Carla Sowell v. Process Equipment

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1198

CARLA SOWELL

VERSUS

PROCESS EQUIPMENT

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2,
PARISH OF RAPIDES, NO. 05-00452,
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

AFFIRMED AS AMENDED.

M. Blake Monrose
Hurlburt, Privat & Monrose
Post Office Drawer 4407
Lafayette, Louisiana 70502-4407
(337) 237-0261
Counsel for Defendant/Appellant:
Process Equipment

Edward A. Kaplan
Attorney at Law
Post Office Box 12386
Alexandria, Louisiana 71315
(318) 448-0831
Counsel for Plaintiff/Appellee:
Carla Sowell

SULLIVAN, Judge.

Process Equipment appeals a workers’ compensation judgment in favor of its

former employee, Carla Sowell. For the following reasons, we affirm as amended.

Discussion of the Record

Mrs. Sowell filed a disputed claim for compensation alleging that she was

injured on August 21, 2004, while setting up a monorail on a job for Process

Equipment in Florence, South Carolina. At trial, she described being knocked to the

floor on her right side when her co-employee, Wayne Johnson, “wiggled” a piece of

equipment that she was holding after the monorail became jammed. Mrs. Sowell’s

husband, Wayne Sowell, who was working at the same job site but on another level,

testified that he arrived on the scene just after Mrs. Sowell fell and while she was still

on the floor. Mr. Sowell stated that he heard a “bam-slam” as he was walking

upstairs and that, when he got to the top of the stairs, he saw Mr. Johnson kneeling

beside her on the floor. Mr. Sowell then described how he and Mr. Johnson helped

his wife up and sat her in front of a window, where she requested to stay for about ten

minutes. Mr. Johnson, however, denied that he witnessed Mrs. Sowell having an

accident on the job.

Mrs. Sowell testified that she reported the accident later that day to Jeff

Bowden, the job foreman, who was away from the site at the time of the accident, and

to Roger Land, the safety man on the night shift, but that no one mentioned anything

to her about filling out an accident report. Mr. Land testified that Mrs. Sowell

reported to him that she had hurt her back while working with Mr. Johnson, but that

she did not want to go to the doctor because she thought it was only a muscle strain.

Mr. Land then told her to report the accident to Mr. Bowden and to Mike Williamson,

the company’s safety director. According to Mr. Land, Mrs. Sowell later told him

that she did report the accident to Mr. Bowden. Mr. Land also testified that he

assumed she had reported the accident to Mr. Williamson because at some point

Mr. Williamson called him about it, and Mr. Land told Mr. Williamson that

Mrs. Sowell told him that she hurt her back. However, both Mr. Bowden and

Mr. Williamson testified that they did not learn about the accident until after

Mrs. Sowell filed suit in January of 2005, and Mr. Williamson stated that Mr. Land

never told him that Mrs. Sowell had reported the accident to him.

After the accident, Mrs. Sowell continued to work on several jobs in other

states for Process Equipment, sometimes returning to her home in Jena, Louisiana,

between jobs. She first sought medical treatment on November 16, 2004, from

Dr. I. C. Turnley, Jr., reporting to him that she hurt her back two and a half months

earlier while pulling on a beam and has had pain since then. Dr. Turnley ordered an

MRI, which revealed marked spondylosis with discogenic and plate changes at L5-

S1; neural foraminal narrowing and facet hypertrophy bilateral at L5-S1 and right-

sided at L4-5, with clinical correlation for a right L4 and bilateral L5 radiculopathy

recommended; and a left paracentral disc bulge at L5-S1 contacting the left S1 nerve

root, with clinical correlation for left S1 radiculopathy recommended. Mrs. Sowell

was also seen by at least two other physicians, one at LSU Hospital in Shreveport,

Louisiana, and one at Huey P. Long Medical Center in Pineville, Louisiana, who

recommended physical therapy. She finally did begin a physical therapy program in

March of 2005, but that course was discontinued in April of 2005 after she reported

no significant change in pain and that some exercises “made her back pain worse.”

She testified that she is no longer able to work, as she cannot sit or stand very long

due to back and leg pain. She acknowledged that three years before the present

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accident she reported to Dr. Turnley that she had low back pain for about a year, but

she also stated that she had never had this type of back pain before.

