Thomas Cannon, Jr. v. Hamilton Transportation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1302

THOMAS CANNON, JR.

VERSUS

HAMILTON TRANSPORTATION

**********

APPEAL FROM THE
OFFICE OF WORKER’S COMPENSATION, DISTRICT 02,
PARISH OF RAPIDES, NO. 02-08471
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Marc T. Amy, J. David Painter, and James T. Genovese, Judges.

AFFIRMED.

Edward A. Kaplan
P.O. Box 12386
Alexandria, LA 71315
Counsel for Plaintiff-Appellee:
Thomas Cannon, Jr.

Robert A. Dunkelman
S. Michael Cooper
P.O. Box 1786
Shreveport, LA 71166
Counsel for Defendants-Appellants
Hamilton Transportation, L.L.C. and Employers Self Insurers Fund

PAINTER, Judge.

Defendants, Hamilton Transportation, L.L.C. (Hamilton) and Employers Self

Insurers Fund, appeal a judgment finding that they wrongfullyterminated Plaintiff,

Thomas Cannon’s, Workers’ Compensation benefits; and denied surgery; reinstating

the benefits and awarding penalties and attorney’s fees.

FACTS

As the Workers’ Compensation Judge (WCJ) stated in his reasons for

judgment, it is undisputed that on October 4, 2002, while employed by Hamilton,

Cannon had an accident in the course and scope of his employment. At that time, he

was bent over changing a truck tire when he felt a pop in his lower back. He filed a

disputed claim for compensation in November 2002, and Hamilton or its insurer paid

workers’ compensation benefits. A micro-discectomy was performed on Cannon’s

back in June 2003. In January 2004, Dr. Louis Blanda, Cannon’s treating physician,

released him to light duty employment. However, Cannon’s symptoms allegedly

continued, and in June 2004, Dr. Blanda suggested that he have additional surgery.

In June 2004, Buster Fontenot, a vocational rehabilitation specialist hired by

Hamilton, advised Cannon of some light duty jobs. In July 2004, based on those jobs

and light duty restrictions set out in Dr. Blanda’s report, Hamilton and its insurer

terminated Cannon’s compensation benefits. The jobs were not tendered to Dr.

Blanda for his approval for some time, and he approved them in December 2004.

Hamilton amended his disputed claim for compensation benefits alleging that the

benefits were arbitrarily terminated and asking for penalties and attorney’s fees.

Hamilton obtained a second medical opinion regarding the proposed additional

surgery in October 2004 and refused to pay for the surgery recommended by

1

Cannon’s treating physician. In February 2005, Hamilton hired a private investigator

to conduct video surveillance of Cannon and, based on those videos, filed an

amended answer to Cannon’s disputed claim for compensation alleging that Cannon

willfully made false statements for the purpose of obtaining workers’ compensation

benefits.

The matter was tried on May 16, 2006. The court rendered judgment and gave

oral reasons for judgment on August 14, 2006, finding that Hamilton wrongfully

terminated Cannon’s benefits and denied surgery, reinstating Plaintiff’s benefits and

awarding penalties and attorney’s fees. Hamilton and its insurer appeal. Cannon

answers the appeal asking for additional attorney’s fees for work done on appeal.

DISCUSSION

The manifest error or clearly wrong standard governs appellate
review in workers’ compensation cases. Smith v. Louisiana Department
of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129. Under the
manifest error standard, the appellate court must determine whether the
WCJ’s factual findings are reasonable in light of the record reviewed in
its entirety. Pugh v. Casino Magic, 37,166 (La.App. 2d Cir.4/11/03),
843 So.2d 1202, rehearing denied. However, where there is manifest
error or an error of law, the WCJ’s decision is owed no deference by the
reviewing court and may be overturned. Roan v. Apache Chemical
Transporters, 37,671 (La.App. 2d Cir.9/24/03), 855 So.2d 920.

This court has stated that “the workers’ compensation act is
remedial in nature and that in order to effectuate the humane policies it
reflects, the law is to be liberally construed in favor of the injured
employee.” Roan, 855 So.2d at 923. However, statutory provisions
allowing penalties and attorney fees are penal in nature and must be
strictly construed. Tron v. Little Italiano, Inc., 38,556, 38,557, 38,558
(La.App. 2d Cir.6/25/04), 877 So.2d 1055.

Collins v. Patterson Drilling, 39,668, pp. 5-6 (La.App. 2 Cir. 5/11/05), 902 So.2d

1264, 1267-68.

2

Fraud Defense

Hamilton asserts that the WCJ erred in failing to uphold its fraud defense under

La.R.S. 23:1208. It is Hamilton’s contention that Cannon lied about his ability to

work and was actually working as an auto mechanic. Hamilton supports its

contention with a video surveillance tape which shows Cannon apparently working

on several vehicles.

In order to prevail on its fraud defense, Hamilton must prove: (1) that Cannon

made a false statement or representation; (2) that he made the false statement or

representation willfully; and (3) that he made it for the purpose of obtaining any

workers’ compensation benefits or payment. Standard Companies, Inc. v. Trahan,

05-593 (La.App. 3 Cir. 12/30/05), 918 So.2d 1167, writ denied, 06-278 (La. 4/28/06),

927 So.2d 285.

The WCJ found that the video was not sufficient to show that Cannon was

working on vehicles not owned by himself. We note that nothing in the video

demonstrates that Cannon was being paid for the small amount of car repair work

shown. Further, the WCJ found that nothing shown indicated that Cannon was doing

anything incompatible with the restrictions placed on him by his physicians and that

the video fell short of showing that Cannon is capable of doing sustained work on a

daily basis. While the WCJ acknowledged certain inconsistencies in Cannon’s trial

and deposition testimony and the matters shown on the video tape, he found that these

contradictions did not rise to such a level as to warrant forfeiture of benefits.

