Opinion
No. 8129.
June 30, 1981. Rehearing Denied August 13, 1981.
APPEAL FROM 27TH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY, STATE OF LOUISIANA, HONORABLE H. GARLAND PAVY, J.
Dubuisson Dubuisson, James G. Dubuisson, Opelousas, for defendant-appellant.
Guillory, McGee, Mayeux Fontenot, Donald L. Mayeux, Eunice, for plaintiff-appellee.
Before CULPEPPER, DOMENGEAUX, GUIDRY, SWIFT and LABORDE, JJ.
This is a workmen's compensation case. Plaintiff had completed a day's work as a common laborer and was walking toward the exit of the plant when he suddenly became dizzy and fainted. The subsequent diagnosis by medical experts was syncope (fainting) caused by aortic valve stenosis. The district judge found the syncope was job related and caused plaintiff's present total and permanent disability. Defendant appealed. Plaintiff answered the appeal, seeking penalties and attorney's fees, which were not awarded by the district judge.
The substantial issue on appeal is whether there was a causal connection between the accident and the disability.
The evidence shows that plaintiff is an uneducated male, 42 years of age, who has worked all of his life as a common laborer. On December 15, 1978, he was using a pick and shovel to dig excavations for concrete slabs. At quitting time, about 3:30 P.M., he put his tools in the shed and was walking toward the plant exit when he suddenly became dizzy and short of breath and blacked out. Co-employees immediately took him to Baton Rouge General Hospital, where he was placed in intensive care and seen by Dr. Boyd E. Helm, a cardiologist of Baton Rouge.
Dr. Helm's diagnosis was syncope (fainting) caused by aortic valve stenosis. The doctor explained plaintiff had pre-existing aortic valve disease which could have been congenital or could have been caused by such things as rheumatic fever, syphilis or bacterial infections. Over a period of years, calcification of the defective valve progressed causing the valve to become stenosed or constricted. This meant that less and less blood could leave the valve, which is located in the upper left side of the heart. It was Dr. Helm's opinion that by the day of the accident, December 15, 1978, the valve had become stenosed to the extent that on physical exertion and increased demands on the heart for blood, an insufficient amount of blood could be pumped through the valve. Moreover, some of the blood that did leave the valve may have flowed back into the heart, as it should not do. This meant that an insufficient amount of blood reached plaintiff's brain, resulting in the symptoms of dizziness and passing out.
Plaintiff remained in the hospital in intensive care from December 15, 1978, to December 19, 1978, during which time Dr. Helm administered the various examinations and tests from which he diagnosed aortic valve stenosis. He recommended plaintiff undergo a catheterization of the heart. In this procedure a tube is inserted through a vessel into the heart and a dye is used to determine the amount of valve disease, the purpose being to determine whether heart surgery is necessary to replace the valve, and also to evaluate his coronary arteries to see whether he needed any bypasses. Dr. Helm testified he explained to plaintiff that on the basis of his diagnosis of aortic valve stenosis, which had progressed to the point of syncope on exertion, the prognosis was that the stenosis would rapidly progress and death would probably occur within five years unless the valve was replaced. Despite this advice, plaintiff never did submit to the catheterization.
When plaintiff left the hospital on December 19, 1978, he agreed to return on December 26, 1978, for the catheterization. However, on this later date he refused to undergo the catheterization. Instead, he returned to his home in Ville Platte, where he saw Dr. Charles E. Fontenot, a general practitioner, in February of 1979, and Dr. Donald Francis Gremillion, an internal medicine specialist of Opelousas, for complaints of dizziness, chest pain, shortness of breath, and weakness. The testimony of these two latter physicians as to their examinations and opinions will be discussed later. Essentially, they made the same diagnosis and prognosis as Dr. Helm.
All three physicians testified the fainting spell on December 15, 1978, was probably causally related to the strenuous physical labor performed by plaintiff that day. Furthermore, all three were of the opinion that plaintiff is now permanently and totally disabled from performing strenuous physical labor. Under this expert medical testimony, defendant concedes that plaintiff suffered a job related accident on December 15, 1978, and that he is presently disabled. However, defendant contends the expert medical testimony of all three of the doctors shows plaintiff suffered pre-existing aortic valve stenosis and that the accident, that is the fainting spell on December 15, 1978, did not cause any physical change in plaintiff's body which worsened the pre-existing condition.
