Dewitt Williams v. A-Jax Lumber Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-935

DEWITT WILLIAMS

VERSUS

A-JAX LUMBER COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 2
PARISH OF RAPIDES, NO. 00-05590 & 03-03326
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and John D. Saunders,
Oswald A. Decuir, James T. Genovese and Michael G. Sullivan, Judges.

THIBODEAUX, Chief Judge, dissents in part and assigns reasons.

SAUNDERS, J., dissents in part for the reasons assigned by Chief Judge
Thibodeaux.

DECUIR, J., dissents in part and assigns reasons.

SULLIVAN, J., dissents in part for the reasons assigned by Judge Decuir.

AFFIRMED IN PART AND REVERSED IN PART.

M. Blake Monrose
Hurlburt, Privat & Monrose
P. O. Drawer 4407
Lafayette, LA 70502-4407
(337) 237-0261
Counsel for Defendant/Appellant:
A-Jax Lumber Company

George A. Flournoy
Flournoy & Doggett
P. O. Box 1270
Alexandria, LA 71309-1270
(318) 487-9858
Counsel for Plaintiff/Appellee:
Dewitt Williams

DECUIR, Judge.

In this workers’ compensation suit resulting from a knee injury, both the

employee and the insurer appeal the judgment of the workers’ compensation judge.

The insurer, Capital City Insurance Company, appeals the award of supplemental

earnings benefits in favor of the employee, Dewitt Williams, as well as the award of

penalties, attorney fees, and vocational rehabilitation services, and the denial of its

claim for forfeiture of benefits. Williams appeals the denial of his claim for

compensation for a late-developing back injury, questions the award of a credit for

future medical expenses which may arise from the knee injury, and requests an

increase in the award of penalties and attorney fees. He also disputes the assessment

of court costs and certain evidentiary rulings made by the workers’ compensation

judge.

FACTS

Williams was employed as a millwright for A-Jax Lumber on September 20,

1999, when he fell in the lumber yard and injured his knee. He was diagnosed with

a tear in the medial meniscus which was repaired via arthroscopic surgery in February

of 2000. Although the surgery was without complication, Williams complained of

a difficult recovery, ongoing pain and popping in his knee and, eventually,

commencing in February of 2001, back pain. He continued to use a cane or crutches

for many months after surgery.

The workers’ compensation judge found Williams’ doctors noted no objective

symptoms and could not explain his ongoing complaints. Both doctors recommended

a functional capacity evaluation. Williams was not released by the doctors to return

to his full job duties, was not given a light duty assignment by his now defunct

employer, and was never offered vocational rehabilitation services by the insurer.

Based on these facts and the court’s review of the medical records in evidence, the

workers’ compensation judge found Williams met his burden of proof regarding his

knee injury and awarded supplementary earnings benefits as well as vocational

rehabilitation services. Also awarded was a $2,000.00 penalty for the failure to

provide rehabilitation services timely. The court denied benefits for Williams’ back

condition, noting there was no medical evidence to support a correlation between the

back complaints and the knee injury. Additionally, the court described Williams as

lacking in credibility, but found he did not willfully misrepresent his complaints for

the purpose of receiving benefits in violation of La.R.S. 23:1208. Therefore, the

insurer’s claim for fraud and forfeiture of benefits was denied.

DISCUSSION

In Coleman v. Ascension Enterprise, Inc., 03-1425 (La.App. 3 Cir. 4/14/04),

870 So.2d 1159, 1162, this court discussed the standard of review in a workers’

compensation case:

A workers’ compensation judge’s decision that a claimant has met his
burden of proof is a factual determination. As such, this determination
will not be overturned on review absent manifest error. An appellate
court will set aside a factual finding by a hearing officer only if the
record shows there was no reasonable basis for the finding and that the
finding was clearly wrong. Alexander v. Pellerin Marble & Granite,
93-1698 (La. 1/14/94), 630 So.2d 706; Stobart v. State Through DOTD,
617 So.2d 880 (La.1993). In order to reverse factual findings of a
workers’ compensation judge, an appellate court must determine that a
reasonable factual basis does not exist in the record to support the
finding and that the record establishes the finding is clearly wrong or
manifestly erroneous. Clay v. City of Jeanerette, 99-1421 (La.App. 3
Cir. 5/31/00), 768 So.2d 609, writ denied, 00-2006 (La. 10/27/00), 772
So.2d 124.

We have reviewed the testimony and medical evidence in the record and have

examined the factual findings of the workers’ compensation judge. The conclusion

that Williams is entitled to supplemental earnings benefits is supported by the medical

history, longstanding complaints of pain, and the absence of a medical release to

return to full duty at work. The finding that Williams is in need of rehabilitation

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services is likewise well supported. The court was satisfied that Williams offered

sufficient proof of his disability which prevented him from returning to his former

job; however, the court was not convinced by the medical evidence that Williams’

back pain was related to his knee injury and denied both indemnity and medical

benefits for that condition. The court further found no evidence of fraud on the part

of the claimant. We find no manifest error in these conclusions.

