Shannon Douglas v. Grey Wolf Drilling

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-515

SHANNON DOUGLAS

VERSUS

GREY WOLF DRILLING COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2,
PARISH OF RAPIDES, NO. 01-6100,
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Billie Colombaro Woodard, Michael G. Sullivan, and Billy H.
Ezell, Judges.

AFFIRMED.

James D. Hollier
Gregory A. Koury
Laborde & Neuner
Post Office Drawer 52828
Lafayette, Louisiana 70505-2828
(337) 237-7000
Counsel for Defendant/Appellant:
Grey Wolf Drilling Company

Shannon Douglas
In Proper Person
30 Herman Thompson Road
Pitkin, Louisiana 70656
(318) 634-5278
Counsel for Plaintiff/Appellee:
Shannon Douglas

SULLIVAN, Judge.

Grey Wolf Drilling Company (Grey Wolf) appeals a judgment awarding a

former floorhand, Shannon Douglas, $2,328.00 in temporary total disability benefits

for six weeks and $6,073.40 in medical expenses for the repair of a right inguinal

hernia that Mr. Douglas alleged he sustained in a work-related accident. For the

following reasons, we affirm.

Discussion of the Record

Mr. Douglas, a pro se litigant, testified that he felt something pull in his right

groin area as he squatted to catch a “lift sub” pipe that began to roll from the rig’s

rotary table between midnight and 2:00 a.m. on May 7, 2001. He explained that he

completed his shift, which ended at 6:00 a.m. on May 7, without reporting the incident

because he believed that he only sustained a pulled muscle that would heal. However,

he stated that he later found a lump in his lower belly while showering after he had

driven two and a half hours from the rig to his home. He further described having to

stop his vehicle several times so that he could relieve a burning pain by standing up

and walking around as he drove back to the rig for his next shift, which began at 6:00

p.m. on May 7. He testified that he was only able to work approximately two hours

into that shift when he reported that he was in pain to the driller, Leroy Lejeune.

Mr. Lejeune then referred him to the toolpusher, Joel Kirkpatrick.

The substance of the conversation between Mr. Douglas and Mr. Kirkpatrick

is in dispute. Mr. Douglas testified that he told Mr. Kirkpatrick of the “lift sub”

incident that occurred during the previous shift, but that he offered to file any medical

claims under his health insurance plan because he was concerned that a safety bonus

for all crew members would be in jeopardy if he reported a “lost-time” accident.

Because he was scheduled to go on “days off” the next day, he proposed to

Mr. Kirkpatrick that he take an additional week off to recover from surgery before

returning to work. According to Mr. Douglas, Mr. Kirkpatrick agreed to this plan and

assured him that he would have a job when he recovered. When Mr. Douglas returned

to the rig to inquire about his job three weeks later, after he had undergone the hernia

repair, he learned that he had been terminated the day after his last shift because he

had not been with the company long enough to take a week off.

Mr. Kirkpatrick, however, denied any knowledge of a work-related accident.

He testified that Mr. Douglas explained that he needed surgery because he aggravated

a pre-existing hernia while performing his “manly duties,” which Mr. Kirkpatrick

understood to mean having sex with his wife. Although he acknowledged a

discussion about Mr. Douglas still having his job when he returned, Mr. Kirkpatrick

denied any agreement about not reporting a work-related accident to protect the

crew’s safety bonuses. Mr. Lejeune, the driller, testified that he did not see

Mr. Douglas catch a falling “lift sub” and that Mr. Douglas told him he may have

gotten a hernia from an off-duty accident that occurred a few weeks earlier.

On May 8, 2001, Mr. Douglas sought treatment for the hernia from Dr. James

Oglesby, who recommended an immediate referral to a surgeon, Dr. Patrick Savoy.

According to Dr. Oglesby’s records, Mr. Douglas reported that he felt the hernia “rip

about two days ago” and that it “really started hurting” during intercourse. After an

initial visit with Dr. Savoy on May 9, 2001, Mr. Douglas underwent repair of a large,

right inguinal hernia the next day, May 10, 2001. Dr. Savoy’s handwritten notes

contained the notation “works in oilfield—large RIH for years, recently

symptomatic.” The typewritten report of that visit, however, varies slightly, stating:

“The patient has worked in the oil field for many years with a large right inguinal

hernia but has just recently become symptomatic.”

