Nathan Wright v. Cypress General Contractors

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-700

NATHAN WRIGHT

VERSUS

CYPRESS GENERAL CONTRACTORS, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 03-06104
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Glenn B. Gremillion,
Judges.

AFFIRMED AS AMENDED.

Mark Zimmerman
4216 Lake Street
Lake Charles, LA 70605
(337) 474-1644
Counsel for Plaintiff/Appellee:
Nathan Wright

Christopher R. Philip
P. O. Box 2369
Lafayette, LA 70502-2369
(337) 235-9478
Counsel for Defendant/Appellee:
Louisiana United Businesses Assoc. Self-Insureds Fund

Michael J. Taffaro
Stemmans & Alley
668 S. Foster Drive, Suite 101
Baton Rouge, LA 70806
(225) 231-1288
Counsel for Defendant/Appellant:
Cypress General Contractors, Inc.

GREMILLION, Judge.

The defendant, Cypress General Contractors, Inc., appeals the judgment

of the workers’ compensation judge awarding the plaintiff, Nathan Wright, weekly

indemnity benefits as a result of a work-related injury and penalties and attorney’s

fees. For the following reasons, we affirm.

FACTS

At the heart of this dispute is the confusion caused by the fact that

Wright suffered two work-related accidents. Wright was employed as a surveyor by

Cypress General, although his job duties entailed more than just surveying. On July

3, 2001, he was in a catch basin attempting to join lengths of pipe when a concrete

pipe fell off the trackhoe and hit his left leg. In his accident report, Wright noted that

his left knee, ankle, and foot were affected in the incident. On July 9, 2001, Dr. Alan

Hinton, an orthopedic surgeon, diagnosed him as suffering a probable superficial

peroneal sensory nerve injury in his left leg.

Wright suffered a second accident on March 14, 2002, when his foot

slipped as he was dismounting a trackhoe via its bucket. This caused him to hit his

right shin on the bucket and land heavily on his left leg. The March 22, 2002

accident report lists the affected areas as his right shin, ankle, and foot. On March 21,

2002, he was treated at the Hunter McGuire Medical Center for cellulitis in his right

shin. Thereafter, Dr. Stephen Flood, an orthopedic surgeon, performed an

arthroscopic surgery on his left knee on November 18, 2002, to repair a torn

meniscus. Dr. Flood now recommends that he undergo further arthroscopic surgery

due to a probable retearing of the meniscus. Cypress General refused authorization

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for this procedure and terminated Wright’s weekly indemnity benefits on August 3,

2003.

Wright filed a Disputed Claim for Compensation against Cypress

General and its workers’ compensation insurer, Bridgefield Casualty Insurance

Company, based on the termination of his benefits and their failure to authorize

treatment recommended by Dr. Flood. He also sought penalties and attorney’s fees

based on their arbitrary and capricious termination of his benefits. Wright filed a

second Disputed Claim for Compensation against LUBA, Cypress General’s workers’

compensation carrier at the time of his July 2001 work-related injury. Cypress

General denied liability for Wright’s injury.

Following a trial on the merits, the workers’ compensation judge took

the matter under advisement. In oral reasons for judgment, he found that Wright

suffered a work-related injury to his left knee as a result of the March 14, 2002

accident, that his average weekly wage was based on an hourly wage of $30 per hour

in a forty-hour work week, and that he was entitled to the reinstatement of his

indemnity and medical benefits. The workers’ compensation judge found that

Bridgefield was responsible for Wright’s benefits, as the March 14, 2002 accident

caused his disability, and he dismissed all claims against LUBA. He further awarded

$2000 in penalties and $7000 in attorney’s fees based on Cypress General’s arbitrary

and capricious termination of Wright’s benefits. A judgment was rendered in this

matter on February 18, 2005. Cypress General has suspensively appealed this

finding.