At the close of the evidence, the workers’ compensation judge (WCJ) found in

favor of Mrs. Sowell, awarding her supplemental earnings benefits (SEB) at the

maximum compensation rate and on a zero-earnings basis, $4,000.00 in penalties for

the failure to pay indemnity benefits and medical expenses, and $5,000.00 in attorney

fees.

Work-Related Injury

In its first assignment of error, Process Equipment argues that the WCJ erred

in finding that Mrs. Sowell was injured in the course and scope of her employment,

given that her co-employee, Mr. Johnson, denied that an accident occurred and that

Mrs. Sowell continued to work and did not seek medical treatment for nearly three

months after the accident.

In oral reasons, the WCJ stated that he found corroboration of Mrs. Sowell’s

accident in the testimony of Mr. Land, who stated that she reported the accident to

him and that he later told this to Mr. Williamson; in the testimony of her husband,

who saw her on the floor with Mr. Johnson kneeling beside her; and in the medical

records of Dr. Turnley, who recorded that Mrs. Sowell reported hurting her back

about two and a half months previously while pulling on a beam. In making these

credibility determinations, the WCJ specifically noted the conflict in the testimony

of Mr. Land and Mr. Williamson, in that Mr. Land stated that he told Mr. Williamson

that Mrs. Sowell reported the accident to him, whereas Mr. Williamson denied that

Mr. Land ever told him that the accident had been reported to him. The WCJ also

found that any inconsistent statements regarding Mrs. Sowell’s prior back problems

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were insignificant, considering that there was no evidence of any medical care for

those problems and that Mrs. Sowell continued to work for Process Equipment during

that time.

In Dean v. Southmark Construction, 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112,

117 (citations omitted), the supreme court discussed the standard of review in

workers’ compensation cases as follows:

In worker’s compensation cases, the appropriate standard of
review to be applied by the appellate court to the OWC’s findings of fact
is the “manifest error-clearly wrong” standard. Accordingly, the
findings of the OWC will not be set aside by a reviewing court unless
they are found to be clearly wrong in light of the record viewed in its
entirety. Where there is conflict in the testimony, reasonable evaluations
of credibility and reasonable inferences of fact should not be disturbed
upon review, even though the appellate court may feel that its own
evaluations and inferences are as reasonable. The court of appeal may
not reverse the findings of the lower court even when convinced that had
it been sitting as the trier of fact, it would have weighed the evidence
differently. The determination of whether injury occurred in the course
and scope of employment is a mixed question of law and fact.

Further elaboration on the manifest error standard can be found in Rosell v.

ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted) (emphasis added),

wherein the supreme court explained:

When findings are based on determinations regarding the
credibility of witnesses, the manifest error–clearly wrong standard
demands great deference to the trier of fact’s findings; for only the
factfinder can be aware of the variations in demeanor and tone of voice
that bear so heavily on the listener’s understanding and belief in what is
said. Where documents or objective evidence so contradict the
witness’s story, or the story itself is so internally inconsistent or
implausible on its face, that a reasonable fact finder would not credit the
witness’s story, the court of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a credibility
determination. But where such factors are not present, and a
factfinder’s finding is based on its decision to credit the testimony of one
of two or more witnesses, that finding can virtually never be manifestly
erroneous or clearly wrong.

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Process Equipment argues that the testimony of Mr. Johnson, who stated that

he did not witness an accident, discredits Mrs. Sowell’s account of the incident.

However, the WCJ, in detailed reasons, chose to accept the testimony of

Mrs. Sowell’s husband, who stated that he came upon the scene shortly thereafter and

saw Mr. Johnson kneeling beside his wife, and of Mr. Land, who stated that an

accident occurring while Ms. Sowell was working with Mr. Johnson was reported to

him. We can find no manifest error in the WCJ’s credibility determinations, given

that Mrs. Sowell’s account of the accident is corroborated by a current employee of

Process Equipment and by the medical records of Dr. Turnley.

Disability

In its second assignment of error, Process Equipment argues that the WCJ

committed legal or manifest error in finding that Mrs. Sowell was entitled to SEB,

when no treating physician restricted her from working and she continued to work for

three months after the accident.

When making a claim for SEB, the employee bears the initial burden of

proving that he is unable to earn wages equal to 90% of his pre-accident wages.