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Mr. Douglas testified that he underwent a hernia repair as an infant, but he

denied that he had similar problems before May 7, 2001. He testified that he began

working for Grey Wolf, which was his first job in the oilfield, about seven months

before the accident and that he had to pass a physical as a condition of employment.

His wife testified that she was not aware of her husband having a hernia until he

showed her the bulge that appeared after his shift on May 7, 2001.

At the close of evidence, the workers’ compensation judge (WCJ) found that

Mr. Douglas had proved his case by a preponderance of the evidence, citing the

objective evidence of a hernia, the corroboration in the medical records as to the

timing of his symptoms, and an inconsistency in the testimony of Grey Wolf’s

employees, in that one said Mr. Douglas told him he got a hernia during sexual

intercourse whereas the other stated that Mr. Douglas reported an earlier, off-duty

accident. The WCJ also commented favorably on the credibility of both Mr. Douglas

and his wife. Specifically, the WCJ stated that he believed Mr. Douglas when he

testified (1) that he did not initially think he was seriously injured, (2) that he believed

his job was in jeopardy if he reported an accident, and (3) that he believed reporting

a “lost-time” accident would have placed the crew’s safety bonuses at risk. The WCJ,

however, did not award any penalties, based upon the failure to report the accident and

the vagueness in the medical records.

Burden of Proof

In its first assignment of error, Grey Wolf argues that the WCJ should have

required Mr. Douglas to prove his case by “clear and convincing” evidence because

his testimony was the only evidence supporting the occurrence of a work-related

accident. In its second assignment of error, Grey Wolf argues that, even if

“preponderance of the evidence” was the appropriate standard, Mr. Douglas’

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testimony was insufficient to discharge that burden because other evidence discredited

it and it was not corroborated by the circumstances following the accident.

Grey Wolf cites Provost v. Transportation Insurance Co., 524 So.2d 800

(La.App. 3 Cir. 1988), for authority that a claimant’s testimony must be clear and

convincing if it is the only evidence offered in support of an accident. However,

Provost was based upon a line of cases that the supreme court expressly repudiated

in Bruno v. Harbert International Inc ., 593 So.2d 357, 364 (La.1992) (emphasis

added):

[W]e find the appellate court’s reliance on the fact that plaintiff was the
only witness entirely misplaced. As we stated in West [v. Bayou Vista
Manor, Inc., 371 So.2d 1146 (La.1979)], it is improper for a court to
impose a higher standard of proof on a worker simply because she was
the only witness, as to do so “in effect place[s] a duty upon this
compensation claimant to prove her case greater than that required by the
jurisprudence.” Id. at 1150. Significantly, the Third Circuit did just that
by stating as a rule, based upon a string cite of its own decisions, that
“where the plaintiff’s testimony is the sole evidence, it must be clear and
convincing.” . . . We find this statement to be in direct conflict with West,
supra, and to be legally incorrect . As we held in West, supra, the
worker’s burden of proof, even if the worker is the sole witness of the
accident, is by a preponderance of the evidence.

In Bruno, 593 So.2d at 361 (citations omitted), the supreme court explained:

A worker’s testimony alone may be sufficient to discharge this burden
of proof, provided two elements are satisfied: (1) no other evidence
discredits or casts serious doubt upon the worker’s version of the
incident; and (2) the worker’s testimony is corroborated by
circumstances following the alleged incident. Corroboration of the
worker’s testimony may be provided by the testimony of fellow workers,
spouses or friends. Corroboration may also be provided by medical
evidence.

“The trial court’s determinations as to whether the worker’s testimony is

credible and whether the worker has discharged his or her burden of proof are factual

determinations not to be disturbed on review unless clearly wrong or absent a showing

of manifest error.” Id. In Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-

2840, pp. 7-8 (La. 7/1/97), 696 So.2d 551, 556 (citations omitted) (alteration in

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original), the supreme court explained the manifest error standard of review as

follows:

In applying the manifest error-clearly wrong standard, the appellate court
must determine not whether the trier of fact was right or wrong, but
whether the factfinder’s conclusion was a reasonable one. Where there
are two permissible views of the evidence, a factfinder’s choice between
them can never be manifestly erroneous or clearly wrong. Thus, “if the
[factfinder’s] findings are reasonable in light of the record received in its
entirety, the court of appeal may not reverse, even if convinced that had
it been sitting as the trier of fact, it would have weighed the evidence
differently.”