Also subject to the manifest error standard of review is the award of attorney

fees. The workers’ compensation judge awarded $4,000.00 for the work performed

by the claimant’s attorneys. This amount is reasonable and is supported by the

record. However, we find no basis in the record to award penalties to Williams for

the failure to reimburse certain travel and medication expenses, and we find no

manifest error in the evidentiary rulings complained of by Williams.

We turn now to Williams’ assignment of error regarding the credit given to the

insurer for future medical expenses. The workers’ compensation judge determined

that the medical expenses paid for the diagnosis and treatment of Williams’ back

problem were not owed. Therefore, the insurer was awarded a credit for all expenses

paid after March 16, 2001, “against any and all future medical expenses reasonably

and medically necessary for plaintiff’s knee injury.” In oral reasons for judgment, the

court commented, “I think it’s really doubtful that Mr. Williams will ever require any

further care for his knee.” Interestingly, in this appeal, Williams disputes the

propriety of the credit, while the insurer does not complain that the credit, in effect,

will never be realized.

Regardless of the effect of the credit, we find error in the award. While La.R.S.

23:1206 allows reimbursement of overpaid compensation benefits, we cannot say that

the medical expenses paid by the insurer for the diagnosis and treatment of Williams’

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back condition were necessarily overpaid benefits. The benefits were not paid by

mistake or as the result of fraud or oversight; rather, the diagnosis and cause of the

condition were still in question. Second, payments were made directly to the medical

providers and were not subject to the direction of the claimant, although he certainly

received the benefit of the payments. Finally, we find no legal precedent supporting

an award of a credit for improperly paid medical expenses, and we hesitate to

establish a right of reimbursement which may ultimately serve to penalize workers

who need an intensive variety of medical tests to diagnose a difficult or obscure

condition. The award of a credit for overpaid medical expenses, therefore, is

reversed.

Regarding the legal question of whether Williams was properly awarded a

$2,000.00 penalty for the insurer’s failure to timely provide rehabilitation services,

we note that the law governing penalty awards is that which was in effect at the time

the alleged statutory violation occurred. See Maynard v. Grey Wolf Drilling, 04-431

(La.App. 3 Cir. 10/20/04), 885 So.2d 1277. In this case, Williams filed a claim for

services in May of 2003. The applicable law at the time precluded an assessment of

penalties for the failure to provide rehabilitation. Chelette v. Riverwood Int’l USA,

Inc., 03-1483 (La. 10/17/03), 858 So.2d 412. Accordingly, the $2,000.00 penalty

awarded to Williams must be reversed.

The next issue is the assessment of court costs at the trial court level. Costs

were assessed to Williams, less a $30.00 charge cast to the insurer. While the

assessment of court costs is generally an exercise of the lower court’s discretion, in

this instance, a majority of the court finds manifest error in the ruling below. The

court finds that because Williams prevailed on the primary issues of supplemental

earnings benefits and vocational rehabilitation services, costs should have been

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assessed against the insurer, regardless of the several questions litigated at trial which

Williams lost. Accordingly, we reverse the assessment of costs and assign all costs

incurred at the trial level and in this appeal to the insurer.

Finally, a majority of this court finds merit to the employee’s request for

attorney fees for work done pursuant to this appeal. Taking into consideration the

particular circumstances of this case, the lower court’s $4,000.00 award of attorney

fees, and recent awards by this court, we find the highest reasonable award for work

done pursuant to this appeal is $2,500.00. See Sullivan v. PHI, 05-933 (La.App. 3

Cir. 2/1/06), 2006 WL 234719; Lebert v. McNeese State Univ., 05-856 (La.App. 3

Cir. 2/1/06), 2006 WL 233440; Halker v. Am. Sheet Metal, 04-1407 (La.App. 3 Cir.

3/16/05), 898 So.2d 629 In accordance with that finding, the majority awards

$2,500.00 to Williams. The author of this opinion, however, disagrees and dissents

from the foregoing award.

DECREE

For the above and foregoing reasons, the $2,000.00 penalty awarded to Dewitt

Williams and the credit for future medical expenses awarded in favor of the insurer

are hereby reversed, as is the assessment of costs at the trial level. In all other

respects, the judgment of the workers’ compensation judge is affirmed. Attorney fees

in the amount of $2,500.00 are awarded to Dewitt Williams for work performed in

this appeal, and costs of this appeal are assessed to Capital City Insurance Company.

AFFIRMED IN PART AND REVERSED IN PART.