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ISSUES

Cypress General raises four assignments of error on appeal. It argues

that the workers’ compensation judge erred in finding that Wright proved a causal

relationship between his left-knee injury and his work-related accident, in finding that

his average weekly wage was based on a $30 per hour pay scale, and in awarding

penalties and attorney’s fees based on its allegedly arbitrary and capricious actions.

Additionally, Wright has filed an answer to appeal seeking additional attorney’s fees

for work performed on appeal.

WORK-RELATED ACCIDENT

An employee who is injured as a result of a work-related accident will

receive compensation benefits from his employer. La.R.S. 23:1031(A).

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 the
circumstances following the alleged incident. West v. Bayou Vista
Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13
Louisiana Civil Law Treatise, Workers' Compensation, § 253 (2d
Ed.1980). Corroboration of the worker’s testimony may be provided by
the testimony of fellow workers, spouses or friends. Malone & Johnson,
supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991)].
Corroboration may also be provided by medical evidence. West, supra.

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.”
West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381,
1383 (La.1987). 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.
Gonzales v. Babco Farms, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.),
writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

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Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992).

Cypress General argues that the workers’ compensation judge erred in

finding that Wright suffered a work-related injury to his left knee on March 14, 2002.

It further argues that he is not entitled to the presumption that this accident caused his

disability since he had suffered three prior left-knee injuries and complained of pain

in his knee prior to the accident.

Wright admitted that he was involved in two separate accidents, but

testified that his knee injury arose from the March 14, 2002 accident. He stated that

the first accident left his left leg bruised and sore from his hip to his foot, but never

prevented him from working. This was confirmed by his wife, Christine. He was

treated once by Dr. Hinton and diagnosed as suffering from a probable superficial

peroneal sensory nerve injury in his left leg. His co-worker, Sam Schexnailder, who

witnessed the accident, testified that Wright only complained generally about his leg

after this accident, but not his left knee.

Wright testified that the second accident left his right shin badly bruised,

scratched, and cut and his left knee very sore. He stated that he was originally

concerned about his right shin, which developed cellulitis. Cypress General sent him

to Hunter McGuire on March 21, 2002, which diagnosed that condition and then

released him for work. Christine stated that he limped, complained of knee pain, and

had trouble sleeping after this accident. Schexnailder confirmed that Wright had a

harder time getting around the job site following the incident. Gavin Abshire,

Cypress General’s general manager, admitted that this accident occurred.

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Wright stated that his knee worsened until he was seen by Dr. Dale

Bernauer, an orthopedic surgeon. A May 20, 2002 MRI of the left knee revealed a

possible “bucket handle” tear of the meniscus, effusion, and a possible Baker’s cyst.

Dr. Bernauer referred Wright to his partner, Dr. Flood, who performed arthroscopic

surgery on the knee on November 18, 2002. Wright said that he has not worked since

his surgery.

Wright admitted to two prior left-knee-injuries. One was a high school

football injury, and the other occurred after he fell off of a barge in 1990. He stated

that he was examined at Baptist Hospital in Orange, Texas, following this incident

and was released to return to work.

Cypress General questioned Wright concerning several medical records

introduced into evidence. The Hunter McGuire record lists his chief complaint as

right leg pain. A January 8, 2003 record from Proactive Therapy states that he

suffered a work-related knee injury in late summer 2001. This record further states

that he was treated by Dr. Hinton for a while, before seeking treatment from Dr.

Flood. Cypress General further questioned Wright regarding a May 2002 patient

history form for Open Air M.R.I., which states that he was experiencing left knee pain

the previous nine months. Wright confirmed that this was his statement, but

explained that his knee had bothered him from time to time. Cypress General further

questioned him concerning an April 14, 2003 report from Dr. James Perry, which

states that he injured his left knee on July 3, 2001, when a pipe fell on him. However,

Dr. Perry testified that as he saw Wright post-operatively, he did not delve into the

etiology of his knee injury.