In the present case, the WCJ found that Mr. Douglas’ testimony was

corroborated by his wife and by medical records. Although the WCJ characterized the

medical records “vague or ambiguous,” he found that they corroborated Mr. Douglas’

version of sustaining a hernia two days earlier that later became painful during sexual

intercourse rather than the employer’s claim that the sexual intercourse was the cause

of the hernia. As to Mr. Douglas’ failure to report the accident, the WCJ found his

explanation—that he did not believe he was seriously injured—to be credible given

the aches and pain that heavy oilfield work can cause. The WCJ also believed Mr.

Douglas when he testified that the crew’s safety bonuses would be at risk should he

report a “lost-time” accident. In contrast, the WCJ emphasized that Grey Wolf’s

employees testified inconsistently regarding what Mr. Douglas told them as to cause

of his hernia. Based upon the above, we find no error that Mr. Douglas proved that

he sustained a work-related accident by a preponderance of the evidence.

Failure to File a Pre-Trial Statement

In its third assignment of error, Grey Wolf argues that the WCJ erred in

allowing Mr. Douglas to present any evidence, either testimonial or documentary,

because he failed to file a pre-trial statement as required by the Office of Workers’

Compensation Hearing Rules 6005 and 6007 (La.Admin.Code Title 40, Part I, Chapter

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60, §§ 6005 and 6007). In overruling Grey Wolf’s objection to Mr. Douglas’

evidence, the WCJ commented that it was evident the employer had conducted its own

investigation of the claim and was, therefore, well aware of the information available

to both sides.

Hearing Rule 6005(A) requires each party to file a pre-trial statement at least

ten days before the pre-trial conference. Hearing Rule 6007(B) states that

amendments to the pre-trial statement shall only be by written motion and for good

cause shown. (The rule does not list the consequences for failing to file a pre-trial

statement.) Hearing Rule 6201 provides that only those issues listed in the pre-trial

statements shall be litigated at trial, except by written order of the WCJ for good cause

or by agreement of the parties.

Louisiana Revised Statutes 23:1317(A) (emphasis added) provides, in part:

The workers’ compensation judge shall not be bound by technical rules
of evidence or procedure other than as herein provided, but all findings
of fact must be based upon competent evidence . . . . The workers’
compensation judge shall decide the merits of the controversy as
equitably, summarily, and simply as may be.

In Meche v. Foremost Management Corp., 93-1390, p. 5 (La.App. 3 Cir.

5/4/94), 640 So.2d 585, 587, writ denied, 96-152 (La. 3/15/96), 669 So.2d 429

(quoting Keyes v. Rockwood Ins. Co., 502 So.2d 223, 228 (La.App. 3 Cir. 1987), we

stated that La.R.S. 23:1317 “reflects the legislature’s intent, in compensation cases,

to materially relax evidentiary and procedural rules and subordinate procedural

considerations to the discovery of the truth and the protection of substantive rights.”

Additionally, as explained in Vernon v. Wade Correctional Institute , 26,053, p. 5

(La.App. 2 Cir. 8/19/94), 642 So.2d 684, 688 (emphasis added), “[t]he theory inherent

in pretrial procedure is the avoidance of surprise and the allowance of the orderly

disposition of the case.”

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In Starkman v. Munholland United Methodist Church, 97-661 (La.App. 5 Cir.

1/14/98), 707 So.2d 1277, writ denied, 98-400 (La. 3/27/98), 716 So.2d 891, the court

found that the claimant’s failure to file a pre-trial statement supported the WCJ’s

exclusion of the testimony of a witness, a close friend of the claimant’s. However, the

claimant did present other evidence in support of her claim, including her testimony,

medical records, and physicians’ depositions, even though she did not file a pre-trial

statement.

In the present case, Mr. Douglas offered his testimony and that of his wife, as

well as four exhibits: an earnings statement prepared by the employer; incident

verification forms generated by the employer; and medical insurance claims and

medical records that the employer provided to him. Mr. Douglas also proffered a drug

testing custody and control form that was apparently prepared at the employer’s

request. We find no abuse of the WCJ’s discretion in permitting Mr. Douglas to

proceed with his case, given that the employer had taken his deposition and that his

documentary evidence was either generated by or otherwise available to his employer.

Forfeiture of Benefits and Restitution

In its fourth assignment of error, Grey Wolf argues that the trial court erred in

denying its claims for forfeiture of benefits under La.R.S. 23:1208(E) and for

restitution of $17,032.09 in investigation expenses under La.R.S. 23:1208(D).