Our review of the record convinces us that Hamilton has not carried its burden

of proof in this regard. The video shows Cannon working on two cars for less than

one-half hour each over a three day period. Nothing in the video or testimony

3

establishes that Cannon was paid for any automotive repair work after his accident.

Nothing in the video or testimony establishes that Cannon did work incompatible

with the restrictions placed on him by his physicians. Nothing in the video or

testimony establishes that Cannon was capable of performing as a full-time auto

mechanic. Because there is no proof that Cannon was working on automobiles for

payment, or that he was able to work as a mechanic, there has been no showing that

Cannon made a false statement regarding his employment or his employability.

Accordingly, we find no error in the WCJ’s decision to reject Hamilton’s fraud

defense.

Benefits

Hamilton next asserts that it was justified in terminating Cannon’s benefits

because Cannon’s treating physician released him to light duty work, and Cannon has

not shown that he is not capable of earning 90% of his average weekly wage so as to

be entitled to Supplemental Earnings Benefits (SEBs) Under La.R.. 23:1221.

The WCJ found that the surgery recommended for Cannon and the treatment

necessitated by that surgery entitled him to temporary total disability benefits (TTDs).

This conclusion is supported by the evidence of Dr. Blanda, Cannon’s treating

physician who recommended the surgery, and that of Dr. Gregory Gidman, who

opined that if Cannon was going to have additional surgery, he had not reached

maximum medical improvement and would not do so until nine to twelve months

post-surgery.

The WCJ had a reasonable basis for finding that Cannon is entitled to TTDs.

Thus, finding no manifest error, we affirm his award of TTDs.

4

Penalties and Attorney’s Fees

Finally, Hamilton argues that the WCJ erred in awarding penalties and

attorney’s fees because its decision to terminate benefits and deny payment of surgery

were reasonable in light of the surveillance video, Cannon’s refusal to pursue the

proffered jobs, and the medical opinions of Drs. Gaar and Gidman.

The evidence of record suggests that benefits were terminated, and Hamilton

later tried to find an excuse for its actions. First, the benefits were terminated months

before the surveillance video was made. Addtionally, while Hamilton asserts that it

was justified in terminating benefits because of Cannon’s failure to pursue the jobs

located by the vocational rehabilitation specialist, it failed to have those jobs

reviewed by Cannon’s treating physician for a determination as to whether he was

physically able to perform them until several months after benefits were terminated.

See Harris v. Christus St. Patrick Hosp., 02-1502 (La.App. 3 Cir. 10/22/03), 857

So.2d 1278, writ denied, 03-3193 (La. 2/13/04), 867 So.2d 697 (claimant not

unreasonable in failing to pursue jobs not approved by her physician).

Hamilton next asserts that the WCJ erred in finding that it unreasonably failed

to authorize additional surgery because the testimony of Dr. Frazier Gaar and the

surveillance video support the conclusion that Cannon does not need additional

surgery.

Dr. Gaar saw Cannon only once in June 2005. Dr. Gidman, although he saw

Cannon on more than one occasion, stated only that he felt additional testing should

be done before considering surgery. Dr. Blanda treated Cannon over a period of

years. In June 2004, Dr. Blanda recommended anterior lumbar interbody fusion

5

surgery for Cannon’s continued complaints of pain, and opined that the surgery

would give him fairly good relief of his symptoms.

It is the function of the WCJ to assess the weight to be accorded both the
lay and the medical testimony, and the court may accept or reject the
opinion of a medical expert depending upon what impression the
qualifications, credibility, and testimony of that expert make on the
court. Davison v. Horseshoe Casino, Inc., 31,166, pp. 4-5 (La.App. 2
Cir. 10/28/98), 720 So.2d 785, 787, writ denied, 98-2950 (La.1/29/99),
736 So.2d 833. .

Ivy v. V’s Holding Co., 02-1927, p. 7 (La.App. 1 Cir. 7/2/03), 859 So.2d 22, 28.

Further, as stated by the WCJ, Hamilton waited several months before seeking

a second opinion as to the need for additional surgery. This failure to take timely

action is sufficient to support the trial court’s determination that the failure to

authorize benefits was arbitrary and capricious. See Foster v. Liberty Rice Mill,

96-438 (La.App. 3 Cir. 12/11/96), 690 So.2d 792.

Given the evidence of record and the time frame within which actions were

taken, we find no error in the WCJ’s decision to award penalties of $2000.00 for

arbitrary and capricious termination of benefits and $2000.00 for failure to authorize

surgery.

Answer to Appeal

In his answer to this appeal, Cannon asks for additional attorney's fees for work

performed on appeal. Given the fact that the appellant was unsuccessful in this

appeal and that it necessitated additional work, we find that an additional award of

fees is appropriate. See Mauldin v. Town of Church Point, 05-1294 (La.App. 3 Cir.

4/5/06), 925 So.2d 1269.Having considered these proceedings, along with the

Prewitt's brief filed with this court, we award an additional $1,500.00 in attorney's

fees on appeal.

6

CONCLUSION

For these reasons, the judgment rendered by the WCJ is affirmed. An

additional attorney’s fee on appeal in the amount of $1,500.00 is awarded to the

Appellee, Thomas Cannon, Jr. Costs of this appeal are assessed to Hamilton and

Employers Self Insurers Fund.

AFFIRMED.

7