Mary D. Brumley v. Nantachie Oil Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 04-1404

MARY D. BRUMLEY

VERSUS

NANTACHIE OIL COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 2
PARISH OF RAPIDES, NO. 02-04813
JAMES L. BRADDOCK, WORKERS COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and James T. Genovese,
Judges.

AFFIRMED.

George Arthur Flournoy
Flournoy, Doggett & Losavio
P. O. Box 1270
Alexandria, LA 71309-1270
(318) 487-9858
Counsel for Plaintiff Appellant:
Mary D. Brumley

Paul Eric Harrison
Rabalais, Unland & Lorio
5100 Village Walk, Ste 300
Covington, LA 70433
(985) 893-9900
Counsel for Defendant Appellee:
Nantachie Oil Company

Max K. Jones, Jr.
Rabalais, Unland, etc.
5100 Village Walk, #300
Covington, LA 70433
(985) 893-9900
Counsel for Defendant Appellee:
Nantachie Oil Company

SAUNDERS, J.

The issues on appeal to this court arise from plaintiff’s appeal of the hearing

officer’s ruling in this worker’s compensation case. Plaintiff argues that the hearing

officer erred in failing to award supplemental earnings benefits (hereinafter referred

to as “SEB”), concluding that temporary total disability benefits (hereinafter referred

to as “TTD”) were paid for August 6, 2001, and failing to sanction defendant for

untimely payment of certain medical expenses. We affirm.

FACTS

On August 6, 2001, plaintiff was injured when she was pinned against a steel

railing by a vehicle driven by a customer who was trying to leave the premises. The

customer then drove over plaintiff’s left foot and she suffered a fibula fracture with

displacement of the ankle joint. Surgery was performed on the ankle and a plate was

inserted for stability. Shortly thereafter, plaintiff was released to return to work

without restriction.

Prior to the accident, she earned $225.00 per week as a gas station attendant

and was responsible for pumping gas, checking tire pressure and fluid levels,

sweeping, mopping, and stocking and shelving auto parts. Plaintiff stated that she

could perform all of these tasks before her injury but that they caused pain when she

performed them after she was released to work. She told her doctor about these

troubles but no follow up treatment was ordered, nor was any requested by plaintiff.

Dr. Garrison opined that plaintiff’s ankle healed properly and noted that there was no

evidence of weakness or misalignment. In fact, plaintiff eventually informed her

doctor that the problems lessened and reported a substantial decrease in both the pain

and swelling associated with the injury.

Despite being released to work without restriction, plaintiff only earns $175.00

for working thirty hours a week and claims that she experiences significant pain when

performing her duties. She further alleges that special allowances have to be made

for her to be able to work on this limited basis. For example, her nephew helps out

when she is too tired or in too much pain to work and she is allowed to take breaks

to elevate her foot when needed. This testimony is corroborated by her husband and

sister-employer.

PROCEDURAL HISTORY

Claimant filed a Disputed Claim for Compensation with the Office of Worker’s

Compensation. She alleged the existence of an occupational disease and numerous

other general complaints against her employer and the carrier. A hearing was held

and, on May 24, 2004, judgment was rendered denying plaintiff’s claim for

supplemental earnings benefits, imposing penalties in the amount of $4,450.00 and

attorney fees in the amount of $5,000.00 for untimely payment of indemnity benefits

and non-payment of medication expenses, denying all other claims for penalties and

attorney fees, ordering that plaintiff be reimbursed $75.97 for medication expenses,

and holding defendant responsible for all reasonable and necessary medical travel

expenses. Plaintiff then filed this appeal.

ASSIGNMENTS OF ERROR

1) The hearing officer erred, as a matter of law, by ignoring the lay
testimony of plaintiff, her husband and her employer, concerning the
extent of plaintiff’s disabling pain, and erroneously concluded that
plaintiff was not entitled to SEB.

2) Because defendant did no investigation and had no reasonable basis to
controvert plaintiff’s entitlement to benefits, the hearing officer erred in
refusing to award benefits and to assess 23:1201 sanctions for the

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nonpayment of indemnity benefits on August 6, 2001 and for the
untimely or non-payment of certain medical expenses.

LAW AND ANALYSIS

Findings of the trial court are reviewable on appeal, and the appellate standard

of review has been clearly established. A trial judge’s findings of fact will not be

disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State,

through Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993). “Absent ‘manifest error’

or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be

disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.

