70 So. 3d 991
La. Ct. App.2011Background
- Merrill, a Greyhound bus driver, injured her back in a December 2006 fall; Greyhound paid TTD until March 4, 2007 and then discontinued after releasing her to sedentary work, which she declined.
- She disputed the claim in June 2007; trial occurred March 9, 2010; medical witnesses conflicted on return-to-work and linkage between injury and surgery.
- Five doctors treated or examined Merrill; two were insurer-selected examiners; no doctor testified live at trial.
- MRI and subsequent tests showed cervical degenerative changes and disc issues; some doctors attributed symptoms to work injury, others to preexisting degenerative disease.
- OWC dismissed Merrill’s claim, finding the surgery was related to degeneration, not the accident; Merrill appealed pro se, and the court initially reversed, then remanded for briefing on aggravation of a preexisting condition.
- On remand, the court again held that Merrill proved aggravation of a preexisting back condition caused by the accident, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the accident aggravated a preexisting back condition necessitating surgery. | Merrill proved aggravation by preponderance. | Greyhound contested causation and duration of aggravation. | Yes; Merrill proved aggravation by a preponderance. |
| Applicability and burden of the presumption of causation when a preexisting condition is involved. | Presumption shifts burden to employer to prove no aggravation. | Employer may rebut with evidence showing no aggravation. | Presumption applicable; Greyhound failed to rebut. |
| Whether the OWC erred in dismissing the claim on remand. | Trial record supports affirmative award of benefits; aggravation proven. | OWC properly dismissed given conflicting evidence. | Reversed; remanded for further proceedings. |
Key Cases Cited
- Dellavalle v. Dynegy Midstream Services, 848 So.2d 716 (La. App. 4 Cir. 2003) (liberal interpretation of workers' compensation benefitted worker)
- Bynum v. Capital City Press, Inc., 676 So.2d 582 (La. 1996) (liberal construction in workers' comp cases; causation burden shift)
- Peveto v. WHC Contractors, 630 So.2d 689 (La. 1994) (presumption of causation when preexisting condition aggravated)
- Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320 (La. 1985) (presumption of causation; employer bears burden to rebut)
- Feingerts v. American Cas. Co. of Reading, 34 So.3d 358 (La. App. 4 Cir. 2010) (causation with preexisting condition requires showing accident caused disability)
- Buxton v. Iowa Police Department, 23 So.3d 275 (La. 2009) (elements of causation under La. R.S. 23:1031)
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (credibility and fact-finding deference on appeal)
- Dean v. Southmark Construction, 879 So.2d 112 (La. 2004) (manifest error standard for factual findings)
- Alexander v. Pellerin Marble & Granite, 630 So.2d 706 (La. 1994) (framework for appellate review of factual findings)
- Banks v. Industrial Roofing & Sheet Metal Works, Inc., 696 So.2d 551 (La. 1997) (appellate deference to credibility determinations)