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Dr. Flood testified that he initially thought that Wright’s injury had

resulted from the pipe falling on his knee. He stated that he first learned that Wright

was involved in two separate accidents at the May 29, 2003 rehabilitation conference

with Angie Benoit, a rehabilitation consultant with Jus-Mar. Benoit summarized the

outcome of that meeting in a letter to Dr. Flood:

The consultant then discussed with you the issue of Mr. Wright’s
03/14/02, work related injury to his right tibia. You stated your patient
would have no additional restrictions due to this injury. However, you
did express confusion regarding Mr. Wright’s workers’ compensation
injury of 03/14/02, to his right tibia, and your current treatment of this
claimant’s left knee. When you questioned Mr. Wright, who was
present for this conference, about his left knee injury, your patient stated
his knee was injured during a previous work related accident in July of
2001, when a concrete pipe struck his left leg. Mr. Wright stated that he
was evaluated by Dr. Perry, Orthopedic Surgeon, immediately following
this accident and was released to dull duty activities.

You reported information regarding a previous work related injury to
Mr. Wright’s left knee of July 2001 and subsequent treatment by Dr.
Perry was not indicated by your patient in his medical history. You
therefore requested Mr. Wright provide you with a complete addendum
to his medical history as soon as possible, which would be reviewed
with him, and dictated into his medical chart by you in his presence.
Additionally, you recommended Mr. Wright contact Dr. Perry’s office
immediately, forwarding all information regarding the treatment of his
left knee by this physician to you.

Subsequent to the conference, Dr. Flood testified that he obtained and

reviewed Dr. Hinton’s medical records, had further discussions with Wright, and

reevaluated his records. On October 14, 2003, he noted that Dr. Hinton’s July 9,

2001 medical record stated that Wright had suffered a probable superficial peroneal

sensory nerve injury of his left leg, but no left knee injury. Based on this report, Dr.

Flood felt that Wright injured his knee as a result of the March 14, 2003 accident,

rather than aggravated a preexisting problem.

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On November 14, 2003, Dr. Flood again related Wright’s left-knee

injury and the need for surgery to the March 14, 2002 accident. Moreover, on

December 12, 2003, he testified that he reexamined Wright’s patient questionnaire

of April 15, 2002, completed by him prior to seeing Dr. Bernauer. Dr. Flood stated

that the questionnaire cleared up any confusion as to the cause of Wright’s knee

injury. In the document, Wright described his accident: “FELL DOWN GETTING

OFF EQUIPMENT, PIECE OF CONCRETE PIPE DROPPED ON LEFT LEG.” Dr.

Flood stated that he initially thought this statement involved one incident. Once he

understood that two separate incidents had occurred, he noted this finding on the

questionnaire and initialed it. He wrote that the first incident, “FELL DOWN

GETTING OFF EQUIPMENT,” was the acute problem for which Wright was

seeking treatment, and that the second incident, “PIECE OF CONCRETE DROPPED

ON LEFT LEG,” was a prior problem treated by Dr. Hinton.

Dr. Flood opined that Wright’s left-knee injury was caused by the March

14, 2002 accident. He based his opinion on the absence of findings by Dr. Hinton

that Wright suffered a knee injury following the July 3, 2001 accident and his own

finding of a knee injury subsequent to the March 14, 2002 accident. Although he

admitted that the July 3, 2001 accident might have caused some of the problems in

Wright’s knee, Dr. Flood did not believe that it caused the lateral meniscal tear. He

explained that a glancing blow, even by a large object, does not commonly cause such

tears. Moreover, he stated that a bucket-handle tear typically results in a swollen

knee within two to five hours of its occurrence, as a result of bleeding in the knee,

even if it does not cause acute pain.

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Donna Hill, Bridgefield’s claims adjustor, only started administering

Wright’s file in February 2004; thus, her only knowledge of actions taken prior to that

date was based on the records contained in the file. She stated that Wright’s

indemnity benefits were terminated on August 3, 2003, mainly because his

explanation regarding the March 14, 2003 accident kept changing.

