Preview:

CHRISTOPHER DOYLE                                                               *   NO. 2009-CA-1683
(DECEASED)
                                                                                *
VERSUS                                                                              COURT OF APPEAL
*
THE CITY OF NEW ORLEANS                                                             FOURTH CIRCUIT
POLICE DEPARTMENT                                                               *
                                                                                    STATE OF LOUISIANA
                                                                                *
APPEAL FROM
THE OFFICE OF WORKERS' COMPENSATION
NO. 06-6656, DISTRICT “8”
HONORABLE DIANE R. LUNDEEN, WORKERS' COMPENSATION JUDGE
JUDGE MICHAEL E. KIRBY
(Court composed of Judge Charles R. Jones, Judge Patricia Rivet Murray, Judge
Michael E. Kirby)
CHRISTOPHER M. MCNABB
FONTANA & SEELMAN, L.L.P.
1010 COMMON STREET
SUITE 2300
NEW ORLEANS, LA 70112
COUNSEL FOR APPELLEE
TED M. MITCHELL
71234 HENDRY AVENUE
COVINGTON, LA 70433
COUNSEL FOR APPELLANT
AFFIRMED




This appeal involves the dismissal of a claim for death benefits under the
Louisiana Workers’ Compensation Law.  The plaintiffs in this case are Christopher
Doyle, Jr. and Jeanne Labat, the parents of deceased New Orleans Police Officer
Christopher Doyle, III.  For reasons that follow, we affirm.
On November  19,  2005, Officer Doyle died after undergoing surgery to
repair a perforated bowel.   Officer Doyle’s parents filed a claim for workers’
compensation death benefits, alleging that Officer Doyle’s death resulted from
damage or injury to internal organs caused by work-related activity during the
aftermath  of  Hurricane  Katrina.    The City  of  New  Orleans,  Officer  Doyle’s
employer at the time of his death, denied plaintiffs’ allegation that Officer Doyle’s
death was in any way related to his employment with the New Orleans Police
Department (“NOPD”).
The  following  facts  are  not  in  dispute.    In                                     1998,  Officer  Doyle  was
diagnosed with ulcerative colitis.   In February 2004, he underwent surgery that
included the removal of his colon.  He returned to work following this surgery, and
1




performed his duties as a street officer without incident until Hurricane Katrina
struck  on  August  29,                                                                     2005.    Officer  Doyle  remained  on  the  job  during  the
aftermath of Katrina.   On November 18, 2005, he went to East Jefferson Hospital
emergency room with a high fever.  He underwent surgery that day for a perforated
bowel and died on November 19, 2005.   His death certificate lists the cause of
death as peritonitis resulting from the repair of a bowel perforation.
After this case was submitted on exhibits only, the workers’ compensation
judge rendered judgment dismissing plaintiffs’ claim, finding that they are not
entitled to death benefits pursuant to La. R.S. 23:1231.   In reasons for judgment,
the judge stated that none of the physicians who treated Officer Doyle could
causally connect his perforated colon and resulting death with his job or work
duties.    The  judge  found  that  the  plaintiffs  failed  to  carry  their  burden  of
establishing a causal connection between an employment accident and resulting
death  by  a  reasonable  preponderance  of  the  evidence  as  required  under  the
Louisiana Workers’ Compensation Act.  Finding that the evidence presented on the
issue  of  a  work-related  event  causing  Officer’s  Doyle’s  death  was  at  best
speculative and riddled with conjecture, the judge dismissed plaintiffs’ claim for
workers’ compensation death benefits.
Plaintiffs appealed, arguing that the workers’ compensation judge erred in
denying their claim for death benefits and in refusing to admit into evidence a
videotape of a television report on the memorial honoring Officer Doyle.  Plaintiffs
argue that the lower court committed legal error in failing to consider the totality of
2