Defendant concedes that the applicable rule of law is set out in Haughton v. Fireman's Fund American Insurance Companies, 355 So.2d 927 (La. 1978) as follows:
"When there is an accident and a resulting disability without any intervening cause, it is presumed that the accident caused the disability. This simple guide plainly stated in Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969), we affirmed in Johnson v. The Travelers Insurance Co., 284 So.2d 888 (La. 1973) and reaffirmed in Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La. 1974). The presumption is not irrebuttable, but its effect is to shift the burden of proof to the defendant."
Also, defendant calls our attention to the following rule stated in the final opinion on rehearing in Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 at page 827 page 827 (1969):
"In a case such as the present one, where there is proof of an accident and of a following disability without any intervening cause, it is presumed that the accident caused the disability. The criterion for causal connection between the accident and the disability is: Has the accident changed the plaintiff's condition so as to render him disabled and unfit for his former employment?"
See also the recent case of Rowland v. Continental Oil Company, Inc., 374 So.2d 734 (La.App. 3rd Cir. 1979) in which we held the presumption established in Bertrand and followed in Haughton is not that the accident was caused by job related activities. The accident must still be proved by a preponderance of the evidence without a presumption. The Bertrand presumption is that where a job related accident is proved, and there is ensuing disability, the disability is presumed to have been caused by the accident, absent an intervening cause. However, we pointed out in Rowland that the Bertrand presumption, reaffirmed in Haughton, is rebuttable.
Applying these rules to the present case, we find a job related accident and disability were proved. Thus, it is presumed the accident caused the disability, there being no evidence of any intervening cause. This shifted the burden of proof to the defendant to rebut the presumption. We conclude that defendant has sustained this burden. The expert medical testimony is unanimous to the effect that plaintiff's aortic valve disease was not caused nor made worse by his work activities on December 15, 1978.
All three physicians who testified were called as witness for the plaintiff. The principal expert is Dr. Helm, the treating physician and a specialist in cardiology, which field covers the present issues. On the question of whether the aortic valve stenosis was caused by hard physical labor either on or before the day of the accident, Dr. Helm testified:
"Q. All right. The aortic stenosis itself would not have been caused by the hard work. Right, doctor?
A. No, it wouldn't be.
Q. Is this a symptom in the heart that builds up over a period of time?
A. The aortic stenosis?
Q. Not a symptom, a condition of the heart that builds up over a period of time?
A. Yes. It's a condition of the heart that builds up over a period of time."
Also, Dr. Charles Fontenot, the general practitioner in Ville Platte, testified on this issue:
"Q. All right. So its not something that just manifests itself by strong physical exertion one particular day?
A. No, No, it wouldn't be caused by working hard. Aortic stenosis is not caused by work.
Q. Now, aortic stenosis, the causes, that's something that develops over a period of time?
A. Right."
* * * * * *
"Q. * * * Doctor, you also testified that you had no doubt that this condition pre-existed December 15, 1978, by some long period of time?
A. Right.
Q. And you also testified, didn't you, Doctor, its your opinion work had nothing to do with the cause of this condition?
A. Right."
Dr. Donald Gremillion, the internal medicine specialist in Opelousas testified:
"Q. I want to ask you this, Doctor: He is disabled now due to a heart pathology which is known as aortic stenosis? Is that correct?
A. Yes, sir.
Q. An aortic stenosis is not caused by hard work?
A. No, sir. The etiology is not due to hard — to labor. Not aortic stenosis, no, sir.
Q. Doctor, isn't it also fair to say that aortic stenosis progresses in what the doctors sometimes call 'clinical silence' for many years?
A. Yes, sir.
Q. In other words, the man has it and he doesn't know it, and its a condition which progressively gets worse, and then some symptom is going to occur to tell him that he has it?
A. That's right. Yes, sir.
Q. That symptom could occur whether you are working or not working?
A. That's right.
Q. When that symptom does occur, then in all probability, the aortic stenosis has gotten to the stage where the man had best take care of himself and not perform hard labor?