La.R.S. 23:1221(3)(a). If the employee meets this threshold showing, then the burden

shifts to the employer to show that the employee is physically capable of work and

that work was offered or available in the employer’s or the employee’s reasonable

geographic region. La.R.S. 23:1221(3)(c)(i).

The WCJ based its decision to award SEB on the medical evidence in the

record, in particular the MRI finding of a left paracentral disc bulge at L5-S1 that

contacts the left S1 nerve root, the findings of paraspinal muscle spasms, and the

recommendation for physical therapy (which course of treatment was unsuccessful,

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as it did not produce a significant change in pain). In addition to the medical

evidence, Mrs. Sowell testified that she is not able to work because she cannot sit or

stand very long without her back and legs giving her a lot of trouble.

In Thomas v. Casino Magic, 39,725, p. 5 (La.App. 2 Cir. 5/11/05), 902 So.2d

1283, 1287, writ denied, 05-1970 (La. 2/3/06), 922 So.2d 1183, the court reiterated

the following principle regarding proof of disability in a workers’ compensation case:

The finding of disability within the framework of the workers’
compensation law is a legal rather than a purely medical determination.
Therefore, the question of disability must be determined by reference to
the totality of the evidence, including both lay and medical testimony.
Ultimately the question of disability is a question of fact, which cannot
be reversed in the absence of manifest error.

In the present case, the WCJ found that Mrs. Sowell was entitled to SEB based

upon objective evidence of an injury, identified by the WCJ as “a disc abutting a

nerve,” that has yet to be resolved. The fact that her physicians did not discuss work

restrictions is not surprising, given that Mrs. Sowell was no longer working when she

saw them. Additionally, we note that most of Mrs. Sowell’s medical care was not

rendered within the workers’ compensation system, in that she mostly visited the

state’s charity hospitals and her employer did not send her to a physician of its

choosing. We decline to disturb the WCJ’s finding of disability on the record before

us.

Average Weekly Wage

In its third assignment of error, Process Equipment argues that the WCJ erred

in calculating Mrs. Sowell’s average weekly wage to be $733.00, thereby entitling her

to the maximum compensation rate of $490.00. Process Equipment argues that her

average weekly wage should either be $550.00, which amount is based upon a

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calculation submitted by Mrs. Sowell, or should be $610.00, which is based upon a

presumption of forty hours per week at a rate of $16.00 per hour.

Louisiana Revised Statutes 23:1021(12) (emphasis added) provides in part:

“Wages” means average weekly wage at the time of the accident.
The average weekly wage shall be determined as:

(a) Hourly wages.

(i) If the employee is paid on an hourly basis and the employee is
employed for forty hours or more, his hourly wage rate multiplied by the
average actual hours worked in the four full weeks preceding the date
of the accident or forty hours, whichever is greater; or

(ii) If the employee is paid on an hourly basis and the employee
was offered employment for forty hours or more but regularly, and at
his own discretion, works less than forty hours per week for whatever
reason, then, the average of his total earnings per week for the four full
weeks preceding the date of the accident; or

(iii) If the employee is paid on an hourly basis and the employee
is a part-time employee, his hourly wage rate multiplied by the average
actual hours worked in the four full weeks preceding the date of the
injury.

A “[p]art-time employee” is defined in La.R.S. 23:1021(11) as “an employee

who as a condition of his hiring knowingly accepts employment that (a) customarily

provides for less than forty hours per work week, and (b) that is classified by the

employer as a part-time position.” (Emphasis added.)

Mrs. Sowell worked for Process Equipment on a per-job basis, with those jobs

varying in length and occurring in different states. The only wage records for review

are those for the five weeks before the accident. Those records show that Mrs. Sowell

worked for three of those weeks, and during the weeks that she did work, she had

forty-five hours, twenty-two hours, and fifty-three hours, respectively. Additionally,

we note that in each week that she worked, she was paid for some hours at a higher,

overtime rate before she accumulated forty hours that week. (For example, for the

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week of August 15, 2004, she was paid for thirty-two hours at a regular rate of $16.00

and for thirteen hours at an overtime rate of $24.00.)