Additionally, Grey Wolf argues that we should conduct a de novo review of its

forfeiture and restitution claims under Bloxom v. Bloxom, 512 So.2d 839 (La.1987)

because the trial court impliedly denied them without comment in its oral reasons for

judgment.

In Bloxom, 512 So.2d 839, the supreme court recognized that a trial court’s

factual findings may not be entitled to the usual deference owed them if the trial

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court’s reasons do not articulate the theory or evidentiary facts upon which its

conclusions are based and if the trial court’s path may not be reasonably discerned

from the record. However, inLeal v. Dubois, 00-1285, p. 4 (La. 10/13/00), 769 So.2d

1182, 1185, the supreme court emphasized that deference is still owed a trial court’s

decision “even if that decision is of less than ideal clarity, if the trial court’s path may

reasonably discerned, such as when its findings, reasons and exercise of discretion are

necessarily and clearly implied by the record.” In Leal, 769 So.2d 1182, the trial

court’s written reasons clearly implied that it did not find the plaintiff to be a credible

witness, and the trial court stated in denying the plaintiff’s motion for a new trial that

it did not believe her testimony. Finding that this court wrongly applied Bloxom in

reversing the trial court’s decision, the supreme court stated: “Under these

circumstances, the court of appeal erred in failing to give deference to the district

court’s factual findings, which were unequivocally based on a credibility

determination.” Id. at 1185 (emphasis added).

In his oral reasons, the WCJ repeatedly stated that he believed Mr. Douglas’

testimony. In particular, the WCJ found Mr. Douglas credible when he stated that he

initially did not believe he was seriously injured and that he believed reporting a “lost-

time” accident might jeopardize his job as well as safety bonuses for the other crew

members. The WCJ’s reasons for ruling clearly imply that he denied the fraud and

restitution claims based upon his favorable assessment of Mr. Douglas’ credibility.

Accordingly, we find that the Bloxom standard does not apply.

Louisiana Revised Statutes 23:1208(A) provides, in part: “It shall be unlawful

for any person, for the purpose of obtaining . . . any benefit or payment under the

provisions of this Chapter . . . to willfully make a false statement or representation.”

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“The only requirements for forfeiture of benefits under Section 1208 are that

(1) there is a false statement or representation, (2) it is willfully made, and (3) it is

made for the purpose of obtaining or defeating any benefit or payment.” Resweber

v. Haroil Constr. Co., 94-2708, 94-3138, p. 7 (La. 9/5/95), 660 So.2d 7, 12.

However, because statutory forfeiture is a harsh remedy, it must be strictly

construed. Benoit v. Frank’s Casing Crew, 97-1522 (La.App. 3 Cir. 5/20/98), 713

So.2d 762, writ denied, 98-1697 (La. 10/9/98), 726 So.2d 31. Whether an employee

has forfeited his right to workers’ compensation benefits is a question of fact that will

not be disturbed on appeal absent manifest error. Smith v. Quarles Drilling Co.,

99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La. 10/8/99),

751 So.2d 227.

Grey Wolf argues that Mr. Douglas falsely testified that he told his co-workers

and his doctors that his injury was work-related. The WCJ, however, found that the

co-workers testified inconsistently and that the medical records were “ambiguous or

vague,” with discrepancies between the handwritten and typewritten reports. We find

no error in the WCJ’s conclusion that Mr. Douglas did not testify falsely for the

purpose of obtaining workers’ compensation benefits.

Grey Wolf also argues that Mr. Douglas forfeited his right to workers’

compensation benefits when he completed an “Incident Verification Statement Form”

at the end of his May 7, 2001 shift confirming that he did not have “an incident”

during that work period. On the form, which must be completed by every rig crew

member after every shift, the employee is asked to “CONFIRM” that he “DID” or

“DID NOT” have “an incident” during that shift. The form also contains a warning

that the failure to answer truthfully may result in a denial of any right to workers’

compensation benefits, including medical treatment and expenses. The WCJ

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considered the use of the term “incident” to be ambiguous, noting by analogy the

difficulty that the courts have in defining what may be considered an “accident.”

Further, the WCJ believed Mr. Douglas when he testified that he did not initially think

anything significant had happened due to the nature of heavy work in the oilfield. We

find no error in the denial of a forfeiture claim based upon the completion of this

form.

Decree

For the above reasons, the judgment of the Office Workers’ Compensation is

affirmed. Costs of this appeal are assessed to Appellant, Grey Wolf Drilling

Company.

AFFIRMED.

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