Daryl Lebert v. McNeese State University

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 05-856

DARYL LEBERT

VERSUS

MCNEESE STATE UNIVERSITY

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 02-09240
SAM L. LOWERY, WORKER’S COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Oswald A. Decuir, Judges.

AFFIRMED AS AMENDED.

Marcus Miller Zimmerman
Attorney at Law
4216 Lake Street
Lake Charles, LA 70605
(337) 474-1644
Counsel for Plaintiff/Appellee:
Daryl Lebert

Adam L. Ortego Jr.
Assistant Attorney General
901 Lakeshore Dr., #820
Lake Charles, LA 70601
(337) 491-2844
Counsel for Defendant/Appellant:
McNeese State University

SAUNDERS, Judge.

This is a workers’ compensation case. Claimant Daryl Lebert was injured on

October 1, 1999, while employed at McNeese State University. The workers’

compensation judge held that Mr. Lebert was entitled to indemnity benefits from the

date of termination of payment by McNeese State University, with a credit of thirty-

nine weeks of indemnity for the amount of time Claimant was employed elsewhere.

The court further held that Claimant was entitled to reasonable and necessary medical

benefits for the work related injury. In addition, penalties in the amount of $2,000.00

and attorney fees in the amount of $6,000.00 were awarded to Claimant. We affirm

the decision of the trial court and award an additional $2,500.00 in attorney fees for

work done on appeal.

FACTS AND PROCEDURAL HISTORY

Claimant Daryl Lebert, a painter and maintenance worker at McNeese State

University, was injured on October 1, 1999 when he attempted to lift a five-gallon

bucket of sheet rock mud. Mr. Lebert injured his left shoulder and cervical area. He

left work the day of the injury and returned to work 10 days later with a release slip

allowing him to perform light duty work. On October 14, 1999, Dr. Drez, an

orthopedist, diagnosed Mr. Lebert with a left rotator cuff and acromioclavular sprain.

The x-rays taken of Claimant’s left shoulder revealed no orthopedic problems. Dr.

Drez recommended that Mr. Lebert receive physical therapy over the course of two

weeks, and then he could return to work as tolerated. On October 22, 1999, Mr.

Lebert was terminated from McNeese State University for disciplinary reasons. On

October 28, 1999, Mr. Lebert returned to Dr. Drez’s office. Dr. Drez saw little

improvement and ordered an MRI of Claimant’s left shoulder. On November 4,

1999, the MRI was negative. Dr. Drez found that Mr. Lebert’s symptoms were

secondary to rotator cuff strain with resulting tendinitis in the shoulder, and on

November 8, 1999, he injected Claimant’s left shoulder, almost completely

eliminating the pain. Again, he recommended physical therapy and stated that Mr.

Lebert could return to light duty work.

On November 15, 1999, suspecting that Mr. Lebert may be suffering from a

cervical disc disease, Dr. Drez referred him to another orthopedist, Dr. James Perry,

for an evaluation of his cervical area. Dr. Perry took x-rays of the neck on November

30, 1999. The x-rays of the neck were negative, and Dr. Perry diagnosed Mr. Lebert

with a cervical strain and recommended physical therapy. No MRI of the neck was

conducted. Dr. Perry noted on January 18, 2000 that Mr. Lebert’s neurological exam

was stable and that he had made “significant” progress. He recommended continuing

physical therapy. On February 1, 2000, Dr. Perry recommended that Mr. Lebert

return to work without restrictions after finding that his systems were negative, his

cervical range of motion was normal, and his neurological exam was stable. He

concluded that Mr. Lebert had a resolved cervical sprain. Although they had

terminated his employment in October 1999, McNeese State University continued to

pay indemnity benefits to Mr. Lebert until February 6, 2000, when they were notified

of his release by Dr. Perry.

More than two years later, on October 29, 2002, Mr. Lebert returned to Dr.

