four physicians that Mr. Keasley was able to return to work. In support of its position, TMSEL provided unsworn statements of Roy R. Marrero, M.D. dated January 6, 1991; A.N. Diodene, Jr., M.D. dated July 9, 1993; Wilmot F. Ploger, M.D. dated October 7, 1994; Harry E. Hoerner, M.D. dated August 27, 1996; and Robert L. Mimeles, M.D. dated February 10, 1998 and January 18, 2000. On October 31, 2008, the Hearing Officer denied TMSEL's motions for summary judgment. The Hearing Officer issued the following written reasons:
On August 11, 2009, TMSEL reurged its motion for partial summary judgment as to Mr. Keasley's claim of permanent and total disability arising from his 1991 injury. TMSEL contended that new evidence discovered during the taking of Mr. Keasley's deposition cured the deficiencies that existed when the motion was heard the previous year. Following a hearing, the Hearing Officer granted TMSEL's unopposed motion for partial summary judgment as to Mr. Keasley's kidney condition, and granted TMSEL's opposed motion for partial summary judgment as to Mr. Keasley's claim for permanent and total disability.
Mr. Keasley prosecutes the instant appeal from the judgment insofar as it grants the motion for partial summary judgment dismissing Mr. Keasley's claim for permanent and total disability benefits. Mr. Keasley assigns a single error, contending that the opinion of his treating physician, Bernard Manale, M.D., that he was totally and permanently disabled, creates a genuine issue of material fact, precluding summary judgment. For the reasons that follow, we affirm the judgment of the Office of Workers' Compensation in part, vacate and set aside the judgment in part, and remand for further proceedings consistent with this opinion.
The record contains copies of reports prepared by physicians and other health care providers setting forth Mr. Keasley's medical history.
Following the 1991 work-related injury, Mr. Keasley again saw Dr. Marrero, on November 5, 1991. Dr. Marrero diagnosed a lumbar spine sprain and instructed Mr. Keasley not to return to work. Dr. Marrero again saw Mr. Keasley on January 6, 1992, and determined that he had fully recovered from his lumbar spine sprain and was ready to return to work without residual effects. Mr. Keasley's subsequent medical history follows this time-line:
October 28, 1992:
June 25, 1993: Orthopedist A.N. Diodene examined Mr. Keasley, reviewed his records, and found he was capable of returning to work, but should avoid bending and heavy lifting "for the present time."
July 12, 1993:
September 10, 1993:
October 4, 1993: Mr. Keasley was injured in a non-work-related automobile accident in New Orleans. Dr. Manale examined him, took X-rays, and recommended surgery.
December 3, 1993:
March 28, 1994: Mr. Keasley was injured in another non-work-related automobile accident in New Orleans. Mr. Keasley filed suit based on the accidents of October 4, 1993 and March 28, 1994. In these suits, he claimed aggravation of his pre-existing back condition.
July 13, 1994: Mr. Keasley completed a Social Security Administration Disability Report seeking disability benefits. On October 21, 1994, the request was denied.
August 27, 1996: Orthopedist Harry Hoerner, M. D., examined Mr. Keasley and reviewed his medical records in connection with the latter's application for SSD benefits. Once again, according to Dr. Hoerner's report of even date, Mr. Keasley gave a history of having been involved in an automobile accident. Dr. Hoerner noted that Mr. Keasley told him that he was rear-ended while driving as a courier for the Regional Transit Authority, making deliveries in New Orleans. The report notes that Mr. Keasley told him that he was seen by Dr. Marrero, who took X-rays and prescribed physical therapy. He was then seen and treated by Dr. Manale, who told Mr. Keasley that he had four ruptured discs, and recommended surgery. While Mr. Keasley denied any other injuries or accidents involving his lower back, Dr. Hoerner noted that Dr. Manale's records reflect that Mr. Keasley reported an automobile accident on March 28, 1994, that did not cause any increased back problems. Dr. Hoerner diagnosed a chronic lumbosacral musculoligamentous strain with degenerative arthritis and degenerative disc disease involving L 1-2, L 4-5, and L5-S1. Dr. Hoerner noted that there was no evidence of nerve root irritation and found inconsistencies with range of motion of Mr. Keasley's back when he was standing or sitting. Dr. Hoerner concluded that Mr. Keasley was, at that time, capable of at least some type of light to light-medium work where he would have some restrictions, primarily with continuous heavy lifting, long standing, walking, climbing, bending, squatting, stooping, crawling, and kneeling.
