Earl Alphonso v. v. Exxon Mobil Exxon Mobil Risk Management, Inc.

EARL ALPHONSO V * NO. 2020-CA-0276

VERSUS *
COURT OF APPEAL
EXXON MOBIL *
EXXON MOBIL RISK FOURTH CIRCUIT
MANAGEMENT, INC. *
STATE OF LOUISIANA
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APPEAL FROM
THE OFFICE OF WORKERS' COMPENSATION
NO. 18-00667, DISTRICT “SEVEN”
Honorable Shannon Bruno Bishop, Workers Compensation Judge
******
JAMES F. MCKAY III
CHIEF JUDGE
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(Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard,
Judge Roland L. Belsome)

LEO CAILLIER III
CAILLIER & ASSOCIATES, LLC
711 2nd Street
Gretna, Louisiana 70053
COUNSEL FOR PLAINTIFF/APPELLEE

B. SCOTT COWART
GEORGE O. LUCE
TAYLOR, WELLONS, POLITZ & DUHE, APLC
4041 Essen Lane, Suite 500
Baton Rouge, Louisiana 70809
COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED IN PART AND REVERSED IN PART

DECEMBER 9, 2020

This is a workers’ compensation case where a claimant re-injures a knee
JFM
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RLB previously injured in an accident at work. The court below found the employer

liable for the claimant’s subsequent injury and guilty of not reasonably

controverting the employee’s claim for compensation. The court awarded

damages, penalties, attorney fees and certain costs related to the case. We affirm

in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On April 1, 2015, Earl Alphonso V injured his left knee when he was

involved in a work accident while in the employ of Exxon Mobil Corporation. Mr.

Alphonso’s injuries consisted of a dislocated kneecap, torn patella tendons, torn

ACL, and a torn PCL. Mr. Alphonso underwent surgery for these injuries in May

of 2015.

Following the initial surgery, Mr. Alphonso continued to report instability

and pain in his left knee. Mr. Alphonso’s knee gave out at home in October of

2015. It was the opinion of Dr. Scott Buhler, Mr. Alphonso’s orthopedic surgeon,

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that Mr. Alphonso had not fully healed from his surgery and another surgery would

be required. Mr. Alphonso underwent a second surgery in April of 2016.

Even after his second surgery, Mr. Alphonso continued to complain of pain

and instability in his left knee. He received injections and even underwent

arthroscopic surgery in February of 2017.

In December of 2017, Mr. Alphonso re-injured his left knee at home while

hanging Christmas lights when he stepped off a ladder and felt a pop in his knee.

Dr. Buhler diagnosed Mr. Alphonso with suspected re-aggravation of the injuries

he sustained in his April 2015 work accident. The following June, Mr. Alphonso

had a total reconstruction of the MPFL.

On January 29, 2018, Mr. Alphonso filed a disputed claim for compensation

against his employer. Following discovery and court ordered mediation, the matter

proceeded to trial on February 20, 2019. After the conclusion of trial, the trial

court allowed the parties to submit post-trial briefs before rendering its judgment

on May 30, 2019.

The trial court rendered judgment in favor of Mr. Alphonso and against

Exxon. The trial court found that Mr. Alphonso’s December 12, 2017 injuries

were a development of his original April 1, 2015 work accident because the

December 12, 2017 injury was foreseeable and came about as a result of the April

1, 2015 injuries predisposing him to future injury. The trial court also found that

Mr. Alphonso was disabled from work and awarded him eight (8) weeks of

indemnity benefits following his June 12, 2018 surgery. The trial also awarded

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Mr. Alphonso ongoing reasonable and necessary medical treatments for the

injuries he sustained on December 12, 2017. The trial court also recognized that

Exxon was entitled to a credit for benefits paid through the short-term disability

program. The trial court further ordered Exxon to pay $6000.00 for failure to

authorize medical treatment, failure to pay medical expenses, and failure to pay

indemnity benefits. The trial court also awarded Mr. Alphonso attorney’s fees of

$7,500.00. Finally, the trial court assessed Exxon with interest from the date of

judgment and costs “to be assessed at a subsequent hearing.”