Perry’s office, complaining of pain in his shoulder and cervical area. He saw no other

physicians between his last visit to Dr. Perry’s office in February of 2000 and the

October 29, 2002 visit. At this time, Dr. Perry diagnosed Mr. Lebert with bursitis and

tendinitis in the left shoulder and ordered another MRI of the left shoulder which was

normal. Dr. Charles Lim reviewed the MRI and found that there was no evidence of

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a rotator cuff tear and no definite signs of bony edema or bursitis. He noted that there

was little change from the November 4, 1999 MRI, which was also negative.

Mr. Lebert filed a disputed claim for compensation at the Office of Workers’

Compensation against McNeese State University on December 12, 2002, claiming

that he was owed supplemental earnings benefits. Following a hearing on a Rule to

Show Cause, the Workers’ Compensation Court ordered that Claimant be allowed to

see Dr. Lynn Foret, an orthopedic specialist, as his choice of physician and that he be

evaluated as soon as possible. On January 28, 2004, Dr. Foret ordered an MRI of the

cervical area and found that Mr. Lebert had a tear in the left shoulder rotator cuff and

a herniated disc in the cervical area. He concluded that Claimant may require surgery

in his left shoulder and neck. An independent medical examination was performed

by Dr. Daniel Yanicko, Jr. on May 4, 2004. From this examination, he determined

that there was a left shoulder strain and sprain with underlying rotator cuff disease

and a chronic strain and sprain of the cervical spine. He also noted that the x-rays and

an MRI of the cervical area suggested a C5-6 disc herniation. The cervical MRI and

the reports of Drs. Foret and Yanicko were never sent to or reviewed by Dr. Perry, nor

was he asked by Appellant to comment on the findings or opinions of the other

physicians.

This matter came to trial on January 27, 2005. After the matter was taken

under advisement, the court issued oral reasons for judgment on March 9, 2005. The

Workers Compensation Court held that Mr. Lebert was entitled to supplemental

earnings benefits from the date of termination of temporary total disability benefits,

which was February 6, 2000, with a credit for the thirty-nine weeks of indemnity

during which Claimant was employed. The court further held that Claimant was

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entitled to reasonable and necessary medical care, including, but not limited to, the

treatments recommended by Dr. Foret and Dr. Yanicko. The court awarded $2,000

in penalties and $6,000 in attorney fees to Claimant. The judgment was signed on

March 28, 2005. Defendant now appeals.

ASSIGNMENTS OF ERROR

1) The trial court erred in ruling in favor of Claimant.

2) The trial court erred in denying the defendant’s exception of prescription.

3) The trial court erred in awarding penalties and attorney fees to Claimant.

STANDARD OF REVIEW

In workers’ compensation cases, the factual findings of the trial court are

subject to the manifest error standard of review. Smith v. Louisiana Dep’t of

Corrections, 93-1305, p.4 (La.2/28/94), 633 So.2d 129, 132; Freeman v.

Poulan/Weed Eater, 93-1530, pp.4-5 (La.1/14/94), 630 So.2d 733, 737-38. In

applying the standard, the appellate court must determine not whether the trier of

fact’s conclusion was right or wrong, but that it was reasonable. Freeman, 630 So.2d

at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d

1120, 1127 (La.1987). Where there are two permissible views of the evidence, a

factfinder’s choice between them can never be manifestly erroneous. Stobart, 617

So.2d at 882. Therefore, “if the [factfinder’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, 1112 (La.1990).

LAW AND ANALYSIS

Assignment of Error 1:

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In order for a claimant in a workers’ compensation case to receive benefits for

temporary total disability, he must prove by clear and convincing evidence that he is

physically unable to engage in any employment or self-employment due to his injury.

Veazie v. Gilchrist Const. Co., 04-118 (La.App. 3 Cir. 6/2/04) 878 So.2d 742, writ

denied, 04-1692 (La. 10/8/04), 883 So.2d 1018. In order for a claimant to establish

by clear and convincing evidence that he is unable to engage in any type of

employment, he must introduce objective medical evidence. Ratcliff v. Brice Bldg.