December 10, 1996: An SSD hearing was held resulting in a decision on December 13, 1996, granting Mr. Keasley SSD benefits
February, 1998: At TMSEL's request, Robert L. Mimeles, M.D., examined Mr. Keasley and reviewed his medical history, including a September, 1993, CT scan of the lumbar spine, and a December, 1993, MRI. Dr. Mimeles concluded in his report of February 10, 1998, that Mr. Keasley's history was not indicative of a long-term back injury, and that he had reached maximum medical improvement. Dr. Mimeles opined:
November 18, 1998:
January 18, 2000: Dr. Mimeles again examined Mr. Keasley, and reviewed an MRI taken in November, 1998. He noted that the MRI showed no herniated discs and that Mr. Keasley's spine was consistent with what was expected of a 59-year old gentleman with degenerative disc disease and degenerative arthritis. He saw nothing to suggest any significant compressed nerve roots. Dr. Mimeles did not believe Mr. Keasley should go back to work involving much stooping, bending, and lifting. He opined, "His [Mr. Keasley's] auto accident dates back to 1991 and obviously this injury, in my opinion, should have settled down some seven to eight years ago." He concluded that Mr. Keasley could do a light duty job, was "certainly not 100% disabled from ever doing anything," and could have long since been working at some type of modified job.
March 20, 2000: Orthopedist Warren Bourgeois, III, M.D., received an appointment to perform an independent medical examination of Mr. Keasley pursuant to the provisions of La. R.S. 23:1123. On May 2, 2000, he saw Mr. Keasley and issued a report on May 9, 2000. Dr. Bourgeois concluded that Mr. Keasley had degenerative disc disease and lumbosacral spine arthritis consistent with his age. He opined that his physical examination of Mr. Keasley was "consistent with symptom magnification," and noted no positive findings for nerve root impingement. According to Dr. Bourgeois, Mr. Keasley should be capable of modified light duty with no lifting over ten pounds. By Mr. Keasley's own history, Dr. Bourgeois concluded that Mr. Keasley was able to sit for up to two hours at a time and "certainly alternating sitting and standing he should be able to accomplish modified light activity for six to eight hours a day." However,
December 6, 2000: At TMSEL's request, Gary Ordes,
January 8, 2001: Mr. Ordes conducted another LMS, certified by Dr. Bourgeois, and mailed the survey to Mr. Keasley and his attorney. Mr. Ordes identified a Job Contact Log completed by Mr. Keasley dated January 23, 2001, indicating that he applied for the jobs indicated on the log. Mr. Ordes also identified a Job Contact Log completed by Mr. Keasley dated February 13, 2001, indicating there were no openings for the jobs. According to Mr. Ordes, he had no way of knowing whether or not Mr. Keasley in fact applied for these jobs. Mr. Ordes noted that, since he had not seen Mr. Keasley for more than two years, he had no opinion concerning his current disability status.
January 9, 2002:
March 5, 2002: Dr. Manale saw Mr. Keasley for the last time and did not change his opinion of July 12, 1993 that Mr. Keasley was totally disabled.
July 31, 2003: Mr. Keasley saw Kenneth Adatto, M.D., Dr. Manale's associate at OOA, on July 28, 2003. Dr. Adatto noted in his report of July 31, 2003, that Mr. Keasley has a total and permanent disability, reflected in an anatomical ten to fifteen percent disability of the lumbar spine. He noted that Mr. Keasley "needs to avoid prolonged sitting or standing in the same position for 45 minutes, plus/minus 15 minutes without being able to move around and change position. The disability and restrictions are the same with or without surgery." He defined Mr. Keasley's disability status as "total permanent spinal disability," and instructed him to return in three months.
August 13, 2003: A physician
February 5, 2004: Dr. Adatto electronically signed a report of his examination of Mr. Keasley, noting a ten to fifteen percent permanent impairment of Mr. Keasley's lumbar spine. This same notation was made following examinations on May 4, 2004; August 3, 2004; November 8, 2004; January 6, 2005; and March 3, 2005. While noting an anatomical impairment of ten to fifteen percent of the lumbar spine, these subsequent reports do not seem to contradict Dr. Adatto's initial finding of total and permanent disability in July of 2003.