Notice of the signing of the judgment was mailed to the parties on May 31,

2019. Following a motion for new trial, the court ordered and the parties agreed to

attempt to resolve the issues of costs and submit the remaining disputed issues by

briefs with exhibits. On February 18, 2020, the trial court ordered Exxon to pay

$8,481.47 for costs and expenses incurred by Mr. Alphonso’s attorney in

accordance with La. R.S. 13:4533. Exxon now appeals the trial court’s judgment.

DISCUSSION

On appeal, Exxon raises the following assignments of error: (1) the Workers

Compensation Judge (WCJ) erred by holding Exxon responsible for Mr.

Alphonso’s 2017 MPFL injury, because the first injury had long since healed and

the new injury resulted from an intervening accident that was not caused by Mr.

Alphonso’s predisposition to re-injury; (2) the WCJ erred by awarding penalties

and attorney’s fees, because Exxon reasonably controverted the claim based on Mr.

Alphonso’s injuring himself at home rather than at work, several years after his

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earlier work-related accident; and (3) the WCJ erred by awarding Mr. Alphonso

several items of court costs that are not provided for by positive law.

In its first assignment of error, Exxon contends that the trial court erred by

holding it responsible for Mr. Alphonso’s 2017 knee injury, because his first injury

had healed and his new injury was not caused by a predisposition to re-injury but

by an intervening accident. This is a question of fact.

In reviewing the factual findings of a trial court, an appellate court is limited

to a determination of manifest error. Stobart v. State through Dept. of Transp. and

Development, 617 So.2d 880, 882 (La. 1993). “Where there is a conflict in the

testimony, reasonable evaluations of credibility and reasonable inferences of fact

should not be disturbed on review, even though the appellate court may feel that its

own evaluations and inferences are as reasonable. Id. Where there are two

permissible views of the evidence, the fact finder’s choice between them cannot be

manifestly erroneous or clearly wrong. Id. at 883. “When findings are based on

determinations regarding the credibility of witnesses, the manifest error – clearly

wrong standard demands great deference to the trier of fact’s findings.” Rosell v.

ESCO, 549 So.2d 840,844 (La. 1989) (citations omitted) Only the fact finder can

be aware of the variations in demeanor and tone of voice that bear so heavily on

the listener’s understanding and belief in what is said. Id. Where documents or

objective evidence so contradict a witness’s story, or the story itself is so internally

inconsistent or implausible on its face, that a reasonable fact finder would not

credit the witness’s story, the court of appeal may well find manifest error or clear

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wrongness even in a finding purportedly based upon a credibility determination.

Id. at 844-45. But where such factors are not present, and a fact finder’s finding is

based on its decision to credit the testimony of one or more witnesses, that finding

can virtually never be manifestly erroneous or clearly wrong.” Id. at 845.

To support its position, Exxon relies to a great extent on the Louisiana

Supreme Court’s opinion in the case of Buxton v. Iowa Police Dept., 2009-0520

(La. 10/20/09), 23 So.3d 275, although, it admits that “the analogy to Buxton is a

bit obscured in the instant case.” In any event, Buxton can be distinguished from

the case at bar. In Buxton, we have a claimant who aggravates a back injury

caused by a work-related accident when he has involved in a second accident

where he collided with a cow. This was the aggravation of a pre-existing injury by

an independent later accident. In the instant case, Mr. Alphonso continued to have

problems with his left knee after his work-related accident and subsequent

surgeries. In fact, the WCJ believed that the weakened condition of Mr.

Alphonso’s knee was a cause of his 2017 accident. As such, his 2017 accident and

resulting injury could be related back to his work accident and was therefore the

aggravation of his on-the-job injuries, not a new, unrelated injury. See Kelly v.

City of New Orleans, 414 So.2d 770 (La. 1982) (aggravation of a work-related

injury is compensable even if it occurs away from work).

An employee is entitled to compensation benefits if he or she suffers a

personal injury by an accident arising out of and in the course of employment. La.

R.S. 23:1031. The medical evidence supports the position that Mr. Alphonso’s

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latest injury was related to his original work injury. He had a history of continuous

complaints concerning his left knee since April of 2015. Dr. Curtis Partington, the

radiologist who reviewed Mr. Alphonso’s MRIs, testified that claimant’s patella

was not back to where it was supposed to be and the ligament was thin at the time

of the December 2017 accident.