A. That's my opinion, sir."
From the above quoted testimony of all three of the expert medical witnesses in this case, we feel there is no question the pre-existing aortic valve stenosis was not caused by physical labor performed by plaintiff on or before the day of the accident.
The next question is whether the syncope (fainting) on December 15, 1978, caused the pre-existing aortic stenosis to become worse than it was before that date. Here again, all three doctors testified it did not. Dr. Helm stated:
"Q. Do you think that because of this incident, and we can call it an accident if you want to, on December 15, 1978, that that condition was worsened or aggravated?
A. No.
Q. I think that you have committed yourself in writing to the fact that it was not aggravated by this condition — this incident.
A. That's correct. I mean the aortic stenosis didn't get any worse because of these symptoms."
Dr. Fontenot testified on this issue:
"Q. But my question is, merely because he had the hard work, which resulted in the syncope or fainting spell, did not aggravate permanently the aortic stenosis?
A. No, its an aggressive (progressive ?) disease which is gradually worsened with time.
Q. In other words, Doctor, this man in the past may not have realized it, may have had dizziness . . .
A. Right.
Q. . . . or dyspnea or shortness of breath, or any of the other common symptoms . . .
A. Right.
Q. . . . of aortic stenosis, and may not have even realized it?
A. That's right.
Q. This was just a dramatic symptom of the condition?
A. That is right."
Dr. Gremillion also testified on this issue:
"Q. The question I want to ask you is whether or not that fainting aggravated the aortic stenosis?
A. Oh, no, sir."
Thus, all three of the doctors testified plaintiff's pre-existing aortic valve disease was not aggravated or made worse by the fainting spell on December 15, 1978. This fainting spell was only a symptom which made the doctors aware of the pre-existing heart disease and that it had progressed to the point that it was disabling.
In a supplemental brief filed in this court after oral argument, counsel for plaintiff, in an attempt to show there is some expert medical testimony in the record that the fainting spell worsened plaintiff's pre-existing physical condition, quotes the following by Dr. Helm under redirect examination by plaintiff.
"Q. Alright. Well, is there a change — if he is not having heart pain and he obviously wasn't if he had been working regularly, you know, like the history does show and prove, then that means he must have been getting enough blood to the heart as compared to now where he is having this heart pain and he must not be getting enough blood to the heart. Would that not be a change?
A. Well, it's a change. Yes, it's a change. He has — I think his symptoms have markedly increased and there has been a change in his symptoms.
Q. Since the accident on December 15th?
A. There is a change in his symptomatology and he has worsened since December 15th."
We have carefully studied the entire testimony by Dr. Helm. The excerpt quoted by plaintiff in his supplemental brief does not change nor conflict with the opinion expressed by Dr. Helm several times that the fainting spell of December 15, 1978 did not worsen plaintiff's pre-existing heart disease. All that Dr. Helm is saying in the portion of his testimony quoted by plaintiff is that since the December 15, 1978 fainting spell plaintiff's symptoms have increased markedly. In other portions of his testimony, Dr. Helm explained that once the calcification of the leaflets of the aortic valve has progressed to the point that there is a fainting spell from insufficient blood flow to the brain, the disease then usually progresses rapidly. Also, blood supply will probably become insufficient for the coronary arteries, resulting in angina (chest pain). Finally, death will usually result within five years unless the defective valve is replaced.
Counsel for plaintiff also argues the question of causal connection between the accident and the disability is an issue of fact as to which the trial judge should not be reversed on appeal unless he was clearly wrong. In the present case, we conclude the trial judge was clearly wrong in finding as a fact that the presumption of causal connection between the accident and the disability was not rebutted by the unanimous highly qualified expert medical opinion to the contrary.
Malone and Johnson, Workers' Compensation, 2nd Edition, Section 257, at pages 564-565, makes the following observation regarding appellate review:
"Especially on the issue of whether there was an accident event are appellate courts slow to reverse the decision of the trial court. The occurrence of an accident is usually proven by oral testimony, and the credibility of the witnesses is often the all-important factor. The trial judge, who heard the witnesses, and has had an opportunity to observe them, is often in a better position to weigh credibility than an appellate court reading from the record.