the evidence in denying death benefits and in failing to give plaintiffs the benefit of
the presumption afforded claimants when employees who are otherwise healthy
suffer injury by accident and later die under circumstances that would indicate a
reasonable possibility of a causal connection between the accident and the death.
They further argue that the evidence presented was sufficient to establish a causal
connection between Officer Doyle’s work-related duties and his death.
La. R.S. 23:1231 provides:
A. For injury causing death within two years after the last
treatment resulting from the accident, there shall be paid
to the legal dependent of the employee, actually and
wholly dependent upon his earnings for support at the
time of the accident and death, a weekly sum as provided
in this Subpart.
B.  (1)  If  the  employee  leaves  legal  dependents  only
partially actually dependent upon his earnings for support
at  the  time  of  the  accident  and  death,  the  weekly
compensation  to  be  paid  shall  be  equal  to  the  same
proportion of the weekly payments for the benefit of
persons wholly dependent as the amount contributed by
the employee to such partial dependents in the year prior
to his death bears to the earnings of the deceased at the
time of the accident.
(2) However, if the employee leaves no legal dependents
entitled   to   benefits   under   any   state   or   federal
compensation system, the sum of seventy-five thousand
dollars  shall  be paid  to  each  surviving  parent  of  the
deceased  employee,  in  a  lump  sum,  which  shall
constitute the sole and exclusive compensation in such
cases.
3




A claimant’s burden of proof in a workers’ compensation death benefits case
was set forth in McKelvey v. City of Dequincy, 07-604, pp. 4-5 (La. App. 3 Cir.
11/14/07), 970 So.2d 682, 686, as follows:
The plaintiff in a death benefits case bears the
burden of proving, by a reasonable preponderance of the
evidence, that a causal relationship exists between the
employment accident and death. Hammond v. Fidelity &
Cas. Co. of New York, 419 So.2d 829, 831 (La.1982).   It
is not necessary for the plaintiff to establish the exact
cause of the disability or, in this case, the death, but it is
necessary  for  the  plaintiff  to                                                     “demonstrate  by  a
preponderance  of  proof  that  the  accident                                                                                                            [that  was]
sustained   has                                                                        [a]   causal   relationship   with                                [the]
disability.” Quinones v. U.S. Fidelity and Guar. Co., 93-
1648  (La.1/14/94),                                                                    630  So.2d  1303,  citing  Russell  v.
Employers Mutual Liability Insurance Co. of Wisconsin,
246 La. 1012, 169 So.2d 82, 88 (La.1964).
Based on our review of the record, including the written reasons for judgment, we
find  no  merit  in  plaintiffs’  argument  that  the  workers’  compensation  judge
committed  legal  error in  her determination of plaintiffs’ entitlement  to  death
benefits.   The judge clearly considered the totality of the evidence presented in
rendering judgment.   Because we find no legal error in this case, a de novo review
is not required.                                                                       “Factual findings in workers’ compensation cases are subject to
the manifest error or clearly wrong standard of appellate review.”    Banks v.
Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.  7/1/97), 696
So.2d 551,  556,  (citing Smith v. La. Dept. of Corrections,  93-1305, p.  4,  (La.
2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5,
(La. 1/14/94), 630 So.2d 733, 737-38.).
4




