Virgil Hebert v. C.G. Logan Construction, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 06-612

VIRGIL HEBERT

VERSUS

C.G. LOGAN CONSTRUCTION, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 04-08739
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Michael G. Sullivan, Elizabeth A. Pickett, and Billy Howard
Ezell, Judges.

AFFIRMED AS AMENDED.

Mark Alfred Ackal
Attorney at Law
P. O. Box 52045
Lafayette, LA 70505
(337) 237-5500
Counsel for Defendant/Appellant:
C.G. Logan Construction, Inc.

Jay Anthony Pucheu
Attorney at Law
P. O. Box 310
Marksville, LA 71351
(318) 253-5080
Counsel for Plaintiff/Appellee:
Virgil Hebert

EZELL, JUDGE.

C.G. Logan Construction (Logan) appeals the decision of the workers’

compensation judge awarding Virgil Hebert supplemental earnings benefits (SEB),

temporary total disability benefits (TTD), penalties and attorney fees resulting from

an alleged work-related accident.

Mr. Hebert worked for Logan as a laborer. On October 13, 2004, he alleges he

injured his back after cutting a piece of pipe with a chop saw. Mr. Hebert claims that

after bending down to cut the pipe, he rose with the saw in his hand and felt a sudden

weakness in his lower back. The incident was unwitnessed. Mr. Hebert did not

report the incident that day and continued to work the rest of his shift. Mr. Hebert did

not return to work the next week, claiming he thought the injury would heal itself.

He did not notify anyone at Logan that he was not coming into work, or of the reason.

He did not seek medical attention.

On Saturday, October 23, 2004, ten days after the alleged accident, he had still

not notified anyone at Logan of his absence or any reason therefore. That night, Mr.

Hebert saw Kent Richie, the owner of Logan at a local bar. After being asked why

he had not been to work, Mr. Hebert told Mr. Richie that he has suffered an injury on

the job.1 Mr. Richie told Mr. Hebert to come into the office and file a workers’

compensation report on Monday. Mr. Hebert did not show up to file report until

Wednesday.

After the workers’ compensation injury report was filed, Mr. Hebert was sent

to Dr. Gillespie twice by Logan. Dr. Gillespie found that Mr. Hebert had a back

sprain and recommended light work and physical therapy. Mr. Hebert never returned

to work for Logan and it denied his workers’ compensation claim. Mr. Hebert then

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There is conflicting testimony as to the content and duration of this conversation.

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filed this workers’ compensation suit seeking medical and indemnity benefits.

The workers’ compensation judge awarded Mr. Hebert SEB for the time period

between the date of the accident, October 13, 2005, through January 10, 2005, the

date prior to Mr. Hebert’s appointment with Dr. McCann. The workers’

compensation judge awarded TTD from January 11, 2005, through December 20,

2005. These TTD were to continue subject to the rights of the parties under the

Workers’ Compensation Act. Finally, the workers’ compensation judge awarded

$2,000.00 in penalties for the failure to approve continuing medical care, $2,000.00

in penalties for failure to pay indemnity benefits, and $7,500.00 in attorney fees to

Mr. Hebert. From this decision, Logan appeals.

In its first assignment of error, Logan claims that the workers’ compensation

judge erred in concluding Mr. Hebert had sustained an injury by accident suffered in

the course and scope of employment. For the following reasons, we disagree.

In a workers’ compensation case, as in other cases, the appellate court’s review

of factual findings is governed by the manifest error or clearly wrong standard. Smith

v. La. Dep’t of Corr., 93-1305 (La. 2/28/94), 633 So.2d 129. Whether a claimant has

carried his burden of proof and whether testimony is credible are questions of fact to

be determined by the workers’ compensation judge. Harrison v. Baldwin Motors,

03-2682 (La.App. 1 Cir. 11/3/04), 889 So.2d 313, writ denied, 05-249 (La. 4/1/05),

897 So.2d 609.

A workers’ compensation claimant has the burden of establishing by a

preponderance of the evidence that an accident occurred on the job and that he

sustained an injury. Holiday v. Borden Chem., 508 So.2d 1381 (La.1987). 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

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doubt upon the worker’s version of the incident and (2) the worker’s testimony is

corroborated by the circumstances following the alleged incident. Bruno v. Harbert

Int’l, Inc., 593 So.2d 357 (La.1992). Corroboration of the worker’s testimony may

be provided by the testimony of co-workers, spouses, friends, or by medical evidence.