5

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-935

DEWITT WILLIAMS

VERSUS

A-JAX LUMBER COMPANY

THIBODEAUX, Chief Judge, dissenting in part.

I dissent from the denial of the plaintiff’s claim for compensation for the

back injury. The record as a whole supports the plaintiff’s claim that the knee injury

aggravated or activated his low back injury. In my view, the record is clear that the

plaintiff did not have a disabling back pain before the knee injury. According to Dr

Katz, the treating orthopedist, and Dr. Drerup, the neurosurgeon, the back injury

could reasonably result from an altered gait. There is nothing in the record which

reasonably refutes these expert medical opinions.

Further, I dissent from the refusal to award penalties for the failure to

commence prompt vocational rehabilitation. The majority cites Chelette v.

Riverwood Int’l USA, Inc., 03-1483 (La. 10/17/03), 858 So.2d 412 for the proposition

that the applicable law at the time precluded an assessment of penalties for the failure

to provide rehabilitation. Chelette does not stand for that principle. Chelette granted

certiorari on one issue only. That issue was whether the third circuit erred in granting

a penalty award under La.R.S. 23:1201(F) when the employer had reduced SEB as

contrasted with failing to make timely payment of benefits. That was the sole issue

addressed by Chelette. Vocational rehabilitation is a benefit. Chelette opined that the

failure to commence payment of benefits authorizes the payment of penalties and

attorney fees under Section 1201(F). The majority apparently is relying on the dictum

in Chelette which said that “the sanction of penalties and attorney fees imposed by

LSA-R.S. 23:1201 is not directed at the vocational rehabilitation obligation of LSA-

R.S. 23:1226.” However, Chelette had nothing to do with this issue. The writ

granted in Chelette dealt with whether a penalty was owed for the reduction of SEB

versus the failure to make timely payment of benefits. Chelette cited the dissent in

Fontenot v. Reddell Vidrine Water District, 02-439 (La. 1/14/03), 836 So.2d 14 in

support of its failure to award penalties. That was simply and plainly wrong.

Finally, I would award a penalty for the failure to award mileage

reimbursement for 730 miles. The defendants paid $.28 cents per mile when $.30

cents per mile was owed. Moreover, a $2,000.00 penalty each for the failure to

reimburse two of three medication prescriptions from Dr. Katz for $574.38 should

have been ordered. Even if the back injury had been resolved or was unrelated to this

accident, the same medications would have been prescribed by Dr. Katz for the

plaintiff’s knee injury.

For the foregoing reasons, I respectfully dissent in part.

2

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-935

DEWITT WILLIAMS

VERSUS

A-JAX LUMBER COMPANY

DECUIR, J., dissenting.

While I authored the majority opinion, I write separately to express my

disagreement with a majority of this five-judge panel on two issues. First, I find no

error in the workers’ compensation court’s assessment of court costs at the trial level,

and I dissent from the majority’s reversal of that assessment. This case involved

primarily the employee’s back injury. The question of whether his back condition

was caused by his work-related injury, and was thus compensable, was resolved

against him. Therefore, I do not view the assessment against him as an abuse of

discretion. “A trial court is afforded great discretion in its assessment of court costs,

and can be reversed by an appellate court only on a showing of abuse of that

discretion. Westley v. Allstate Ins. Co., 05-100, p. 15 (La.App. 5th Cir. 5/31/05), 905

So.2d 1127, 1137.” Lee v. Constar, Inc., 05-633 (La.App. 5 Cir. 2/14/06), 2006 WL

328585, p. 11. The record shows no abuse of the workers’ compensation judge’s

great discretion, and I disagree with the majority’s ruling on this issue.

Second, I dissent from the majority’s decision to award attorney fees for work

performed in this appeal. Both the employee and the insurer filed appeals in this

matter. Williams assigned seven alleged errors for our review, while the insurer

assigned five alleged errors. Williams vehemently argued for a finding of causation

regarding his back condition, a position which a majority of this court has found to

be without merit. On other issues, Williams won some and lost some. This court has

previously denied attorney fees for work performed on appeal when the requesting

party fails to obtain relief on his own issues raised on appeal:

Considering Ms. Shell's request for an increase of attorney fees for work
done on appeal, we acknowledge that Ms. Shell successfully defended
her right to compensation in the amount awarded by the trial judge.
However, because she filed her own appeal on other issues, and was
ultimately unsuccessful in that regard, Ms. Shell is not entitled to an
increased award of attorney fees for work performed on appeal.

Shell v. Wal-Mart Stores, Inc., 00-0997, p.10 (La.App. 3 Cir. 3/21/01), 782 So.2d

1155, 1161. Accordingly, I dissent from the award made by the majority in this case.

Furthermore, I find the amount awarded to be an abuse of this court’s

discretion and respectfully dissent.