Walter Newson v. Richard Spurgeon Masonry

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 03-1367

WALTER NEWSON

VERSUS

RICHARD SPURGEON MASONRY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 02-04388
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billie Colombaro Woodard, Oswald A. Decuir, and Billy Howard
Ezell, Judges.

AFFIRMED AS AMENDED.

Bradley John Gadel
Percy, Smith, Foote
P. O. Box 1632
Alexandria, LA 71309-1632
(318) 445-4480
Counsel for: Defendant/Appellant
Richard Spurgeon Masonry

Maria Anna Losavio
Losavio Law Firm
1821 MacArthur Drive
Alexandria, LA 71315
(318) 767-9033
Counsel for: Plaintiff/Appellee
Walter Newson

EZELL, JUDGE.

This case arises from a workers’ compensation dispute filed by Walter Newson

against his employer, Richard Spurgeon Masonry. Spurgeon asserts that the workers’

compensation judge erred in assessing penalties and attorney’s fees against it for late

payment of a medical bill and in rejecting its claims that Newson committed fraud

under La.R.S. 23:1208. Newson answers the appeal, claiming that the workers’

compensation judge erred in not awarding attorney’s fees for termination of indemnity

benefits and seeking additional attorney’s fees for work necessitated by Spurgeon’s

appeal. For the following reasons, we affirm the decision of the workers’

compensation judge (WCJ) as amended.

On June 20, 2001, Newson injured his left hand while in the course and scope

of his employment with Spurgeon. This is not in dispute. He was treated at the

emergency room at Huey P. Long Medical Center the same day. He filed a claim for

temporary total disability benefits (TTDs) which was accepted by Spurgeon and paid

in accordance with the law.

On May 30, 2002, Newson had an appointment with his doctor to examine his

hand. Newson was authorized to return to work with limited use of his left hand, with

a reevaluation appointment scheduled for June 27, 2002. However, Spurgeon kept

paying benefits up to June 25, 2002. Spurgeon knew of the doctor’s appointment on

the 27th and requested an updated work on his work status from the doctor. On this

date, Newson was again released to modified work duty with limited use of his left

hand. Spurgeon received this update on his medical status on July 10, 2002, and

issued a check for benefits the next day. However, while Spurgeon was waiting on

the updated medical status, it did not pay indemnity benefits. Newson then instituted

this claim, asserting that the benefits for the period of June 26, 2002 through July 9,

2002 were untimely paid and that Spurgeon did not timely pay the medical bill arising

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from his visit to the emergency room. Spurgeon countered with a claim that Newson

committed fraud under La.R.S. 23:1208.

At trial, the WCJ found that, due to the change in his medical status as of May

30, 2002, Newson was no longer entitled to TTDs as of that time and was only entitled

to supplemental earnings benefits (SEBs). Since SEBs are paid on a monthly rather

than weekly basis, the WCJ found that the benefits were not untimely paid. The WCJ

also found that Spurgeon did pay the emergency room bill after the time allowed by

La. R.S. 23:1201(E) and awarded Newson $2,000 in penalties and $2,000 in

attorney’s fees for the violation. Finally, the WCJ found that Spurgeon did not prove

that Newson violated La.R.S. 23:1208. From this decision, both parties appeal.

Louisiana jurisprudence is clear that in a workers’ compensation case, as in

other cases, the appellate court’s review is governed by the manifest error or clearly

wrong standard. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.

7/1/97), 696 So.2d 551; Belaire v. L & L Oil Co., 93-1198 (La.App. 3 Cir. 5/4/94),

636 So.2d 1177. The appellate court must determine not whether the trier of fact was

right or wrong, but whether the fact finder’s conclusion was a reasonable one, after

reviewing the record in its entirety. Stobart v. State Through Dep’t of Transp. and

Dev., 617 So.2d 880 (La.1993). Even though an appellate court may feel its own

evaluations and inferences are more reasonable than the fact finder’s, reasonable

evaluations of credibility and reasonable inferences of fact should not be disturbed

upon review where conflict exists in the testimony. Id.

In its first assignment of error, Spurgeon claims that the workers’ compensation

judge erred in imposing penalties and attorney’s fees for late payment of the June 20,

2001 bill, as the bill was paid within sixty days of receipt of the requested medical

records. We disagree.