Id. Barring circumstances that cast suspicion on the reliability of the worker’s

uncontradicted testimony, the fact finder should accept the testimony as true when

determining whether the worker has discharged his burden. Brown v. Kwok Wong,

01-2525 (La.App. 1 Cir. 12/20/02), 836 So.2d 315.

Furthermore, when factual findings are based on determinations regarding the

credibility of witnesses, the manifest error standard demands great deference to the

findings of the trier of fact, for only the fact finder can be aware of the variations in

demeanor and tone that bear so heavily on the listener’s understanding and belief in

what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where two permissible

views of the evidence exist, the fact finder’s choice between them cannot be

manifestly erroneous or clearly wrong. Stobart v. State, Through Dep’t. of Transp.

and Dev., 617 So.2d 880 (La.1993).

The workers’ compensation judge stated in his oral ruling that he felt this case

hinged on the credibility of the witnesses. He found the testimony of Mr. Hebert to

be credible. Mr. Hebert was consistent in his testimony and in his accounts to his

doctors and employers as to how he sustained his injury ) that he injured his back

while standing up after bending over to cut a pipe with a chop saw. The workers’

compensation judge found that Mr. Hebert’s testimony was corroborated by the

medical records of Dr. Gillespie and Dr. McCann, who both found Mr. Hebert to have

a back sprain. Dr. Gillespie placed Mr. Hebert on light duty, with no lifting over

twenty pounds. Dr. McCann placed Mr. Hebert on no work at all. Both doctors

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recommended physical therapy for Mr. Hebert.

While the record certainly contains facts and testimony that could call Mr.

Hebert’s version of the accident into question, the workers’ compensation judge

found him to be a credible witness. As such, we owe his decision on this issue great

deference. Based on the weight the workers’ compensation judge gave to Mr.

Hebert’s testimony and the medical records of the treating physicians, there exists a

reasonable factual basis for the finding of the workers’ compensation judge that Mr.

Hebert proved he sustained a work-related injury. Accordingly, “if the [factfinder’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.” Sistler v. Liberty Mut. Ins. Co.,

558 So.2d 1106, 1112 (La.1990). Therefore, we can afford no merit to this

assignment of error.

Logan next claims that the workers’ compensation judge erred in finding that

Mr. Hebert is entitled to SEB, claiming that he was unable to prove that he was

incapable of earning ninety percent of his wages due to his work-related injury.

Again, we must disagree.

An employee is entitled to receive SEB if he sustains a work-related injury that

results in his inability to earn ninety percent or more of his average pre-injury wage.

La.R.S. 23:1221(3)(a). The employee bears the burden of proving, by a

preponderance of the evidence, that the work-related injury resulted in his inability

to earn that amount under the facts and circumstances of the individual case. Lafleur

v. Alec Elec., 04-3 (La.App. 1 Cir. 12/30/04), 898 So.2d 474, writs denied, 05-276,

05-277 (La. 4/8/05), 898 So.2d 1287, 1288.

Mr. Hebert was awarded SEB from the date of the accident until January 10,

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2005. During this time, Dr. Gillespie had placed Mr. Hebert on light-duty work, with

a weight restriction of twenty pounds. The record establishes that to perform the

work required of him at Logan, Mr. Hebert would be forced to lift pipes weighing

between twenty and thirty pounds, a chop saw of the same weight, and manhole

covers weighing around one hundred pounds. The light-duty restriction clearly

prevented him from performing his prior job. The workers’ compensation judge

found that Logan did not show any job available to Mr. Hebert that paid him ninety

percent of his pre-accident wages. We can find no manifest error in this conclusion.