Co., 03-624 (La.App. 5 Cir. 11/12/03), 861 So.2d 613. Workers’ compensation laws

are construed liberally in favor of the claimant. However, the claimant carries the

burden of proving by a preponderance of the evidence that the injury caused his

disability. Id.

In this case, there is no dispute that Mr. Lebert injured himself while he was

working at McNeese State University. Claimant argues that this injury disabled him.

Disability is presumed if before the occurrence of the accident, claimant was in good

health, and commencing with the accident, the disabling symptoms appeared and

continuously manifested themselves thereafter, provided there is a reasonable

possibility of a causal connection between the accident and the disabling condition.

There is also a presumption of disability if the nature of the accident together with

other facts of the case raise a natural inference through human experience of such a

causal connection. Walton v. Normandy Village Homes Assoc. Inc., 475 So.2d 320

(La. 1985); Jeanise v. Cannon, 04-1049(La.App. 3 Cir. 2/23/05), 895 So.2d 651, writs

denied, 05-0785, 05-0788 (La. 5/13/05), 902 So.2d 1021). Appellant, on the other

hand, argues that although Mr. Lebert was injured on the job in October 1999, his

cervical sprain was resolved by February 2000, as Dr. Perry had determined. They

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argue that another injury must have occurred after his termination from McNeese State

University, causing him to suffer a herniated disc as was shown in the 2004 MRI of

Claimant’s cervical area. Appellant points specifically to the x-rays and MRI of

November 1999 taken a month after Mr. Lebert’s injury and an MRI taken two years

after the date of Mr. Lebert’s injury. Appellant points out that the first x-rays and MRI

show no objective signs of injury, and the subsequent MRI shows little change from

the previous one. However, an MRI taken in 2004 shows major injury to Claimant’s

neck and shoulders. Therefore, Appellant asserts that there must have been an

intervening incident which caused this injury. The 2004 MRI arguably shows a

shoulder injury that was not readily apparent in the previous x-rays and MRIs.

Appellant, however, failed to get an analysis or opinion on these findings from Dr.

Perry, or any other physician, for that matter. Therefore, there is no medical evidence

in the record showing that the 2004 MRI reflects a new injury. We cannot determine

from the record whether it is a new injury or whether it is an injury that was simply not

picked up by the previous scans. Appellant also argues that there is a neck injury that

was not previously apparent. However, the first x-rays and MRI conducted in 1999

as well as the MRI ordered in 2002 did not include the cervical area; they were only

of the left shoulder. The first time an MRI of the cervical area was conducted was in

2004. We, therefore, cannot determine whether the herniated disc was a result of the

original accident or whether it was the result of a hypothetical intervening accident,

as Appellant asserts. Appellant has offered no evidence to prove that an intervening

accident did, in fact, cause this injury. Without such evidence, we do not find the trial

court’s holding to be unreasonable.

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The Appellant further argues that Claimant made false representations and that

any right he may have had to collect from McNeese State University was forfeited by

making such representations. In order for a claimant to forfeit his workers’

compensation benefits, he must have: (1) made a false statement or representation; (2)

willfully made the statement or misrepresentation; and (3) made the statement or

misrepresentation for the purpose of obtaining or defeating any benefits or payments.

Lowe’s Companies, Inc. v. Leblanc, 02-730 (La.App. 3 Cir. 2/5/03), 839 So.2d 434.

Appellant points out a long list of misrepresentations allegedly made by Mr. Lebert.

First, Appellant points out that Mr. Lebert testified in his deposition and at trial that

he was not terminated from his employment at St. Patrick Hospital. However, Mr.

Lebert’s supervisor at St. Patrick’s, Mr. Savario, testified that Mr. Lebert had been

terminated. Mr. Lebert also testified that he did not undergo any kind of physical

examination upon accepting his employment, and while working at the hospital, he

could only use one arm. To the contrary, Mr. Savario testified that Mr. Lebert did

have to pass a physical in order to work at St. Patrick’s. He also testified that Mr.

Lebert performed his work satisfactorily, that he appeared to have no difficulty

performing the job, never complained of any pain, and he was fired for reasons

unrelated to his job performance. While Mr. Lebert’s testimony conflicts with Mr.