In the present case, there is no evidence that Mrs. Sowell was classified by

Process Equipment as a “part-time employee” or that she “regularly, and at [her] own

discretion,” worked less than forty hours a week. Accordingly, it would seem that she

is entitled to the presumption of forty hours in La.R.S. 23:1021(12)(a)(i).1

Nonetheless, we disagree with Process Equipment that Mrs. Sowell’s average weekly

wage should be calculated simply by multiplying forty hours by a base rate of $16.00,

when she was paid at the higher rate of $24.00 for some of those forty hours. In

Soileau v. R & H Refractory Services, Inc., 01-355, p. 3 (La.App. 3 Cir. 10/30/01),

796 So.2d 903, writ denied, 01-2954 (La. 1/25/02), 807 So.2d 841, this court

considered the case of an “as-needed” employee who worked only one full week, with

overtime pay, in the four weeks before the date of his accident. In affirming the

WCJ’s calculation that resulted in the maximum compensation rate, we stated:

Our review of the jurisprudence leads us to conclude that the most
equitable calculation to be utilized in the unique circumstances
presented herein is to average the wages from the full weeks worked out
of the last four. See Henry v. Bolivar Energy Corp., 95-1691 (La.App.
3 Cir. 6/5/96), 676 So.2d 681, writ denied, 96-1749 (La. 10/11/96), 680
So.2d 644. Soileau worked only one full week out of the four preceding
his injury. Therefore, we will use his wages from that week, including
overtime wages, and we hold that his average weekly wage is $670.00.
Accordingly, we affirm the finding that Soileau is entitled to the
maximum compensation rate of $367.00 per week.

Id. at 905-06 (emphasis added). The calculation made by the WCJ in this case is

similar to that in Soileau, in that the WCJ averaged Mrs. Sowell’s earnings for the

1
In Dabney v. Boh Brothers Construction Co., 97-1041 (La.App. 4 Cir. 3/11/98), 710 So.2d
1106, the court stated that it was not persuaded that a guarantee of forty hours every work week was
a requirement for the application of that statute. In Dabney, 710 So.2d at 1111, the court found that
a construction worker whose hours depended on the weather and job availability, but who “more
often than not” worked a forty-hour week, was entitled to the presumption of forty hours under
La.R.S. 23:1021(12)(a)(i).

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three weeks that she actually worked before this accident. Under the facts herein, we

find no error in the WCJ’s calculation of Mrs. Sowell’s average weekly wage.

Penalties and Attorney Fees

In its fourth assignment of error, Process Equipment argues that the WCJ erred

in finding it liable for penalties and attorney fees, considering that it investigated the

accident upon the filing of the disputed claim, that Mrs. Sowell did not report the

accident to her supervisor or the safety director, and that she never submitted any

medical records, bills, or mileage requests for reimbursement.

In assessing the employer with penalties and attorney fees, the WCJ relied on

the testimony of Mr. Land, who stated that Mrs. Sowell reported that she hurt her

back but did not want to see a doctor at that time and that Mrs. Sowell had later called

and stated that she had to have an MRI. Accordingly, the WCJ reasoned that by

November of 2004, around the time of the MRI, the employer should have had an

accident report filed and should have begun an investigation, which would have

included at least requesting the medical records of the MRI of which it was aware.

As to the propriety of reporting the accident to Mr. Land, as opposed to Mr. Bowden

or Mr. Williamson, we note that Mr. Land held a safety position with the company

and that Mr. Bowden and Mr. Williamson both testified that it was Mr. Land who

informed them of suit being filed in January.

The determination of whether an employer should be cast with
penalties and attorney fees is essentially a question of fact, and the trial
court’s finding must not be disturbed on appeal absent manifest error.
“To avoid penalties and attorneys fees for the nonpayment of benefits,
the employer or insurer is under a continuing duty to investigate, to
assemble, and to assess factual information before denying benefits.”

Rose v. Maison Deville Care Center, 05-1307, p. 5 (La.App. 3 Cir. 4/5/06), 927 So.2d

625, 628-29, writ denied, 06-1054 (La. 9/1/06), 936 So.2d 205 (citation omitted)

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(quoting George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200,

1209).