As stated above, this disputed claim for death benefits was submitted to the
workers’ compensation judge on the written record only, without testimony of the
witnesses.   The record includes the deposition testimony of four physicians who
treated Officer Doyle for his medical condition at various times.   Also included in
the record are letters submitted by these same four physicians in support of the
NOPD’s request to add Officer Doyle’s name to the National Law Enforcement
Officers Memorial.
We find no error in the decision of the workers’ compensation judge to deny
plaintiffs’  claim  for  workers’  compensation  death  benefits.    Even  assuming
arguendo that the aftermath of Hurricane Katrina constitutes an “accident,” the
record supports the judge’s finding that plaintiffs did not carry their burden of
establishing a causal connection between Officer Doyle’s work activities in the
weeks  following  Hurricane  Katrina  and  his  death  from  peritonitis  following
surgery to repair a bowel perforation on November 18, 2005.
Several months after Officer Doyle’s death, the NOPD  sought to have
Officer  Doyle’s  name  added  to  the  National  Law  Enforcement  Memorial  in
Washington,  D.C.    In  support  of  this  request,  the  NOPD  submitted  a  letter
outlining Officer Doyle’s dedicated service to the community in the aftermath of
Hurricane Katrina, and his insistence on continuing to perform his duties in the
worst possible conditions despite the fact that he was urged by his supervisor to
take time off to rest due to his chronic illness.   Also attached to the request to add
Officer Doyle’s name to the memorial were letters from Drs. Howard I. Brenner,
G. Richard Puente, Frank J. Wessels and David C. Longcope.  The physicians who
submitted letters treated Officer Doyle at various stages of his illness.
5




Plaintiffs  argue  that  the  contents  of  the  letters  submitted  by  the  four
physicians constitute medical opinions that Officer Doyle died in the line of duty
because of conditions caused by Hurricane Katrina.   The letters praise Officer
Doyle’s service on the police force in the days and weeks following Katrina, even
though he was suffering the effects of his chronic ailment of ulcerative colitis.  The
letters of Dr. Brenner and Dr. Puente included the sentence, “I feel that the long
hours and stress that he was under probably contributed to his early demise.”
When  the  depositions  of  these  physicians  were  later  taken,  all  four
physicians testified that they wrote the letters at the request of Officer’s Doyle’s
mother for the purpose of supporting her efforts to have her son’s name added to
the memorial.   Under questioning about the cause of Officer Doyle’s perforated
colon that resulted in his death, none of the physicians could causally connect
Officer Doyle’s perforated colon and resulting death with the conditions he faced
while working as a police officer during the aftermath of Hurricane Katrina.
Dr. Brenner, a gastroenterologist, treated Officer Doyle before Hurricane
Katrina but was not involved in his care after 2004.   He testified that his letter
submitted in support of Officer Doyle’s inclusion in the memorial was not intended
to be a medical diagnosis.   Dr. Brenner could not say whether there was a causal
connection between Officer Doyle’s work following Katrina and his death.
Dr. Puente, a gastroenterologist, testified that stress may have played a role
in Officer Doyle’s condition but he could not say whether or not it was the cause of
his death.  He stated that he does not believe Officer Doyle’s bowel was perforated
during  or  immediately  after  the  storm.    Instead,  he  believes  the  perforation
probably occurred shortly before his admission to the hospital on November 18,
2005.   Dr. Puente could not say Officer Doyle’s work conditions following the
6




storm, including exposure to flood waters and deprivation of proper nutrition,
caused him to develop the bowel perforation that led to his death.
Dr. Longcope, a specialist in colon and rectal surgery, testified that he
performed surgery on Officer Doyle in  2004 to remove his colon due to his
ulcerative colitis.   The surgery was a “total proctolocolectomy with ileoanal pouch
anastomosis  and  diverting  loop  ileostomy.”     Dr.  Longcope  described  the
procedures he performed on Officer Doyle in 2004 as follows:
He had ulcerative colitis, which is a disease of the
entire colon, so he had his entire colon removed and he
had what’s called an ileoanal pouch, which is a reservoir
like  a  new  type  of  rectum  made  out  of  his  small
intestines, and that was brought down and hooked up to
the anus.   He also had a temporary ileostomy which I
then subsequently closed approximately six weeks later.
Officer Doyle again sought treatment from Dr. Longcope in early October,
2005, complaining of rectal pain and decreased bowel movements.   Dr. Longcope
diagnosed pouchitis, which he described as an inflammation of the pouch, and
treated Officer Doyle with antibiotics.   He stated that no one knows what causes
pouchitis.   He further stated that there is no known relationship between pouchitis
and bowel perforation.
In his testimony, Dr. Longcope could not say whether Officer Doyle’s
working conditions after the hurricane caused the perforation.   He noted that in his
letter written in support of Officer Doyle’s inclusion in the memorial, he did not
say there was a causal connection between Officer Doyle’s work and his eventual
death.   While he stated his belief that the work conditions probably contributed to
Officer Doyle’s underlying condition by suppressing the immune system, he could
not say with certainty that there was a causal connection between the working
conditions after the hurricane and Officer Doyle’s death.
7