Expert medical opinion, however, may readily be weighed by recourse to the record, and since medical testimony is an important factor in determining causal relation between accident and disability, the appellate court is somewhat more ready to reach an independent decision on this question than on the question of the occurrence of an accident event, though reversals are still infrequent."
In the present case, we conclude the trial judge was manifestly erroneous in finding a causal relation between the accident and the disability. As stated above, all of the expert medical opinion, including that of the highly qualified treating physician specialist, Dr. Helm, a specialist in internal medicine, Dr. Gremillion, and plaintiff's own physician at his home in Ville Platte, Dr. Fontenot, is clear and unequivocal that there was no causal relation between the fainting spell on December 15, 1978, and plaintiff's present disability.
For the reasons assigned, the judgment appealed is reversed and set aside. It now ordered, adjudged, and decreed that plaintiff's suit be dismissed and that he pay all costs in the trial and appellate courts.
REVERSED AND RENDERED
DOMENGEAUX and LABORDE, JJ., dissent and assign reasons.
My esteemed colleagues of the majority have made a skillful judicial end-run which completely side steps and evades the blocks and tackles of the Bertrand case. I suggest that the only way that this reversal will stand is if the Louisiana Supreme Court overrules Bertrand.
The trial judge, without giving reasons therefor, concluded that plaintiff "has made out his case on the question of disability and causal connection with the employment and should be awarded total and permanent disability."
On this appeal, two issues confront us: (1) Whether there is any causal connection between the accident of December 15, 1978, and the disability of which plaintiff complains; (2) Should plaintiff be awarded penalties and attorney's fees?
CAUSALITY
Prior to plaintiff's accident of December 15, 1978, he had never had chest pains, nor fainted, and as far as he or anyone else was concerned, was in good health.
Doctor Helm makes an inconclusive and unclear reference to a heart murmur which plaintiff told him was discovered when he was examined for the Army. The record otherwise does not show when this was. Obviously it was many years before the accident of December 15, 1978.
All physicians in this case agree that plaintiff suffers from an aortic stenosis. Simply stated, that condition exists when a heart valve becomes stenosed or constricted. With this condition less blood can leave the heart. A person with such a condition could have problems such as passing out, suffering from shortness of breath, or chest pains. This aortic insufficiency means that the valve is distorted and some of the blood that does leave the heart flows back into the heart — an event which should not occur.
All doctors agree that plaintiff was possessed of the aortic stenosis for many years prior to the accident of December 15, 1978. They also all agree that such a condition is usually congenital and that plaintiff's condition was probably congenital. However, as all doctors state, an aortic stenosis can be caused from numerous other phenomena such as rheumatic fever or calcium in the aorta.
As an elementary proposition the doctors state that hard work or exertion cannot cause the condition of aortic stenosis; however, hard work or exertion can and does cause the onset of the symptoms of the disease, such as dizziness and fainting.
In this case, all physicians agree that the plaintiff is totally disabled. It is also agreed that the accident experienced by plaintiff on December 15, 1978, occurred while he was in the course and scope of his employment.
Plaintiff, since December 15, 1978, has been under numerous medications, including nitroglycerin for decreasing blood pressure, and he suffers frequently and spasmodically with chest pains. All of the doctors involved recommended that he remain quiet and engage in no exertion at all. The medical evidence glaringly brings out the fact that once symptoms such as chest pains and syncope (fainting) develop on one possessed of aortic stenosis, such symptoms can be related to impending death. Once chest pains develop many such people die within two years, and when fainting develops many of them die within five years. Unquestionably, plaintiff cannot exert himself without endangering his life.
Doctor Helm additionally feels that depending upon the results of any future catheterization on plaintiff, he could be a subject for heart surgery which, depending upon the circumstances, could improve plaintiff's condition and possibly allow him to perform some limited non-laborious work.
Plaintiff's case fits the rationale set out by the Louisiana Supreme Court in Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969). The plaintiff in Bertrand was a 57 year old laborer, and while performing heavy work in the sun while on the job he became weak, dizzy, and almost fainted. His condition was diagnosed as a nodal tacyhcardia, a conduction defect impairing the heart's responses to impulses regulating its beat. Upon his doctor's advice he rested for some months, went back to work, and while on the job blacked out, and fell to his knees, although he did not lose consciousness. Upon subsequent examination his doctor advised him to stop working because his heart condition was incompatible with his work. The doctor thought that continued work in the hot sun might bring about a full blown coronary and plaintiff's death. The Supreme Court recognized a causal connection between the Bertrand plaintiff's second accident and his disability and declared him to be totally and permanently disabled.
