Joseph K. Fontenot v. Pyramid Alloys, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1743

JOSEPH K. FONTENOT

VERSUS

PYRAMID ALLOYS, INC.

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 02-06596
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, C.J., Sylvia R. Cooks, and Oswald A.
Decuir, Judges.

AFFIRMED.

Richard Mary
Moss & Associates
814 South Washington Street
Lafayette, LA 70501
Telephone: (337) 237-9680
COUNSEL FOR:
Defendant/Appellant - Pyramid Alloys, Inc.

Aaron Wayne Guidry
Porter & Guidry, L.L.C.
P. O. Drawer 53320
Lafayette, LA 70505
Telephone: (337) 289-0626
COUNSEL FOR:
Plaintiff/Appellee - Joseph K. Fontenot

THIBODEAUX, Chief Judge.

In this workers’ compensation case, the defendant, Pyramid Alloys, Inc.

(Pyramid), appeals the ruling of the Workers’ Compensation Judge (WCJ), finding

that the plaintiff, Joseph K. Fontenot, proved by a preponderance of the evidence that

he sustained a work-related accident. The WCJ awarded Mr. Fontenot past and future

supplemental earnings benefits in the amount of $300.00 per week, $2,000.00 in

penalties and $6,500.00 in attorney fees. We affirm.

I.

ISSUES

1) Was the WCJ manifestly erroneous in finding that Mr. Fontenot was

entitled to supplemental earnings benefits?

2) Was the WCJ manifestly erroneous in awarding Mr. Fontenot

penalties and attorney fees?

II.

FACTS

Mr. Fontenot was a warehouse manager for Pyramid, a company that

sells welding rods. Pyramid is based in Humble, Texas. However, Mr. Fontenot

worked in its Broussard, Louisiana office. Mr. Fontenot’s duties included unloading

packages of welding rods with a forklift, making deliveries, doing invoice tickets and

taking inventory.

Mr. Fontenot claims that on August 10, 2001, he was injured while

working in the course and scope of his employment. Mr. Fontenot testified that as he

was trying to change the fuel pump on Pyramid’s forklift, he felt something pull in his

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back and a burning sensation down his legs. He went to Lafayette General Hospital

(LGH) complaining of lower back pain and pain in his legs.

On his first visit to LGH, Mr. Fontenot received an epidural injection and

was sent home. He went back to the emergency room and was admitted for several

days. Dr. Luiz C. DeAraujo ran several tests on Mr. Fontenot, including an MRI,

which revealed ruptured discs in his back. Mr. Fontenot went back to LGH in

February of 2002 complaining of back pain. He was given another epidural injection

and was sent home. He came back a week later and received another MRI which

revealed the same ruptured disc as in August 2001. Mr. Fontenot had surgery for his

back on March 5, 2002. However, after his surgery, he sought treatment at Lafayette

Bone and Joint Clinic because his symptoms had worsened. Pyramid paid Mr.

Fontenot wages until he was discharged in November 2002 but did not pay his

medical expenses.

Mr. Fontenot filed a disputed claim for compensation on September 3,

2002. The WCJ ruled that Mr. Fontenot proved by a preponderance of the evidence

that he sustained a work-related injury. The WCJ awarded Mr. Fontenot past and

future supplemental earnings benefits in the amount of $300.00 per week from

December 1, 2002, $2,000.00 in penalties and $6,500.00 in attorney fees. Thereafter,

this appeal was filed.

III.

LAW AND DISCUSSION

Standard of Review

“Factual findings in workers’ compensation cases are subject to the

manifest error or clearly wrong standard of appellate review.” Banks v. Indus.

Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d 551, 556.

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Under 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. Stobart v. State, through DOTD, 617 So.2d 880

(La.1993). Where there are two permissible views of the evidence, a factfinder’s

choice between them can never be manifestly erroneous or clearly wrong. Id.

Accordingly, if the trier of fact’s findings are reasonable in light of the record

reviewed 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.

Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

Work-Related Accident

Louisiana Revised Statutes 23:1031 requires a workers’ compensation

claimant to initially establish personal injury by accident arising out of and in the

course of his employment. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992).

Louisiana Revised Statutes 23:1021 defines an accident for purposes of workers’

compensation:

(1) “Accident” means an unexpected or unforseen
actual, identifiable, precipitous event happening suddenly
or violently, with or without human fault, and directly
producing at the time objective findings of an injury which
is more than simply a gradual deterioration or progressive
degeneration.

In Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir. 12/16/98), 724 So.2d

853, 855, this court discussed the claimant’s burden of proving that an accident

occurred:

To recover workers’ compensation benefits, a
claimant must establish by a preponderance of the evidence
that an accident occurred on the job site and that an injury
was sustained. Garner v. Sheats & Frazier, 95-39 (La.App.
3 Cir. 7/5/95); 663 So.2d 57. A worker’s testimony alone
may be sufficient to discharge this burden of proof,
provided two elements are satisfied: (1) no other evidence

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discredits or casts serious doubt upon the worker’s version
of the incident; and (2) the worker’s testimony is
corroborated by the circumstances following the alleged
incident. [Id.] at 60. The evidence is viewed in a light
most favorable to the claimant. When there is proof of an
accident and attendant disability, without an intervening
cause, it is presumed that the accident caused the disability.

In the present case, Mr. Fontenot presented the only testimony regarding

the occurrence of an accident since there were no witnesses to the accident. Mr.

Fontenot’s neighbor, Mr. Wayne Forrester, testified that he always saw him working

on the forklift. However, he did not witness the accident that day.

Mr. Fontenot testified that on August 10, 2001, he was injured while

working in the course and scope of his employment. Mr. Fontenot recalled that he

was trying to change the fuel pump on Pyramid’s forklift when he felt something pull

in his back and a burning sensation down his legs. He testified that he called Mr.

David Alexander, Pyramid’s owner, and told him that he needed to go to the hospital

because he was in pain.

“In determining whether the worker has discharged his or her burden of

proof, the trial court should accept as true a witness’s uncontradicted testimony,

although the witness is a party, absent ‘circumstances casting suspicion on the

reliability of this testimony.’” Bruno, 593 So.2d at 361 (quoting West v. Bayou Vista

Manor, Inc., 371 So.2d 1146 (La.1979)). Included in the evidence contradicting Mr.

Fontenot’s testimony is the stipulated testimony of Mr. Alexander. Mr. Alexander

reported that Mr. Fontenot only advised him of the accident after he went to the

hospital and that Mr. Fontenot was working on his personal pickup truck at the time

of the accident. Pyramid also claims that LGH records of August 10, 2001 indicate

that Mr. Fontenot was injured on the afternoon of August 9, 2001 and not on August

10, 2001. In addition, LGH records of August 11, 2001 indicate that Mr. Fontenot

was injured while operating a backhoe instead of a forklift. Pyramid contends that the

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WCJ incorrectly found that the testimony of Mr. Fontenot was plausible and that he

presented sufficient evidence for finding that his injury was work-related.

Clearly, there are two permissible views of the evidence regarding

whether working on the forklift was the cause of Mr. Fontenot’s accident. The

standard by which we review lower court decisions requires great deference to the

trier of fact’s findings, when, as in the present case, such findings are based on

determinations regarding the credibility of witnesses. Blackwell v. Kershenstine,

97-210 (La.App. 3 Cir. 2/27/97), 690 So.2d 247, writ denied, 97-0545 (La. 3/14/97)

689 So.2d 1390. The WCJ stated that Mr. Fontenot was a credible witness. She

stated that his medical history was consistent with the exception of mention of a

backhoe, which she attributed to the doctor not knowing the difference between a

backhoe and a forklift. It is apparent that the WCJ chose to believe the testimony of

Mr. Fontenot over that of Mr. Alexander.

We find that the record supports the conclusion that Mr. Fontenot had an

accident while in the course and scope of his employment with Pyramid. His medical

records sufficiently corroborate that he injured his back on or about August 10, 2001,

as a result of an on-the-job accident. Accordingly, the WCJ’s finding that Mr.