After a review of the record, we find that the WCJ committed no manifest error

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in finding that Spurgeon failed to timely pay the June 20, 2001 medical bill. Spurgeon

had written notice of the bill as of September 13, 2002. However, the bill was not

paid until January 21, 2003. Louisiana Revised Statute 23:1201(E) states: “[m]edical

benefits payable under this Chapter shall be paid within sixty days after the employer

or insurer receives written notice thereof.” Spurgeon cannot use the fact that it did not

receive the requested medical records as a reasonable basis for paying the medical bill

late, when they received the bill directly from Huey P. Long hospital in September of

2002. “[A]ny request by the employer for additional medical records can and should

be done in an expeditious manner within the sixty day time period.” Roque v. Shell

Beach Trucking, 02-1305, p. 6 (La.App. 3 Cir. 5/7/03), 844 So.2d 1111, 1115. This

assignment of error is without merit.

In its second assignment of error, Spurgeon claims that the WCJ erred in

rejecting its assertion that Newson committed fraud under La.R.S. 23:1208. Again,

we disagree. The “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 Const. Co., 94-2708, p. 7(La. 9/5/95), 660 So.2d 7, 12. When Newson

retained counsel to represent him in this matter, that counsel had him sign blank 1020

forms which were to be filled out as necessary. While still receiving benefits from

Spurgeon, Newson began work as a janitor at Louisiana Works. He received $240 a

week in compensation for this work. However, due to a misunderstanding with his

counsel’s secretary, his earnings were reported to Spurgeon as $240 a month. When

this error became evident at his deposition, Spurgeon informed Newson of the amount

of the overpayment they made, and Newson fully reimbursed Spurgeon. At trial, the

WCJ found that this was simply a clerical error and that Spurgeon failed to show that

Newson willfully misrepresented his earnings. There is nothing in the record which

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indicates that this finding is manifestly erroneous.

Newson answered Spurgeon’s appeal, claiming that the WCJ erred in failing to

award attorney’s fees for the alleged termination of indemnity benefits on June 26,

2002. Louisiana Revised Statutes 23:1221(1)(a) states that an employee is entitled to

TTDs for:

any injury producing temporary total disability of an employee to engage
in any self-employment or occupation for wages, whether or not the
same or similar occupation as that in which the employee was
customarily engaged when injured, and whether or not an occupation for
which the employee at the time of injury was particularly fitted by reason
of education, training, or experience . . . .

For an injury which results in an employee’s inability to earn wages equal to

ninety percent or more of his or her wages at the time of injury, that employee is

entitled to SEBs as prescribed by La.R.S. 23:1221(3)(a). An award for TTDs “shall

cease when the physical condition of the employee has resolved itself to the point that

. . . regular treatment by a physician is not required.” La.R.S. 23:1221(1)(d). Thus,

entitlement to workers’ compensation benefits is based on the claimant’s ability or

inability to earn wages. Mitchell v. Abbeville Gen. Hosp., 93-1146 (La.App. 3 Cir.

4/6/94), 635 So.2d 540. A change in medical condition can be a basis upon which an

employer may change a worker’s classification from TTDs benefits to SEBs. Joiner

v. Newberg Venture, 94-1533 (La.App. 3 Cir. 5/3/95), 657 So.2d 206.

It is clear that Newson’s benefits were not terminated on June 26, 2002, as they

were paid on July 11, 2002. Furthermore, there was a change in Newson’s medical

condition on May 30, 2002, when he was released to modified work with limited use

of his injured left hand. He was no longer entitled to TTDs. The workers’

compensation judge found that, even though Spurgeon continued to pay Newson in

weekly increments though June, he was only entitled to benefits on a monthly basis

as of the start of June 2002. This was reaffirmed on June 27, 2002, when Newson was

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again released to limited work duty. Accordingly, the WCJ found that, because his

benefits were due on a monthly rather than weekly basis, the benefits were not

untimely. We find no error in this ruling.

Newson also answered the appeal seeking an increase in attorney’s fees to cover

the cost of the work necessitated by Spurgeon’s appeal. The WCJ awarded claimant

$2,000 in attorney’s fees at the hearing level. We increase the award to $3,500 to

cover the extra work necessitated by this appeal.

Accordingly, for the reasons stated, the decision of the WCJ is affirmed as

amended. The award of attorney’s fees is increased to $3,500.00. All costs of this

appeal are assessed against Spurgeon.

AFFIRMED AS AMENDED.

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