Prior to and including the May 29, 2003 rehabilitation conference, Hill

testified that Dr. Flood never related Wright’s injury to the March 2002 accident.

Rather, she said that he related it to the accident where Wright was hit by the concrete

pipe. Subsequently, she stated that she reviewed Dr. Flood’s reports of October 14,

2003, November 14, 2003, and December 12, 2003, which related Wright’s knee

injury to the March 14, 2002 accident. She testified that these reports failed to clarify

which accident caused Wright’s knee injury, as they changed the date of the accident

(March 14, 2002, rather than July 3, 2001), and the injury suffered (left knee rather

than right shin).

After receiving the reports, she stated that Bridgefield reviewed Wright’s

file again and noted these inconsistencies along with several others. She pointed to

Dr. Perry’s report which said that Wright injured his knee after being hit in the leg

with a concrete pipe on July 3, 2001. She further noted the Proactive Physical

Therapy report which said that Wright suffered a work-related knee injury in late

summer 2001, received treatment from Dr. Hinton, underwent surgery by Dr. Flood,

and experienced persistent problems up until the surgery. However, despite this

confusion, Hill admitted that Bridgefield never sought a clarification from Dr. Flood

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as to the cause of Wright’s left-knee injury nor did it provide him with Dr. Hinton’s

records so that he could review them.

Benoit testified with regard to the May 29, 2003 rehabilitation

conference. She stated that Dr. Flood released Wright from his right tibia injury and

agreed that he could perform light to medium duty work as pertaining to his knee

injury. While discussing the knee injury, she said that Dr. Flood became confused

concerning the workers’ compensation injury to Wright’s right tibia and his treatment

of the left knee. Benoit testified that Wright, who was present at the conference,

informed Dr. Flood that he had previously injured his left knee when hit by a concrete

pipe. Following the conference, she stated that she was told by Bridgefield to place

Wright’s file on hold.

After carefully reviewing the record, we find that the workers’

compensation judge was presented with overwhelming evidence that Wright suffered

a work-related injury to his left knee. Further, there is no dispute that he was

employed by Cypress General at the time of his injury. The confusion which arose,

and to which Cypress General and Bridgefield have clung, is the fact that the two

incidents occurred within eight months of each other, both involved the left knee, and

both were recounted by Wright when providing full historical information to medical

personnel subsequent to the March 14, 2002 accident. Moreover, we would not be

deciding this matter had Cypress General not changed workers’ compensation

insurers during the interim of the two incidents. Unfortunately for Wright, this union

of circumstances put him between the proverbial rock and a hard place, leaving him

to fend for himself while pursuing his claim against the two insurers.

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In reaching his decision, the workers’ compensation judge stated:

Now, few if any medical reports and narratives are self-
explanatory, but the medical evidence in this case, at first glance and
even at first reading, presents something less than an instantaneously
clear picture of the claimant’s treatment history. But it’s not as puzzling
as it may appear at first blush. I think, in fact, what happened is that
there was an unfortunate confluence involving a claimant who can best
be described as somewhat abrupt and terse, and a physician who, for
whatever reasons just didn’t accurately comprehend what the patient
was telling him. This assessment generally is applicable, or at least
considered, in matters involving the allegation of fraud; but fraud is not
involved here on either side. It’s a communication problem, not one of
honesty.

I think Mr. Wright injured his left knee seriously enough in the
March 14, 2002 (sic) to require surgery and disablement, and that Dr.
Flood, while reviewing the medical referral documentation, incorrectly
assumed an inappropriate relationship between that accident and the
earlier one on July the 3rd, 2001. I can’t see how any other reasonable
conclusion can be reached other than that, given the language of the
medical notes of Dr. Hinton, Dr. Flood, and Dr. Bernauer.