Dr.  Wessels,  a  specialist  in  colon  and  rectal  surgery,  testified  that  he
performed the emergency surgery on November 18, 2005 to repair Officer Doyle’s
perforated bowel.  He stated that he could only speculate that Officer Doyle’s work
conditions after Hurricane Katrina may have contributed to his death but could not
say there was a causal connection between the work conditions and his death.   His
opinion is that Officer Doyle died of complications from his ulcerative colitis.   Dr.
Wessels  said  that  work  conditions  following  Katrina  possibly  could  have
contributed to Officer Doyle’s diminished overall resistance to infection but he
does not think the work conditions caused the bowel perforation or exacerbated the
ulcerative colitis.
Our conclusion, after reviewing the record in its entirety, is that the trial
court was not manifestly erroneous or clearly wrong in finding that the plaintiffs
did not carry their burden of proving a causal connection between the working
conditions faced by Officer Doyle in the aftermath of Hurricane Katrina and his
death on November 19, 2005 following surgery to repair a perforated colon.   The
evidence relied upon by plaintiffs to support their theory that Officer Doyle’s death
resulted from his working conditions after Katrina is at best speculative, which is
insufficient to support a claim for death benefits under the workers’ compensation
laws.
Plaintiffs also argue that the workers’ compensation judge erred in refusing
to admit into evidence a videotape of a television report of the memorial honoring
Officer Doyle.  The videotape contains statements by officials of the NOPD, which
plaintiffs attempted to offer for their factual content.   The City objected to the
admission of the videotape into evidence for four reasons:                               (1) it only received
notice of the videotape ten days prior to the hearing, (2) plaintiffs produced no
8




witnesses to properly authenticate the story or its reproduction onto the disc, (3)
the videotape constitutes inadmissible hearsay evidence because it attempts to offer
statements of witnesses not in court to prove the truth of the matter asserted, and
(4) the videotape has no relevance and the potential prejudicial value far outweighs
any probative value.
The workers’ compensation judge sustained the City’s objections to the
introduction of the videotape and refused to admit it into evidence.   In refusing to
allow the videotape, the judge noted that the plaintiffs had the ability to subpoena
some of the officers on the videotape to appear in court, which would be the more
appropriate way to offer their testimony.  The judge also found that ten days before
trial  was  insufficient  notice  to  the  City  of  the  existence  of  this  videotape.
Additionally, the judge voiced concerns about a news story including only selected
pieces of information and about the defense not having the opportunity for cross-
examination.    For those reasons, the judge sustained the City’s objection but
allowed the plaintiffs to proffer the videotape.
We  find  no  error  on  the  part  of  the  workers’  compensation  judge  in
sustaining the City’s objections to the introduction of the videotape into evidence.
Louisiana Code of Evidence Article 801 defines “hearsay” as “a statement, other
than one made by the declarant while testifying at the present trial or hearing,
offered in evidence to prove the truth of the matter asserted.”   La. C.E. Article 802
states that “[h]earsay is not admissible except as otherwise provided by this Code
or other legislation.”   Plaintiffs have not shown that the officers in the news story
featured on the videotape were unavailable to testify or that this videotape falls
within any of the exceptions to the hearsay rule.
9




For  the  reasons  stated  above,  the  judgment  of the  Office of  Workers’
Compensation Administration denying plaintiffs’ claim for death benefits pursuant
to La. R.S. 23:1231 is affirmed.
AFFIRMED
10

Download 259070.pdf

Louisiana Law