The Bertrand plaintiff had a pre-existing condition known as arteriosclerosis, which is a hardening and clogging of the arteries near the heart. The plaintiff in this case had a stenosed heart valve.
Doctor Helm, whose analogy of a stenosed heart valve and clogged arteries was agreed upon by Doctors Gremillion and Fontenot, testified as follows:
"Q. Now, doctor, do you think that in your opinion that this type of condition Mr. Guillory has, the manifestation of it, the hard work that requires the blood — the heart to work harder and to pump blood and not enough getting to the head, is that like a man who has clogged arteries that might be working hard one day and not enough blood getting through these arteries and then causing chest pains? Is this a correlation of symptoms?
A. Yes. . . .
Q. Is this a — how would you compare this?
A. The mechanics are the same.
Q. The problem is still you have the chest pains and dizziness because not enough blood is getting where it's suppose to be getting. Right?
A. Correct.
Q. Whether you have a defective valve or a clogged artery, you still have the problem of blood not flowing like it should be?
A. Those are very similar situations. That's correct. TR (R. 46-47)"
Arteriosclerosis or clogging of the arteries, is not caused by hard work, just as aortic stenosis is not caused by hard work. But when the accident (exertion) manifests the symptoms, i.e. chest pains, fainting, dizziness, passing out, then there is a causal connection.
Defendant suggests that inasmuch as the fainting experienced by the plaintiff herein did not make his aortic stenosis worse there is consequently no causal relationship between plaintiff's condition and the accident. If plaintiff herein would have had arteriosclerosis, as the plaintiff in Bertrand had, the hard work or fainting would not have made the clogging of the arteries worse. The hard work would have only manifested the symptoms or showed him that he had this problem. In Bertrand the plaintiff therein had a disease which developed slowly over a period of years. It was a degenerative condition involving a hardening of the arteries which supply blood to the heart. The court in Bertrand stated:
"In a case such as the present one, where there is proof of an accident and of a following disability without any intervening cause, it is presumed that the accident caused the disability. The criterion for causal connection between the accident and the disability is: Has the accident changed the plaintiff's condition so as to render him disabled and unfit for his former employment?
After the first accident which caused coronary insufficiency or 'nodal tachycardia' the plaintiff was unable to work for a little over two months. Then with specific medical approval he returned to his job and actually performed the required hard physical labor for nine months, apparently asymptomatic of either disease or disability. All medical authority would now refuse to allow the plaintiff to return to work following, and because of, the second episode of tachycardia or angina pectoris. Not only do we presume but we must deduce that the second episode produced some change in the body of the plaintiff.
Medical experts are unable to determine or state the cause, the time of onset, the rate of or reason for acceleration or regression of arteriosclerosis or coronary sclerosis. A plaintiff cannot be required to submit more proof than is here offered that he has suffered disability by reason of a causally connected accident when any additional proof must come from a science whose practitioners admittedly lack complete and exact knowledge of many aspects of the disabling disease and whose views are often divergent and vacillating.
Seals v. Potlatch Forests, Inc., supra [ 151 So.2d 587 (La.App.)] narrowly defined and overnicely refined the issue before the court. The legal criterion in compensation cases involving heart disease should be whether the accident caused a change in the employee's physical condition which is disabling, and not whether the accident changed the diseased organ of the employee. The residual condition from an accidental injury which substantially increases the possibility of recurrence of a disabling or deathdealing episode is legally disabling and is compensable under our Workmen's Compensation Law.
Before this accident the plaintiff, though suffering from a cardiac or cardiovascular disease, exhibited no disabling symptoms of the disease, and adequately met the extreme physical demands of his employment. He was working with medical approval and with his employer's full knowledge of his existing dormant disease. He has established an accident and his inability to return to work. Medical opinion recognizes that an accident (exertion) caused some kind of injury, that the plaintiff is unable to return to work because of disability, and that the accident manifested the disability. We must therefore conclude that the accident has caused the termination of employment because of disability." (Emphasis added).