We find that these reasons accurately explain how the alleged confusion

and inconsistencies arose in this matter, resulting in Wright’s claim. Rather than

seeking a clarification from Dr. Flood in order to clear up the matter, Bridgefield

terminated Wright’s indemnity and medical benefits. This was in direct contradiction

of its “continuing duty to investigate, to assemble, and to assess factual information

before denying benefits.” Thomas v. Alliance Compressors, 04-1034, p. 5 (La.App.

3 Cir. 12/8/04), 889 So.2d 424, 428, writ denied, 05-0086 (La. 3/18/05), 896 So.2d

1010 (quoting George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d

1200, 1209)). Dr. Flood described the symptoms arising from a bucket-handle tear

of the meniscus. None of these symptoms were exhibited by him after his July 3,

2001 accident, as none were noted by Dr. Hinton six days later. Plus, Dr. Flood

stated that landing heavily on the left leg could cause this type of injury, whereas a

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glancing blow to the leg normally does not result in such a tear. Thus, it was

reasonable for the workers’ compensation judge to find that in the absence of an

intervening accident, Wright’s knee injury occurred on March 14, 2002, and that

Bridgefield is the covering insurer.

Moreover, we find no error in the workers’ compensation judge’s award

of penalties and attorney’s fees. Bridgefield failed to take reasonable steps in

determining the exact etiology of Wright’s work-related injury after receiving the

allegedly confusing information from Dr. Flood. As stated above, this breached their

continuing duty to investigate his claim. Accordingly, the award of $2000 in

penalties and the $7000 in attorney’s fees is affirmed.

AVERAGE WEEKLY WAGE

In this assignment of error, Cypress General argues that the workers’

compensation judge erred in determining Wright’s average weekly wage based on a

pay scale of $30 per hour rather than the $10 per hour it claimed to pay him for his

labor.

Wright, who began working for Cypress General in 1998, testified that

in addition to surveying, he also supervised workers, estimated job costs, performed

carpentry work, operated heavy equipment, finished cement, and liaised with clients.

He stated that Cypress General initially paid him $30 per hour, with overtime pay of

$45 per hour. At some point, Wright testified that Cypress General began paying him

wages of $10 per hour, along with $20 per hour for the use of his personal van, four-

wheeler, and surveying equipment. He said that this was done in order to help

Cypress General save money on its workers’ compensation coverage and not via an

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agreement between them. Although he was paid to use his own van, Wright stated

that Cypress General paid for its fuel, tires, and upkeep through his company credit

card. He testified that his one-second electronic total surveying station cost $6000

brand new and that the only upkeep associated with it was recharging the batteries.

Wright admitted that he received two checks from Cypress General and

that taxes were taken out of the $10 per hour check, but not the $20 hour check. In

2001, he earned $24,315, based on his $10 per hour wage, and $48,380, based on the

$20 per hour amount. In 2002, he earned $19,720, based on the $10 per hour wage,

and $43,040, based on the $20 per hour amount.

Christine agreed with Wright’s testimony concerning his initial wages

with Cypress General. She stated that his pay later changed to $30 per hour with no

overtime, with this amount divided between two checks. She said that Cypress

General indicated that it was less complicated for them to pay him in this manner.

Schexnailder testified that he is paid a truck allowance by Cypress

General of $100 per week and not an hourly rate of $20 per hour.

Abshire stated that Wright was hired as a surveyor by Cypress General

and that his job duties included establishing lines, levels, laying out projects, and

interpreting plans. Abshire testified that he was initially paid $30 per hour until an

agreement was reached between them to pay him $10 per hour for his labor and $20

per hour for the rental of his van, four-wheeler, trailer, and surveying equipment. He

explained that taxes were taken out of the check representing Wright’s labor, but not

out of the rental check.

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Abshire stated that Cypress General has never paid a surveyor $30 per

hour and explained that Wright was only paid that amount because he used his own

equipment. At one point, he stated that Wright wanted Cypress General to purchase

new surveying equipment. However, he said that Wright decided to purchase the

equipment himself after being told that his payment agreement would be renegotiated

if Cypress General owned the surveying equipment.