1990). “If the trial court or jury’s findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse, even though convinced

that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Id. at 1112

ASSIGNMENT OF ERROR NUMBER ONE

Plaintiff points this court to Hopes v. Domtar, 627 So.2d 676 (La.App. 3 Cir.

1993) in support of her argument that a plaintiff’s uncontradicted testimony regarding

the existence of a disability may be sufficient to satisfy the burden required for an

award of SEB. We acknowledge that the cited case is good law and does stand for

this proposition; however, based upon the record before us, we find that the case sub

judice is distinguishable from Hopes.

In that case, the treating physician limited the type of work that plaintiff could

perform. Id. No unrestricted release was issued. Id. Here, on the other hand,

plaintiff’s physician released her to return to work without restriction. Given the

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evidence of record, we conclude that the denial of SEB was not an abuse of

discretion. While it is true that plaintiff, her husband, and her sister, testified that

plaintiff continues to suffer pain and swelling in her ankle, this testimony is

contradicted by Dr. Garrison’s release to work and plaintiff’s statements regarding

the improvement of her condition. Plaintiff told Dr. Garrison that her condition had

significantly improved and she did not request further treatment. Dr. Garrison is

apparently of the same opinion as he never ordered further treatment for plaintiff. In

fact, he concluded that plaintiff’s injuries responded well to therapy, were sufficiently

healed, and would not limit her ability to work. Under these circumstances we cannot

say that the hearing officer committed manifest error in failing to award SEB benefits.

Plaintiff further argues that defendant offered no evidence that she was capable

of earning 90% of her pre-accident wages; therefore, she is entitled to SEB. We have

already concluded, however, that the hearing officer did not commit manifest error

in finding that plaintiff did not meet her burden of establishing a disability. Because

this burden was not satisfied, the burden of proving that plaintiff could earn 90% of

her pre-accident wages was never shifted to defendant. This argument, therefore, is

rendered moot by our determination regarding the existence of a disability. This

assignment lacks merit. The ruling of the hearing officer is affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment, plaintiff urges two errors. First, she argues that she was not

paid temporary total disability benefits for August 6, 2001, the date of the accident.

Second, plaintiff claims that certain medical expenses were not paid by defendant in

a timely fashion. We will first address the alleged non-payment of TTD benefits.

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Plaintiff argues that, based upon defendant’s payment records, it is evident that

no TTD benefits were paid for the date of the accident. The hearing officer

concluded that payments were, in fact, paid for that date. We agree. While it is true

that defendant’s records indicate that payment was made for the period of August 7,

2001 through August 13, 2001, the amount of compensation paid for this week

indicates that benefits were, indeed, paid. The injury occurred on the morning of

Monday August 6, 2001. On September 20, 2001, plaintiff was paid $150.01 for the

week during which the accident occurred. Likewise, she was paid $300.02 for the

two week period of August 14, through August 27. It is important to note that

plaintiff concedes that $300.02 is the proper compensation for two weeks as she has

not challenged this issue.

The amount paid for the two week period following the accident is exactly

twice the amount paid for the one week during which the accident occurred. If the

accident date was not included in the amount paid for that week, the sum paid would

have been less than $150.01 as that was the amount paid for one full week of benefits.

Accordingly, we find no manifest error in the hearing officer’s conclusion that the

benefits paid for the accident week included August 6, 2001. This ruling by the

hearing officer is affirmed.

Plaintiff also claims that the hearing officer erred in failing to impose sanctions

for defendants untimely payment of certain medical expenses. Plaintiff argues that

defendant failed to timely pay two medical bills, one from Professional Anesthesia

and one from Rapides General E.R. physicians. The hearing officer noted that there

was no evidence indicating when these bills were forwarded to defendant. As such,

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it was impossible to determine whether they were paid after sixty days had elapsed

as required for penalties and attorney fees. We find no manifest error in this

determination. Plaintiff bears the burden of establishing that these bills were not paid

within sixty days of receipt and we find no evidence of record that could establish the

date on which the bills were forwarded to defendant. Accordingly, we find no

manifest error in the hearing officer’s failure to impose penalties and attorney fees for

the untimely payment of these expenses. This ruling by the hearing officer is

affirmed.

CONCLUSION

The judgment rendered by the hearing officer is affirmed. All costs are

assessed against plaintiff.

AFFIRMED.

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