Roszell v. INA of Texas, Inc.

Citations: 499 So. 2d 659; 1986 La. App. LEXIS 8650Docket: No. 86-35

Court: Louisiana Court of Appeal; December 9, 1986; Louisiana; State Appellate Court

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Mark Roszell filed a worker’s compensation suit against his employer, Mapco Petroleum, Inc., and its insurance carrier, INA of Texas, Inc., seeking benefits, penalties, and attorney’s fees. The trial court found Roszell to be totally and permanently disabled as of July 29, 1983, awarding him weekly benefits, all medical expenses, legal interest on overdue sums, a 12% penalty on past due benefits, and $5,000 in attorney’s fees, citing INA's arbitrary claim handling. Defendants appealed the November 26, 1985 judgment, contesting the trial court's determination of total and permanent disability.

Roszell claimed to have injured his left knee and back while carrying a case of beer on July 19, 1983. Employed as a night cashier, he had additional responsibilities, including stocking shelves and cleaning. He reported that his heaviest lifting involved 20-pound cases of beer, although he later clarified that lighter six- and eight-packs were more common. At 21 years old and with a high school education, he has not worked or earned wages since the accident. The Office of Worker’s Compensation recommended temporary total benefits from July 20, 1983, to April 15, 1985, which the defendants complied with by paying $9,522.97 in weekly benefits and $11,236.15 in medical expenses, along with $645 in travel reimbursements. 

Defendants ceased weekly compensation on April 15, 1985, based on medical evaluations by Dr. R.J. Beurlot, who later recommended full work activity. Initial treatment by Dr. McCann noted hypersensitivity in Roszell’s lower back and knee, diagnosing back and ligament strain, and providing various treatments, including a knee splint. However, Roszell reported no improvement in his back and admitted to not using the splint. Dr. McCann referred him to Dr. Beurlot but did not prescribe further pain medication after December 14, 1984.

Dr. McCann concluded that the plaintiff did not have a permanent defect, although further treatment was necessary based on the plaintiff's subjective complaints. The plaintiff visited Dr. Bruce Razza, an orthopedic surgeon, on March 21, 1984. Dr. Razza diagnosed the plaintiff with a congenital knee defect (1 degree chondromalacia) and noted a grinding noise in the left kneecap, while x-rays showed no signs of subluxation or dislocation. A congenital anomaly in the back was identified, causing minor issues due to bone fusion, leading Dr. Razza to assign a 5% to 10% partial permanent disability to the plaintiff's overall condition. He indicated that the back was stable but acknowledged that the plaintiff's weight aggravated the knee condition. Dr. Razza could not assign disability to the knee without the plaintiff undergoing orthoscopic surgery, which the plaintiff repeatedly refused. Dr. Razza anticipated that, had the surgery been performed, the plaintiff would have achieved maximum medical improvement by October 24, 1985. Throughout treatment, the plaintiff's knee improved, but there was no significant change in his back condition.

Dr. Beurlot, another orthopedic surgeon, found no impairment from the back condition but noted some impairment in the left knee, attributing psychological impairment to the plaintiff's fear of reinjury. He recommended the use of a knee brace and believed the plaintiff could return to his previous job as a cashier. The plaintiff testified that a knee subluxation occurred only once without recurrence, and no physician confirmed it due to the lack of swelling or discoloration.

Under the amended worker’s compensation statutes, the burden of proof for total and permanent disability requires clear and convincing evidence that the claimant is unable to engage in any employment, regardless of type or conditions. The trial court's award of total and permanent disability benefits to the plaintiff was deemed erroneous, as the plaintiff failed to meet the required burden of proof as defined in LSA-R.S. 23:1221.

Medical experts concluded that the plaintiff could work with specific restrictions: no heavy lifting over 30 pounds, limited time sitting or standing, and the use of a knee brace. Despite the plaintiff's claims of substantial pain affecting work consistency, he failed to demonstrate that this pain rendered him incapable of any employment. Dr. Bruce Razza testified that the plaintiff's knee condition would not prevent him from working as a cashier, and his back condition was stable. In *Pool v. G.N. Batteries, Inc.*, the court affirmed that an injured employee could establish a compensable accident through credible testimony supported by corroborating evidence. The trial judge's findings on credibility were upheld. 

Furthermore, total permanent disability cannot be declared without evaluating rehabilitation options or during an active rehabilitation program, which allows for temporary total disability benefits. Although medical testimony indicated the plaintiff was totally disabled at trial, Dr. Joffrion acknowledged potential future work capabilities. The absence of a rehabilitation evaluation prevents a finding of total permanent disability. Previous case law, such as *Brewster v. Manville Forest Products Corp.*, indicated that if a plaintiff's condition is unstable and further medical intervention is needed, the disability would be considered temporary. 

Additionally, legislation has eliminated the odd-lot doctrine and the working-in-pain doctrine, requiring plaintiffs to prove an inability to engage in any employment, regardless of type or conditions. Pain experienced during work does not affect the determination of total permanent disability unless it can be shown to physically incapacitate the employee from all work.

The plaintiff in Gaspard was awarded supplemental earnings benefits due to corroboration of her pain and disability claims by her mother. In contrast, Mr. Roszell presented no supporting evidence for his complaints of pain or unemployability, failing to demonstrate that he was totally and permanently disabled as defined by statute. Medical experts, including those for the plaintiff, indicated he could engage in limited employment, avoiding heavy lifting and prolonged periods of immobility.

The court found the record filled with inconsistencies regarding the plaintiff's weight and unsubstantiated medical complaints about his knee issues. Notably, there was no corroborating testimony for his claims, and he was alone during the accident. Post-accident, he made no efforts to seek employment, despite having various work experiences before the incident, indicating potential capabilities for different jobs.

Further discrepancies arose from testimony about the selection of medical professionals. The plaintiff's new attorney canceled an initial orthopedic consultation, and he failed to attend multiple scheduled visits with Dr. Beurlot. Although Dr. McCann prescribed a knee splint, the plaintiff admitted he did not wear it, and he neglected prescribed physical therapy. After ceasing treatment with Dr. McCann due to a medication refill refusal, he later refused recommended surgery from Dr. Razza. The trial court's judgment was reversed, denying further benefits to the plaintiff based on these findings.

Knee exercises and a knee and back brace were recommended, but the plaintiff informed Dr. Razza in July 1984 that he would not wear the back brace. Following the termination of his weekly worker’s compensation benefits, he decided to undergo diagnostic testing for his back. The findings indicated that he only had a congenital anomaly in his low back and left knee, which could have been treated effectively with medication and physical therapy—treatment the plaintiff refused. The evidence suggested that with the use of a knee brace, the plaintiff could have returned to work for psychological reasons. Consequently, the plaintiff failed to substantiate his claims of pain or disability and did not prove entitlement to additional worker’s compensation benefits. The trial court’s judgment was reversed, and the plaintiff’s suit was dismissed, with costs assessed against him. A prior written opinion noted inconsistencies regarding the dates of the plaintiff's injury and medical visits, as he had filed suit claiming the accident occurred on or about July 29, 1983, while also stating the injury date as July 19, 1983.