April 28, 2005 and July 28, 2005: Dr. Adatto assigned to Mr. Keasley the following working/impairment status: "ACTIVITY/FUNCTIONAL LIMITATIONS: The patient needs to avoid repetitive stooping or bending, repetitive lifting of objects over 10-20 pounds as well as prolonged sitting or standing in the same position for 45 minutes, plus/minus 15 minutes without being able to move around and change position. These restrictions are the same with or without surgery. KNEE: Avoid repetitive or prolonged standing, walking, squatting, crawling, kneeling or walking on uneven surfaces. PERMANENT ANATOMICAL IMPAIRMENT: 10-15% OF THE LUMBAR SPINE."
October 31, 2005:
April 22, 2009:
In addition to Mr. Keasley's back problems, he testified at his July 25, 2009 deposition that he is under treatment for kidney problem unrelated to his employment with TMSEL. The treatment includes monthly visits to Dr. Ashkey Gupta and kidney dialysis three times each week. He also testified to having received treatment at University Medical Center for a congenital abnormal heartbeat. Mr. Keasley testified that only his back condition is related to his 1991 on-the-job injury.
In Answers to Interrogatories served on March 14, 2008, Mr. Keasley described his
At his 2008 deposition, Mr. Keasley testified that he helped out at the Urban League Street Academy, near the St. Bernard housing development, when he was living in New Orleans. He was not able to specify the dates he worked, but thought it was in either 2003 or 2004 and part of 2005. He testified that he did not have any expenses in connection with his work. Mr. Keasley's work consisted of sitting with a four-year old child while he did his school work. He worked from eight in the morning
Mr. Keasley testified that he also worked for the Family Helpers organization in New Orleans East for about six months. In that connection, he baby-sat a mentally handicapped child at the Keasley home. Mr. Keasley testified that he was paid for his services by check from the organization and by the child's mother. He took care of the child for about two hours in the afternoon during the school year, and he was paid based on the number of hours the child stayed at Mr. Keasley's home. He verified earnings of $3,504.04 in 2003 and $2,592.55 in 2004. He also testified that he worked for Holy Family School in Lafayette for about four or five months in 2006, with duties and hours similar to his job with the Urban League Street Academy in New Orleans. He stopped working because of continuing problems with his back. He earned something more than two dollars per hour, and was allowed to work at most four hours per day. Mr. Keasley testified that he was compensated for his time and services.
Mr. Keasley's Federal Income Tax Return Form 1040A for 2003 and its attached Form W-2 shows wage income for that year in the amount of $3,504. His Federal Income Tax Return Form 1040EZ for 2004 and its attached Form W-2 show wage income for that year in the amounts of $2,594 and $2,593.55, respectively.
It is clear that Mr. Keasley's benefits were terminated in November of 2001, at which point Dr. Manale had opined he was unable to work because of his work-related back injury. The issue on TMSEL's motion for summary judgment is whether and when Mr. Keasley's employment for the various charities disqualified him from receiving total disability benefits. There is no evidence that Mr. Keasley will be unable to prove by clear and convincing evidence that he was totally disabled, as that phrase is understood in the applicable statute, from November, 2001, until he began his compensated work for the charities. The Internal Revenue forms demonstrate that Mr. Keasley worked for wages in 2003 and 2004. Because the forms do not specify the dates of Mr. Keasley's employment, we refer to the personnel files offered by TMSEL and made part of the record. Mr. Keasley's applied to participate in the Foster Grandparent Program on July 10, 2003, and was examined by a physician on August 15, 2003 as part of his application. The file also contains letters of personal recommendation dated July 21, 2003, August 19, 2003, and July 10, 2003. Mr. Keasley's Health Education Department orientation is dated August 14, 2003, and his file contains a receipt showing that he received his Foster Grandparent Program handbook on August 12, 2003. This record is inconclusive as to the exact day on which he began to work for wages in 2003. Mr. Keasley testified that he evacuated to Lafayette in the aftermath of the August, 2005 levee and floodwall failures in New Orleans, from which we infer that he may be able at trial to prove by clear and convincing evidence that he did not work for wages from sometime in August of 2005 until sometime late in 2006.