Next, Logan argues that the workers’ compensation judge erred in awarding

TTD to Mr. Hebert, as it alleges he did not prove he was physically unable to work.

We disagree. On January 11, 2005, Dr. McCann restricted Mr. Hebert from all work

after examining his back. This restriction ran until early March, 2005. This fact

clearly proves that Mr. Hebert was unable to work during that period. This claim is

without merit. However, Logan alternatively argues that TTD, if awarded, should

have been terminated in early March, 2005. We agree with Logan that TTD should

have ended at that time.

Mr. Hebert last saw Dr. McCann on February 2, 2005. At that time, Dr.

McCann again diagnosed Mr. Hebert with the same sprain, again recommended

physical therapy, and again placed Mr. Hebert on no work. However, the restriction

was to last only four weeks, or until March 8, 2005. After the February appointment,

Mr. Hebert never went back to Dr. McCann. While he did see another doctor, no

restrictions we placed on him after his February appointment with Dr. McCann.

Additionally, Mr. Hebert stated that he did not even take all the pain medications Dr.

McCann prescribed for him. He admitted to helping his brother-in-law on painting

jobs at this time, and while he stated he was concerned about how it would affect his

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back, he felt as if he could resume his job at Logan around April or May. There is no

proof in the record that Mr. Hebert could not work after March 8, 2005. Accordingly,

the award of TTD past this date is in error.

Finally, Logan claims that the workers’ compensation judge erred in awarding

penalties and attorney fees for the failure to pay medical and indemnity benefits. An

employer avoids the imposition of penalties and attorney fees by satisfying its

continuing obligation to investigate, assemble, and assess factual information prior

to it denying benefits. Wright v. Cypress Gen. Contractors, Inc., 05-700 (La.App. 3

Cir. 12/30/05), 918 So.2d 526, writ denied, 06-238 (La. 4/24/06), 926 So.2d 553.

We find that Logan failed to meet this continuing obligation. The

adjuster/investigator assigned to Mr. Hebert’s claim, Phillip Moory, testified that

prior to speaking with Mr. Hebert, he had already begun to suspect fraud based on

interviews with employees of Logan. However, he had no noted or documentation

of these interviews. He stresses that the denial was based in part on allegations about

a prior accident involving Mr. Hebert’s back, despite there being discrepancies

among Logan personnel and himself as to how the alleged accident was discovered.2

Mr. Moory testified that he denied the claim after speaking with Mr. Hebert on

November 2, 2004, prior to Mr. Hebert being seen by any medical doctor. After

Mr.Hebert was diagnosed with a sprain by Dr. Gillespie, Logan’s doctor of choice,

no change was made at all in the manner in which his case was handled. The

workers’ compensation judge found that the claim was denied on mere suspicion of

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Moreover, the accident in question was in 1996, eight years prior to this claim. Mr. Hebert
was in a rollover accident. The hospital admission form mentioned trauma to the back, although no
damage was ever found. Mr. Hebert claimed to never suffer from back pain as a result of the auto
accident, and Logan employees testified that he was clearly able to work after the 1996 accident
without back problems. Despite Mr. Moory’s and Logan’s constant referrals to this accident, the
workers’ compensation judge found this accident to be unrelated and completely irrelevant to the
case at hand. We completely agree with the workers’ compensation judge’s assessment of this
matter.

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fraud. Mere suspicion is not enough to discontinue benefits. Bushnell v. S. Farm

Bureau Cas. Ins. Co., 271 So.2d 267 (La.App. 3 Cir. 1972). We find no error in the

award of penalties and attorney fees.

For the above reasons, the decision of the workers’ compensation judge is

amended to terminate the award of TTD to Mr. Hebert after March 8, 2005.

Otherwise, the decision is affirmed. Costs of this appeal are to be split by the parties.

AFFIRMED AS AMENDED.

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