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Strother v. City of Marksville - Police Dep't

Court of Appeal of Louisiana, Third Circuit

February 11, 2015

MARCUS STROTHER
v.
CITY OF MARKSVILLE - POLICE DEPARTMENT

Page 1080

APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 2, PARISH OF AVOYELLES, NO. 11-03914. JAMES L. BRADDOCK, WORKERS' COMPENSATION JUDGE.

Christopher R. Philipp, Law Office of Christopher R. Philipp, Lafayette, Louisiana, Counsel for Defendant/Appellant: City of Marksville - Police Department.

Anthony F. Salario, Salario Law Firm, LLC, Marksville, Louisiana, Counsel for Plaintiff/Appellee: Marcus Strother.

Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery, Judges. Conery, J., concurs in part and dissents in part and assigns reasons.

OPINION

Page 1081

[14-581 La.App. 3 Cir. 1] KEATY, Judge.

Employer appeals a judgment rendered by the workers' compensation judge (WCJ) in favor of the claimant, its former employee. We affirm.

FACTS AND PROCEDURAL HISTORY

The facts in this matter are not in dispute. Marcus Anthony Strother applied for a job with the City of Marksville Police Department (the City) on October 25, 2010. According to the minutes from a December 14, 2010 special meeting of the Mayor and Board of Aldermen, Strother was appointed as a patrol officer for the City. He submitted to a pre-employment physical with family practice physician Dr. Vincent Goux, during which he disclosed that he had previously undergone a lumbar facet fusion. On February 15, 2011, Strother injured his lower back while boxing during a training exercise at the police academy, and he sought treatment at the Avoyelles Hospital Emergency Room. He continued to treat with his choice of physician, Dr. Bryan McCann, a family practitioner, until he was returned to full duty after an April 4, 2011 office visit. Thereafter, he returned to work at the police department where he was assigned to light duty/office work. The City terminated Strother, who was a probationary cadet, on May 11, 2011, after it learned that he had undergone a low-back facet fusion surgery as the result of an injury he incurred prior to his employment on the police force. Thereafter, the City did not provide Strother with any additional workers' compensation benefits.

Strother filed a Form 1008 Disputed Claim for Compensation against the City on May 26, 2011, alleging that he was discharged and his worker's compensation benefits were arbitrarily and capriciously terminated following his training injury. He sought penalties and attorney fees against the City for its termination of his indemnity benefits and its failure to approve medical treatment.

[14-581 La.App. 3 Cir. 2] On January 17, 2012, Strother filed a motion to consolidate this matter with a 1008 he had filed against the State of Louisiana, Avoyelles Correctional Center (the ACC) involving an injury he sustained on May 26, 2009,[1] on the basis that both actions were related to the same injury. The WCJ signed an order consolidating the two matters on February 6, 2012.[2] We note, however, no copy of the 1008 Strother filed regarding his claims against the ACC appears in the record on appeal nor in the exhibits filed at the trial of this matter. According to Strother's trial testimony, he was injured on May 26, 2009, when a horse that he was riding in conjunction with his duties as a field officer at the ACC, a state prison, got spooked and bucked, causing his back to " pop." He was treated by Dr. Lawrence Drerup, a neurosurgeon, and eventually underwent a bilateral facet fusion at L3-4 and L4-5 on May 26, 2010. Dr. Drerup released Strother to return to work on October 12, 2010, at which time Strother had complaints of intermittent mild low-back pain/achiness.

The City filed a supplemental and amending answer and cross claim on May 22, 2013, alleging that in the event Strother

Page 1082

was found to be entitled to any additional workers' compensation disability benefits and medical treatment as a result of the February 15, 2011 accident, the City would be entitled to indemnity and/or contribution from the ACC and to a credit for the disability benefits paid to Strother by the ACC in settlement of his claim against it due to the solidary liability between them as Strother's employers. On July 1, 2013, Strother and the ACC filed and the WCJ signed an order approving a joint petition to compromise [14-581 La.App. 3 Cir. 3] wherein Strother agreed to accept $25,000.00 to settle his claims arising out of his May 26, 2009 injury while employed at the ACC. Strother's rights to proceed against the City were specifically reserved in the settlement order.

Although it had filed a pre-trial statement before this matter was consolidated with the ACC matter, the City filed a second supplemental pre-trial statement wherein it stated that an issue to be litigated at trial was whether any additional benefits found to be owed to Strother by it should be reduced by Strother's settlement with the ACC because of their solidarity liability to him. Strother then filed a supplemental pre-trial memorandum wherein he claimed that the medical evidence proved that the injury he suffered while working for the City was " a separate and distinct injury from his prior injury" such that " the burden for payment of [any additional] benefits should be found to fall squarely on the City."

Trial took place on November 27, 2013, after which the matter was taken under advisement and the WCJ requested that the parties file post-trial briefs. Oral judgment was rendered on February 18, 2014, and a written judgment was signed on March 13, 2014, in favor of Strother and against the City, ordering the City to:

1) reinstate payment of Temporary Total Disability Benefits (TTDs) to Strother retroactive from the date of his appointment with Dr. Lawrence Drerup on April 10, 2012;
2) pay all unpaid medical expenses incurred on behalf of Strother, including but not limited to those incurred with Dr. McCann on December 7, 2011, January 30, 2012, and March 26, 2012, along with any other related medical expenses;
3) reinstate payment of Strother's medical benefits, including the physical therapy prescribed by Dr. Drerup and any other reasonable and necessary medical treatment prescribed by Strother's treating physicians;
4) pay penalties in the amount of $2,000.00 for failure to reinstate TTDs after being provided sufficient proof;
[14-581 La.App. 3 Cir. 4] 5) pay penalties in the amount of $2,000.00 for failure to reinstate medical benefits after ...

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