As stated above, whether the 2015 work accident caused Mr. Alphonso’s

2017 accident and the aggravation of his knee injury is a question of fact. Based

on the record before this court, we cannot find the trial court’s ruling to be

manifestly erroneous or clearly wrong in that regard.

In its second assignment of error, Exxon contends that the WCJ erred when

she awarded penalties and attorney fees because Exxon had reasonably

controverted Mr. Alphonso’s claim. Pursuant to La. R.S. 23:1201, penalties and

attorney fees for failure to timely pay benefits shall be assessed, unless the claim is

reasonably controverted or such nonpayment results from conditions over which

the employer or insurer had no control. Based on the factual and medical

evidence, the trial court found that Mr. Alphonso’s claim was not reasonably

controverted. The trial court found that the medical evidence clearly showed that

Mr. Alphonso’s December 2017 accident was related to the original April 2015

accident. The trial court also found that there was a lack of evidence to dispute the

causal connection between the two accidents and the medical testimony supported

causation. As such, the trial court awarded Mr. Alphonso $6,000.00 in penalties

and awarded attorney fees in the amount of $7,500.00. Considering our position

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regarding the appellant’s first assignment of error, we cannot hold that either the

trial court’s finding or its award of penalties and attorney fees was clearly wrong or

manifestly erroneous.

In its third and final assignment of error, Exxon contends that the WCJ erred

by awarding Mr. Alphonso several items of court costs that are not provided for by

positive law. “[O]nly costs provided for by positive law are taxable against the

party cast in judgment,” and “the types of costs recoverable as court costs are

narrowly defined by statute.” Waters v. Dept. of Soc. Servs., 2008-0977, p. 50

(La.App. 4 Cir. 6/17/09), 15 So.3d 1128, 1162 (citations omitted). These

expenses are limited to “[t]he costs of the clerk, sheriff, witnesses’ fees, costs of

taking depositions and copies of acts used on the trial, and all other costs allowed

by the court.” La. R.S. 13:4533.

In the instant case, the trial court awarded Mr. Alphonso several items of

court costs that are not provided for by positive law. These included $223.00 for

the transcript of Mr. Alphonso’s discovery deposition and $1,500.00 for the costs

of Dr. Partington’s video deposition, neither of which were used at trial. The costs

of a deposition not used at trial may not be taxed as costs. See Brecheen v. News

Group, L.P. , 11-1173, p. 37 (La.App. 5 Cir. 12/11/12), 105 So.3d 1011, 1035; La.

R.S. 13:4533.

Other improperly taxed costs included $636.82 in airfare and $480.70 in

hotel expenses for Mr. Alphonso’s counsel traveling to Houston to depose the

claims adjuster, John Dill. The costs of traveling to take a deposition “do not

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properly come within the costs of depositions made taxable by R.S. 13:4533.”

Succession of Franz, 139 So.2d 216, 219 (La. 1962). “[W]hile the cost of the

deposition itself is a proper item to be taxed as costs, travel expenses of a litigant is

not.” Curry v. Vallot, 271 So.2d 711, 714 (La.App. 1 Cir. 1972) (citation omitted).

The trial court also improperly taxed costs of $870.00, which included out-

of-court work performed by Dr. Partington in interpreting MRIs. “Where a party

seeks to base an expert’s fee on out-of-court work, the law requires a contradictory

and full hearing,” and “[t]he expert must testify at the trial of the rule and be

subject to cross-examination, unless the parties stipulate to the specifics and costs

of the out-of-court work.” Dakmak v. Baton Rouge City Police, 2012-1850, pp. 5-

6 (La.App. 1 Cir. 9/4/14), 153 So.3d 511, 515. In the instant case, Mr. Alphonso

never requested a rule seeking to adduce testimony from Dr. Partington; all he

offered was Dr. Parington’s bill and his attorney’s assertions.

In all other respects, we find no error in the trial court’s taxing of costs in

this case.

CONCLUSION

For the above and foregoing reasons we affirm the judgment of the court

below regarding liability as well as its award of penalties and attorney fees.

However, we reverse the trial court’s judgment regarding the taxing of several

items of cost (specifically listed above) to Exxon. As such, we find the amount of

costs taxed to Exxon should be reduced by $3,710.52 (and any interest associated

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with this principal amount). In all other respects, we affirm the judgment of the

trial court.

AFFIRMED IN PART AND REVERSED IN PART

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