Savario’s testimony, there is no conclusive evidence as to whose testimony is

accurate. Appellants further assert that Mr. Lebert testified in his deposition that he

worked only for St. Patrick’s Hospital and Winters Construction subsequent to his

termination from McNeese State University. However, at trial, he testified that he had

worked at Realty Source after he worked at St. Patrick’s. These issues did not need

to be and were not resolved by the Workers’ Compensation Court. They are collateral

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issues, the resolution of which have no direct bearing on the outcome of this case.

Therefore, even if it were shown that Claimant was inaccurate, such inaccuracy on

collateral issues would not support a finding of willful misrepresentation. Lowes

Companies, Inc., 839 So.2d 434.

Next, Appellant claims that Mr. Lebert testified falsely about his physician of

choice. At a hearing on that issue, Mr. Lebert testified that McNeese sent him to see

Dr. Drez, and insisted that he did not see Dr. Seep, his family doctor, after the injury.

Appellant points out that Mr. Lebert’s testimony differed in a deposition taken on

March 4, 2004.

Q. Now, didn’t you also see him [Dr. Seep] after your
October ’99 injury?

A. Well, he’s my – he’s my regular doctor.
***
Q. And that you went to see – what I have is that you went
to see Michael Seep initially, Dr. Michael Seep.

A. I went to see Charlene Broussard at McNeese, and she
set me up with my doctor and he sent me to – or he –
somehow I ended up at Dr. Drez.

While Mr. Lebert’s recollection of which doctor he saw when may not be accurate, it

is not relevant to the determination of his entitlement to benefits, and therefore, cannot

support a finding of willful misrepresentation.

Appellant also argues that Mr. Lebert testified that Dr. Perry did not treat him

for his neck complaints, which is contradicted by the fact that there were x-rays of Mr.

Lebert’s neck taken on November 30, 1999. Dr. Perry also diagnosed Mr. Lebert with

a cervical strain and referred him for physical therapy. Despite the testimony of Mr.

Lebert, the medical evidence and doctor’s testimony has been entered into the record,

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and stands on its own. The fact that Mr. Lebert’s recollection is inaccurate does not

support a finding of willful misrepresentation.

Finally, Appellant urges that Mr. Lebert claimed that he was fired from

McNeese because of his workers’ compensation claim, but in fact, he was fired

justifiably. We find this to be yet another collateral issue wholly irrelevant to Mr.

Lebert’s entitlement to benefits under the law of workers’ compensation. While Mr.

Lebert’s opinion as to the reason for his firing may be inaccurate, it is clear that

whether or not Mr. Lebert was fired due to his claim has no direct bearing on his

entitlement to benefits for the accident.

The trial court did not find that Mr. Lebert made any misrepresentation or

fabrication of the essential facts for the purpose of obtaining workers’ compensation

benefits. We agree. Accordingly, we affirm the decision of the trial court.

Assignment of Error No. 2:

In its second assignment of error, Appellant argues that the trial court erred in

denying its exception of prescription. Appellant argues that Mr. Lebert’s claim for

benefits prescribed under La.R.S. 23:1209 and should have been dismissed. Louisiana

Revised Statute 23:1209 provides:

A. In case of personal injury, including death
resulting therefrom, all claims for payments shall be forever
barred unless within one year after the accident or death the
parties have agreed upon the payments to be made under
this Chapter, or unless within one year after the accident a
formal claim has been filed as provided in Subsection B of
this Section and in this Chapter. Where such payments have
been made in any case, the limitation shall not take effect
until the expiration of one year from the time of making the
last payment, except that in cases of benefits payable
pursuant to R.S. 23:1221(3) this limitation shall not take
effect until three years from the time of making the last
payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or
(4). Also, when the injury does not result at the time of, or

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develop immediately after the accident, the limitation shall
not take effect until expiration of one year from the time the
injury develops, but in all such cases, the claim for payment
shall be forever barred unless the proceedings have been
begun within two years from the date of the accident.