Shanese L. Lewis, director of the Lafayette program, by letter dated September 2, 2009, advised TMSEL's counsel that Mr. Keasley was "enrolled as a volunteer from September 25, 2006 through May 29, 2007." His Assignment Plan, indicating what his duties were to be, is dated October 25, 2006. His 2006-2007 Leave Record indicates that he earned eight hours of leave in October, and November of 2006, and in January of 2007. Time sheets show that he was paid $42.40 plus mileage of $11.52 from July 17, 2006 to July 21, 2006, prior to his enrollment. The time sheets record that he worked on September 25 and 26, 2006, and from October 2, 2006 through February 27, 2007 The termination notice, dated May 29, 2007 indicates that he was terminated in compliance with a policy that stipulates that an absence of thirty or more days means that the program could not retain a position for him. The file also contains Dr. Gupta's letter dated April 17, 2007, indicating that Mr. Keasley was then able to return to participate in the program on May 7, 2007.
There is no indication as to the exact date when Mr. Keasley began to work for wages in Lafayette, or the exact date when he last worked. Since he was paid only for those hours when he actually performed services for the program, under the facts of record, there are genuine issues as to when Mr. Keasley began and stopped working for wages in the Lafayette program.
While we have reviewed the reports of Doctors Marrero, Diodene, Ploger, Hoerner, Mimeles, and Bourgeois that were admitted into evidence without objection, we have not considered those unverified statements mentioned in TMSEL's Pre-Trial
Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-31. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La.Code Civ. Proc. art. 966 A. (2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.; La.Code Civ. Proc. art. 966 C. (2).
An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.Code Civ. Proc. art. 967; Townley v. City of Iowa, 97-493, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.
The amended article 966 substantially changed the law of summary judgment. Under the prior jurisprudence, summary judgment was not favored and was to be used only cautiously and sparingly. Under the amended statute, the initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, under La.Code Civ. Proc. art. 966 C., once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Once the mover has properly supported the motion for summary judgment, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.
Argument of counsel and briefs, no matter how artful, are not sufficient to raise a genuine issue of material fact. La.Code Civ. Proc. art. 967; Cox Cable New Orleans, Inc. v. City of New Orleans, 94-2102, p. 4 (La.App. 4 Cir. 11/16/95), 664 So.2d 742, 744. Despite the presence of disputed facts, summary judgment will be granted as a matter of law if the contested facts present no legal issues. Davenport v. Amax Nickel, Inc., 569 So.2d 23, 27 (La.App. 4 Cir.1990).
A fact is material if it is essential to a plaintiff's cause of action under the applicable theory of recovery and without which plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant's ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4th Cir.1992).
H. Alston Johnson, III, in the Louisiana Civil Law Treatise series, notes:
13 La. Civ. L. Treatise, Workers' Compensation Law and Practice § 275 (4th ed.).
The statute also sets forth the relevant burden of proof:
Thus, Mr. Keasley would bear the burden at trial of proving, by clear and convincing evidence, that he is unable to engage in any employment of any nature. See Buxton v. Iowa Police Dep't, 09-0520, p. 21 (La.10/20/09), 23 So.3d 275, 288-89; DeGrasse v. Elevating Boats, Inc., 98-1406, pp. 5-6 (La.App. 4 Cir. 3/10/99), 740 So.2d 660, 663-64.
One of the primary goals of the Louisiana Workers' Compensation Act is to provide protection to workers and to keep the injured employee and his or her family from destitution. In light of the policies behind the Act, the Louisiana Supreme Court has adopted special rules for interpreting its provisions such that to effectuate the remedial policy of the Act, its provisions should construed liberally in favor of the compensation claimant. Breaux v. Hoffpauir, 95-2933, p. 4 (La.5/21/96), 674 So.2d 234, 237, citing Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993).
As this Court noted in Zanca v. Exhibition Contractors Co., 614 So.2d 325, 328 (La.App. 4th Cir.1993), concerning a claim for temporary total disability:
Based on the record presented to the trial court in connection with TMSEL's motion for summary judgment, it is clear that Mr. Keasley will not be able to bear the statutory burden of proof as to parts of the years 2003 and 2004, 2006, and 2007, where the evidence is uncontroverted that he worked for wages. The very strict legislative pronouncement contained in La. R.S. 23:1221 compels us to conclude that Mr. Keasley's efforts to supplement his pension and disability income with the minimal earnings he received during those years precludes his qualifying for permanent total disability during that period. However, it is equally clear that on the record before us, including the various medical reports, there are genuine issues of material facts as to Mr. Keasley's disability status before he re-entered employment for wages in 2003 and after he left such employment in 2007, and to the exact time periods in the interim during which he was ineligible for total disability benefits. Therefore, we affirm the trial court's judgment insofar as it grants summary judgment for the period when it is uncontroverted that Mr. Keasley worked for wages, and remand the case for further proceedings consistent with this opinion.