By using specific responses from Doctor helm and the other two physicians to the effect that the "aortic stenosis" itself would not have been caused by plaintiff's exertion in this case, the majority opinion attempts to show that the defendants have successfully rebutted the presumption that the accident herein caused the disability. The majority misses the point. The overall testimony of Doctor Helm and the other physicians show unquestionably that the accident involved in this case changed the plaintiff's physical condition, consequently causing him to become permanently disabled. The following responses of Doctor Helm cannot be overlooked; they speak for themselves; the accident in this case did not change the stenosis (which no one claims), but changed plaintiff's symptomatology and worsened his condition:
"Q. Alright. Well, is there a change — if he is not having heart pain and he obviously wasn't if he had been working regularly, you know, like the history does show and prove, then that means he must have been getting enough blood to the heart as compared to now where he is having this heart pain and he must not be getting enough blood to the heart. Would that not be a change?
A. Well, it's a change. Yes, it's a change. He has — I think his symptoms have markedly increased and there has been a change in his symptoms.
Q. Since the accident on December 15th?
A. There is a change in his symptomatology and he has worsened since December 15th."
Plaintiff here meets all of the requirements set out by the Supreme Court in Bertrand. He was able to and did perform strenuous work for the past 10 to 13 years. He was in good health the day before the morning of the accident. Since the accident he is totally and permanently disabled; in fact, any exertion at all may result in his death. The accident did not change plaintiff's aortic stenosis, but it did change his physical condition which renders him disabled. His residual condition from the accident has substantially increased the possibility of a recurrence of a death-dealing episode, and consequently he is entitled to compensation. Finally, defendants have completely failed to overcome or rebut any presumptions required in Haughton and Rowland.
Appellant suggests that plaintiff herein is not entitled to recover based on the case of Cormier v. Aetna Insurance Company, 368 So.2d 461 (La.App. 3rd Cir. 1979). Cormier is readily distinguishable. Therein, the plaintiff, while on the job, sneezed and thereafter experienced chest pains, numbness and dizziness. His condition was subsequently diagnosed as an atrial septial defect, otherwise described as a hole in the wall of the heart. The medical evidence was to the effect that there was no causal relationship between Cormier's job and his heart condition. It was the sneezing which caused him to experience the chest pains, numbness and dizziness and not the exertion and stress from work.
I would conclude that the trial judge was correct in awarding plaintiff total and permanent disability benefits.
PENALTIES AND ATTORNEY'S FEES
The trial judge did not pass upon plaintiff's claim for penalties and attorney's fees. I conclude that these sanctions should be applied.
The defendant-insurer paid the bulk of plaintiff's medical bills, but denied its obligation to plaintiff for compensation benefits. (The record does not disclose why one was paid and not the other.) Appellant contends that there was no causal connection between the accident of December 15, 1978, and plaintiff's subsequent and continuing disability. As shown in the main body of this dissenting opinion, I disagree. This case fits the Bertrand case like a glove. Defendant-insurer in this case is presumed to have known the holding in the Bertrand case and under the holding of that case, there was not a serious issue as to a compensable accident in the case at hand. The purpose of the penalty provision of the workmen's compensation statute is to discourage an attitude of indifference to the injured employee's condition. Moreau v. Houston General Insurance Company, 386 So.2d 151 (La.App. 3rd Cir. 1980). I would conclude that the insurer's failure to pay plaintiff compensation under the circumstances herein was arbitrary, capricious, and without probable cause, and accordingly, would proceed under the provisions of La.R.S. 22:658 to award attorney fees and penalties.
For all of the above reasons I disagree with this reversal by the majority, and respectfully dissent therefrom.
I cannot distinguish the case of Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969) from the case under consideration. For that reason and for the reasons assigned by Judge Domengeaux in his dissenting opinion which I adopt as my own, I would affirm the trial court finding that plaintiff is entitled to total and permanent disability benefits. I would also award plaintiff penalties and attorney's fees. Moreau v. Houston General Insurance Company, 386 So.2d 151 (La.App. 3rd Cir. 1980).
I respectfully dissent.