Therefore, a claimant must file his claim for workers compensation benefits within:

(1) one year from the date of the accident; (2) one year from the date of the last

compensation payment for total disability or three years from the last payment of

partial disability; or (3) one year from the time the injury develops if not immediately

manifested, but, in any event, no more than two years after the accident. Iverstine v.

Albemarle Corp., 02-2555 (La.App. 1 Cir. 7/2/03), 852 So.2d 492, writ denied, 2003-

2583 (La. 12/12/03), 860 So.2d 1154. In the instant case, McNeese State University

was paying Mr. Lebert supplemental earnings benefits under La.R.S 23:1221(3) until

February 6, 2000. Therefore, because it specifically falls under the exception found

in La.R.S. 23:1209, Mr. Lebert’s claim for payment would not have been barred until

three years from the date of the last payment of supplemental earnings benefits by

McNeese State University. By filing on December 2, 2002, Mr. Lebert was well

within the three year prescriptive period.

Claimant maintains that his claim has not prescribed, but argues the Appellant

is precluded from now raising this objection, as it had never specifically pled this

exception. Louisiana Code of Civil Procedure Article 927 dictates that an objection

of prescription is raised through the peremptory exception and must be specifically

pled. However, a peremptory exception may be raised at any time, and at any stage

in the proceedings. Therefore, the issue of prescription is properly before us.

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The trial court did not err in denying Appellant’s exception of prescription, as

Claimant filed his claim within the three years allowed by La.R.S. 23:1209.

Accordingly, we find that this assignment of error lacks merit, and weaffirm the

holding of the trial court.

Assignment of Error No. 3

Appellant further argues that the trial court erred in awarding penalties and

attorney fees to the Claimant. Under La.R.S. 23:1201(F), a claimant in a workers’

compensation case has the burden of proving his entitlement to statutory penalties for

the employer’s refusal or failure to timely pay workers’ compensation benefits. To

avoid the imposition of penalties and attorney fees, the employer and its insurer must

provide factual and medical evidence to reasonably controvert a workers’

compensation claim. Bolton v. Mike Fleming Construction, 36,521 (La.App. 2 Cir.

12/11/02), 833 So.2d 1177. The employer must have an “articulable and objective

reason to deny benefits at the time it took the action.” Authement v. Shappert

Engineering, 02-1631 (La. 2/25/03), 840 So.2d 1181, 1188.

Under Bolton, penalties should be imposed only when there is no good faith or

just cause on the part of the employer and his refusal to pay the benefits. A workers’

compensation judge’s decision to award attorney fees and penalties is subject to the

manifest error standard of review. Bolton, 833 So.2d 1177.

Appellant asserts that Claimant’s rights to benefits were “reasonably

controverted” by the factual and medical information available to McNeese. It argues

that the doctors’ unrestricted release of Claimant, Claimant’s failure to report back to

his doctor for over thirty-three months, and his lack of veracity reasonably justify their

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opposition to the claim. However, Claimant submitted evidence, in the form of

physicians’ opinions, that was developed in 2004 which tended to support his claim

for disability. Although this evidence differed from evidence Appellant gathered from

Dr. Perry, it did not ask Dr. Perry to examine or give an opinion on this new medical

evidence. Appellant had a duty to investigate the claim, and could not simply ignore

the new evidence. Given the fact that Appellant chose not to investigate the new

medical evidence, it is difficult for them to prove the claim was reasonably

controverted. Therefore, we do not find that the trial court committed manifest error

in awarding attorney’s fees and penalties to Claimant. Accordingly, we affirm the trial

court’s award of attorney fees and penalties to Claimant.

Additionally, in the answer to the appeal, Claimant has prayed for an award of

additional attorney fees for work done on this appeal. We award Claimant $2,500.00

in attorney fees for work done on this appeal.

CONCLUSION

The judgment of the trial court is affirmed. Costs of the appeal are assessed

against Appellant. Additionally, Claimant is awarded $2,500.00 in attorney fees for

work done on appeal.

AFFIRMED AS AMENDED.

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