Subsequent to Wright’s accident, Abshire testified that Cypress General

purchased its own surveying equipment and hired a surveyor to replace him. He said

that the surveyor, Darren Sargeant, is licensed and has a college degree, unlike

Wright, and is not paid $30 per hour. However, Abshire admitted that Wright did

more than just surveying for Cypress General, such as designing deck forms for

bridges.

Sargeant testified that he has been employed by Cypress for one-and-a-

half years. He stated that he has a college degree in computer science and has been

involved in the surveying industry for fifteen years. He testified that he is a Surveyor

In Training, but indicated that he had just sat for his Professional Land Surveyor

license. Sargeant testified that he only performs surveying work for Cypress General

and that he earns $17.50 per hour. He stated that the industry would not bear paying

$30 per hour for a surveyor, but admitted that he would not work for only $10 per

hour.

In finding that Wright’s average weekly wage was based on $30 per hour

rather than $10 per hour, the workers’ compensation judge stated:

Disingenuous is the most charitable, certainly not the most accurate,
description that can be given to the employer’s claim, which he made

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repeatedly with a straight face. Unflinching, the employer’s
representative said that during the two years prior to the disabling
accident, he paid more than $40,000 in van and surveying equipment
upkeep to keep this $10-an-hour employee. Pressed on cross-
examination for a reason of this bifurcation of income, the employer’s
representative was hard-pressed to explain how this arrangement
evolved. It was just done, he said. Unexplained was why the
employer’s credit card was used to purchase tires and gas for the van
and why the claimant here bought his own surveying equipment.
Defense counsel did all he could reasonably be expected to do to make
some sense out of this tale, but it flies squarely in the face of common
sense and customary business practice.

Generally, payments received by an employee for the use of his tools and

equipment are not included the calculation of his average weekly wage. Hood v. C.J.

Rogers, Inc., 94-1162 (La.App. 3 Cir. 3/8/95), 654 So.2d 371 (citing Wex A. Malone

& H. Alston Johnson III, 14 Louisiana Civil Law Treatise, Workers’ Compensation

§ 327 (3d ed.1994)). Nonetheless, in Nash v. Premium Products of Louisiana, Inc.,

95-389 (La.App. 3 Cir. 11/2/95), 690 So.2d 43, we held that payments made to a

worker for the use of his truck and equipment should be included in determining his

average weekly wage. We held that the payments were associated with the worker’s

wages as his hourly wages decreased when the payments began and the employer

discontinued the payments after his injury, but retained possession of his truck and

equipment.

In this instance, we find no error in the workers’ compensation judge’s

determination that the $20 per hour should be included in Wright’s average weekly

wage computation. His wages decreased by $20 per hour corresponding with the

commencement of the $20 per hour payment for the use of his equipment. Also, we

agree with the workers’ compensation judge that it is inconceivable that an employer

would pay in excess of $40,000 per year to retain an employee who only earns $10

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per hour, especially when the equipment it is supposedly renting costs $6000 and it

provides all maintenance for the employee’s van. Although Cypress General only

pays Sargeant $17.50 per hour, Wright was obviously a more valuable employee, who

could perform many other functions than just surveying. Accordingly, the judgement

of the workers’ compensation judge is affirmed.

ANSWER TO APPEAL

Wright has answered Cypress General’s appeal and seeks additional

attorney’s fees for work performed in conjunction with this appeal. Based on our

findings, we award him an additional $3000 in attorney’s fees.

CONCLUSION

For the foregoing reasons, the workers’ compensation judge’s judgment

is affirmed. It is further ordered, adjudged, and decreed that an additional $3000 in

attorney’s fees is awarded to the plaintiff-appellee, Nathan Wright. The costs of this

appeal are assessed to the defendant-appellant, Cypress General Contractors, Inc.

AFFIRMED AS AMENDED.

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