
    Teddy MONTE v. H.B. “BUSTER” HUGHES, INC. and Niagara Fire Insurance Company.
    No. CA 1460.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 27, 1984.
    Rehearing Denied Oct. 29, 1984.
    
      Marvin C. Grodsky, New Orleans, for plaintiff.
    Geoffrey P. Snodgrass, Christovich & Kearney, New Orleans, for defendants.
    Before REDMANN, C.J., and GARRISON and WARD, JJ.
   REDMANN, Chief Judge.

Plaintiff employee’s appeal from a judgment for workers’ compensation benefits argues that he should have been awarded permanent and total benefits, penalties and attorney’s fees, and pre-judgment interest on medical expenses.

On medical expenses, plaintiff cites La. R.S. 13:4203 and its application in LeBlanc v. New Amsterdam Cas. Co., 202 La. 857, 13 So.2d 245 (1943).- That statute provides interest from judicial demand “on all judgments, sounding in damages, ‘ex delicto’,” and does not purport to apply to workers’ compensation cases. A worker who is being charged interest on an unpaid medical bill ought of course to recover it as part of his medical expenses. But we know of no rule that interest is due upon workers’ compensation medical expenses in all cases, even if the plaintiff is not being charged interest. We therefore reject plaintiff’s argument that pre-judgment interest is due in every case of unpaid medical expense.

At the time of this early 1975 accident, prior to the 1975 amendment to the workers’ compensation law, permanent and total benefits were due to a worker disabled “to perform work of the same or similar description that he is accustomed to perform,” Knispel v. Gulf States Util. Co., 174 La. 401, 141 So. 9, 12 (1932). The trial judge’s reasons show he was aware that this more liberal standard applies, but he reasoned that the medical evidence does not support a conclusion of total disability beyond 202 weeks. The judge noted that, notwithstanding a 10% “anatomical” disability, the half-inch shortening of plaintiff’s leg causes neither functional disability nor substantial pain. Plaintiff was therefore correctly held not permanently and totally disabled.

Plaintiff claims for penalties and attorney’s fees in respect to the benefits found due after the automobile accident that was the occasion of the rebreaking of plaintiff’s leg 13 days after the accident at work. The rule in compensation cases is that an aggravation of a work-related injury is compensable (at least if the earlier injury “predisposes” the worker to the later injury); Kelly v. City of New Orleans, 414 So.2d 770 (La.1982); Stewart v. Hospitals Affiliates Int’l., 404 So.2d 944 (La.1981). Thus plaintiff’s disability, although for a longer time because of the rebreaking of his leg, was for its whole time compensa-ble, and termination of plaintiff’s benefits before complete recovery was therefore wrong. But termination is not established to have been “clearly arbitrary,” in the words of Kelly, 414 So.2d at 772. The two cited supreme court cases, establishing and reaffirming that principle, were decided after our plaintiff’s injuries. Moreover, in Kelly itself the court refused penalty and attorney’s fees on the benefits and surgical costs arising from the swimming accident, because the failure to pay them was not “clearly arbitrary.” Under our circumstances, especially the pre-Kelly and pre-Stewart time of our insurer’s decision (on the basis of a doctor’s opinion that the original breaking would long earlier have healed), we cannot hold our trial judge clearly wrong in his conclusion that the insurer was not clearly arbitrary in terminating compensation benefits long after the estimated time that disability would have ended in the absence of the automobile accident (although long before the aggravated disability in fact ended).

Affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff’s application for rehearing caused us to review and now requires us to clarify our language to specify that we "reject plaintiff’s argument that pre-judgment interest from judicial demand is due in every case of unpaid medical expense.”

The only medical expense that plaintiff paid before filing suit was $52.95 for drugs and appliance rental, and it may be conceded he would be entitled to interest on these items.

Also pre-filing, plaintiff incurred doctor’s charges totalling $1,249 before suit, but that doctor both (1) did not add interest to his bills and (2) testified he did charge workers’ compensation patients for followup visits after reducing a fracture, but did not charge his other patients for them. Evidently that doctor’s charges are adjusted with the expectation that they will not be paid immediately.

Among the post-filing bills, one doctor did add interest, and the amount of interest shown by the bill was awarded (although that interest was only for eight months).

Another bill (for $337) shows that the services were not even rendered until over six years after the suit was filed — and only a month and a half before the judgment in the case. To argue that interest is due on that bill from judicial demand is to reject the theory of damages as loss-replacement.

Yet another two bills, for $3,781.25 from a Minnesota welfare agency and $1,270.75 from Minnesota doctors — both included in the judgment — show that the second is to the extent of about 75% or so included in the first. Moreover, the second bill shows that, although the physicians billed $1,270.75, the local welfare department rejected a total of $187.15 as beyond “customary and reasonable” and the doctors’ accounting deducted that amount by “write off.” Thus the trial court awarded most of $1,270.75 (apparently $991.95) more than the proof.

Furthermore, as to the welfare department’s claim for reimbursement for $3,781.25, the date of payment is not shown. Again, plaintiff is not entitled to the interest from judicial demand that he claims, but, at best on this proof, if at all, from the late 1978 date of the affidavit— which does not itself assert any claim for interest.

Plaintiff does not provide an accounting that would show from what dates interest is due on what amounts — not in the trial court and not in this court. If interest were calculable from three or four dates and amounts we might amend the judgment to award him some interest. But many dates and amounts are involved and, as we have explained above, plaintiff has by error been awarded about $1,000 medical expense that was already included in a $3,781.25 bill also awarded.

Plaintiff has the burden in the trial court of proving his case, and in the appellate court of showing that the trial court was clearly wrong. He did not establish in the trial court what interest he was due and he did not show here that the trial court was clearly wrong — especially considering the erroneous overaward of about $1,000 — in failing to award pre-judgment interest to plaintiff.

Rehearing is refused.  