We find no error in the WCJ’s decision to award penalties and attorney fees in

this case. The WCJ obviously accepted the testimony of Mr. Land that Mrs. Sowell

timely reported the accident and that she requested that the employer provide at least

one medical procedure, an MRI, in connection with that accident. Although the

request for the MRI came in November of 2004, the company’s two other safety

officials both testified that they were not aware of an accident until January of 2005,

after suit was filed. On this record, we find no error in the WCJ’s credibility

determination that an accident warranting further investigation was timely reported.

Process Equipment also argues that the WCJ erred in awarding an excessive

amount of attorney fees in this case. However, when we consider that claimant’s

counsel participated in two depositions in addition to trying the case on the merits,

we decline to disturb that award. Mrs. Sowell has answered the appeal, seeking

additional attorney fees for appellate work, which we fix at $1,000.00.

Forfeiture of Benefits

In its final assignment of error, Process Equipment argues that the WCJ erred

in rejecting its claim that Mrs. Sowell forfeited all workers’ compensation benefits

based upon her denial of a previous back injury that was referenced in her medical

records.

In her deposition taken on July 14, 2005, Mrs. Sowell denied that she had ever

injured her back, neck, or spine before August of 2004. However, in October of

2001, she reported to Dr. Turnley that she had low back pain for about a year after

lifting material at work, but that she had received no medical treatment for this

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condition, had no X-rays taken, and was given pain relievers without an evaluation.

When confronted with Dr. Turnley’s medical records at trial, Mrs. Sowell testified

that she has had backaches in the past, but “I hadn’t had a back problem like this.”

She explained that when “[y]ou get out there pulling on everything. . . . yeah, you

gonna hurt,” but that if she had previously injured her back on the job, she could not

remember it.

The WCJ did not specifically address Process Equipment’s forfeiture claim in

his reasons, but he did comment on Mrs. Sowell’s testimony, stating that he found

any inconsistencies about prior back problems to be “insignificant” and “insufficient

to say that I should not weigh her testimony favorably.” The WCJ also noted that

Mrs. Sowell admitted to having back problems on and off due to the nature of her

work for this company and that the medical records reflect that she had no X-rays or

medical treatment other than pain medication for any prior back problems.

In Scallon v. Boise Cascade Corp., 05-327, p. 5 (La.App. 3 Cir. 11/2/05), 915

So.2d 1004, 1007-08, this court stated the following regarding a claim for forfeiture

of workers’ compensation benefits:

The Louisiana Supreme Court has interpreted La.R.S. 23:1208 as
providing for the forfeiture of workers’ compensation benefits when a
claimant (1) makes a false statement or representation; (2) that statement
or representation is willfully made; and (3) the false statement or
representation is made for the purpose of obtaining or defeating any
benefit or payment. Resweber v. Haroil Constr. Co., 94-2708
(La.9/5/95), 660 So.2d 7. A forfeiture pursuant to La.R.S. 23:1208 is
not necessary where the false statement is inconsequential or was made
inadvertently. Jeanise v. Cannon, 04-1049 (La.App. 3 Cir. 2/23/05),
895 So.2d 651. “Forfeiture of benefits under La.R.S. 23:1208 is a harsh
remedy which must be strictly construed.” Regan v. Eunice Superette,
Inc., 04-227, p. 5 (La.App. 3 Cir. 9/29/04), 884 So.2d 1209, 1213. A
workers’ compensation judge’s determination whether an employee has
forfeited his or her right to workers’ compensation benefits is a finding
of fact that will not be reversed on appeal in the absence of manifest

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error. Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99),
741 So.2d 829, writ denied, 99-1949 (La.10/8/99), 751 So.2d 227.

From the WCJ’s comments concerning Mrs. Sowell’s credibility, we can

conclude that the WCJ did not find any inconsistencies between her testimony and

her medical records to rise to the level of fraud. Mrs. Sowell explained that she had

backaches in the past due to the nature of her work, but that she did not have pain like

she does now. There is no evidence of any prior treatment, other than what she

reported to Dr. Turnley, or of any prior work-related claim being filed. We find no

error in the denial of the forfeiture claim.

Decree

For the above reasons, the judgment of the Office of Workers’ Compensation

is amended to award additional attorney fees in the amount of $1,000.00 for work

performed on appeal. In all other respects, the judgment is affirmed. Costs of this

appeal are assessed to Defendant-Appellant, Process Equipment.

AFFIRMED AS AMENDED.

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