Fontenot sustained an accident resulting in a back injury is not in error and affirmed.

Penalties and Attorney Fees

The WCJ awarded Mr. Fontenot penalties in the amount of $2,000.00 and

attorney fees in the amount of $6,500.00 because Pyramid failed to pay his medical

bills and workers’ compensation benefits associated with the back injury he sustained

as a result of his work-related injury.

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Louisiana Revised Statutes 23:1201 provides for the payment by the

employer and/or its insurer of workers’ compensation benefits. In La.R.S. 23:1201(F)

it provides in pertinent part:

Failure to provide payment in accordance with this
Section shall result in the assessment of a penalty in an
amount equal to twelve percent of any unpaid
compensation or medical benefits or fifty dollars per
calendar day, whichever is greater, for each day in which
any and all compensation or medical benefits remain
unpaid, together with reasonable attorney fees for each
disputed claim; however, the fifty dollars per calendar day
penalty shall not exceed a maximum of two thousand
dollars in the aggregate for any claim.

Subparagraph (2) of La.R.S. 23:1201(F) states: “This Subsection shall not apply if

the claim is reasonably controverted or if such nonpayment results from conditions

over which the employer or insurer had no control.”

Pyramid argues that Mr. Fontenot’s claim was reasonably controverted

because his claim arose out of a January 2, 2002 accident and not from a work-related

accident on August 10, 2001. Pyramid argues that on Mr. Fontenot’s May 22, 2002

visit to Lafayette Bone and Joint Clinic, he indicated on a medical history form that

he was injured in January 2002.

Mr. Fontenot recalled that, after his August 2001 injury, Mr. Alexander

told him to go to the emergency room and to take care of his injury. He also testified

that he called Mr. Alexander from the office trailer before he went to the hospital

because he did not know how to handle the situation in that he did not have an

insurance card. Mr. Fontenot’s hospital records reveal that on August 10, 2001 he

was seen at LGH and was given a steroid injection. He was admitted to the hospital

on August 11, 2001 and was diagnosed with acute lumbosacral radiculopathy. After

a MRI was performed, his final diagnosis was central right-sided disc herniation at

L4-5.

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Mr. Fontenot went to LGH again in February, 2002. He underwent

another MRI which revealed the same disc herniation at L4-5, as in August, 2001. In

a letter dated February 18, 2002, Dr. Ilyas Munshi stated that he reviewed Mr.

Fontenot’s MRI from his February visit to LGH, and that Mr. Fontenot would benefit

if he underwent surgery. The medical evidence sufficiently links the accident of

August 10, 2001 to his surgery of March 5, 2002. There is insufficient evidence that

Mr. Fontenot sustained an accident on January 2, 2002 or, that if he did, it was the

reason for his surgery.

Whether the WCJ finds that an employer reasonably controverts a claim

for benefits is a question of fact. Lyons v. Bechtel Corporation and AIU, 00-0364

(La.App. 3 Cir. 12/27/00), 788 So.2d 34, writ denied, 01-0282 (La. 3/23/01), 787

So.2d 996. We find no manifest error in the WCJ’s finding that Pyramid did not

reasonably controvert Mr. Fontenot’s claim. Therefore, we affirm the WCJ’s award

of penalties and attorney fees.

Additional Penalties and Attorney Fees

Mr. Fontenot argues that he is entitled to additional penalties and attorney

fees because Pyramid did not pay its obligation under the judgment. Mr. Fontenot

contends that Pyramid had an obligation to pay the judgment under La.R.S.

23:1201(G), and its obligation was not suspended by filing a devolutive appeal. Mr.

Fontenot did not file an answer to this appeal. Failure to file an answer pursuant to

La.Code Civ.P. art. 2133 precludes this court from considering this claim.

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IV.

CONCLUSION

For the above reasons, the judgment appealed from is affirmed. Costs

of this appeal are assessed to Pyramid Alloys, Inc.

AFFIRMED.

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