Marcia Wyble v. Acadiana Preparatory School

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-0091

MARCIA WYBLE

VERSUS

ACADIANA PREPARATORY SCHOOL

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02
PARISH OF ST. LANDRY, NO. 04-08230
HONORABLE JASON OURSO
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Glenn B. Gremillion,
Judges.

AFFIRMED AND RENDERED.

Michael K. Leger
Attorney at Law
806 South Main Street
Opelousas, LA 70570
(337) 948-9066
COUNSEL FOR PLAINTIFF/APPELLEE:
Marcia Wyble

George S. Bourgeois, Jr.
Attorney at Law
421 North Main Street
Opelousas, LA 70570
(337) 948-9111
COUNSEL FOR DEFENDANT/APPELLANT:
Acadiana Preparatory School

PETERS, J.

In this workers’ compensation case, the Acadiana Preparatory School (School)

appeals an award of weekly benefits, medical expenses, penalties, and attorney fees

to its former employee, Marcia Wyble. Ms. Wyble answered the appeal, requesting

an increase in the penalty award and an award of attorney fees on appeal. For the

following reasons, we affirm the award of the workers’ compensation judge (WCJ)

in all respects and render judgment awarding Ms. Wyble an additional $5,000.00 as

attorney fees for work performed on appeal.

DISCUSSION OF THE RECORD

This litigation arises from incidents which occurred on October 21, 2004, and

October 22, 2004, at the School where Ms. Wyble was employed as a teacher’s aide.

On Thursday, October 21, Ms. Wyble lifted a heavy desk onto a rug and helped push

the desk across the room. This effort on her part resulted in stiffness in the lower

back that same evening and the next morning. On the next day, she sustained

immediate pain when she straightened up from bending over a low-to-the-ground,

child-sized table while working on an art project with her students. Soon thereafter,

she reported the pain in her back to Ann Rachel, a teacher with whom she was

working. On the following Monday, October 25, 2004, Ms. Wyble called Vincent

Bullara, an administrator at the School, and informed him of her injury, of her plans

to seek medical attention, and of the fact that she would miss a few days of work.

Ms. Wyble saw her family physician, Dr. Michael Montgomery, the same day

as her discussion with Mr. Bullara. Dr. Montgomery treated Ms. Wyble for her back

pain, suggested that she not return to work for the remainder of the week, and

scheduled a follow-up evaluation for the end of the week.

Before the follow-up evaluation took place, Ms. Wyble contacted Mr. Bullara

to request that the School pay for her medical expenses and was informed that the

School had concluded that it was not responsible for the injury and would not pay any

benefits to her or on her behalf. Because the School refused to pay her medical

expenses, Ms. Wyble sought medical care from the University Medical Center of

Lafayette, Louisiana; the Louisiana State University Health Sciences Center of

Shreveport, Louisiana; and the Louisiana State University Earl K. Long Health

Science Center of Baton Rouge, Louisiana—all three facilities being part of the state

charity hospital system.

Dr. L. Luquette of the Lafayette facility saw Ms. Wyble on October 27, 2004,

and continued to treat her through November 2, 2005. Throughout his treatment of

Ms. Wylbe’s complaints, Dr. Luquette was of the opinion that his patient could not

return to work at the School. Her back pain grew progressively worse, and by

January of 2005 she was reporting pain down into her buttocks and posterior thighs.

An April 12, 2005, lumbar MRI revealed a right-sided disc herniation at L4-5, right

paracentral disc protrusion/herniation, and facet joint hyperthropy in the lower lumbar

region.

Ms. Wyble last received treatment from the Lafayette facility on November 2,

2005, and on January 3, 2006, she saw Dr. Raul Cardenas, a neurosurgeon at the

Shreveport facility. After examining Ms. Wyble, Dr. Cardenas released her to light

duty. But when she approached the School seeking a light-duty position, she received

no response. Ms. Wyble remained under Dr. Cardenas’s care and underwent physical

therapy at his recommendation, but at the Baton Rouge facility.

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The School’s continual refusal to pay benefits and medical expenses resulted

in this litigation. Following a June 19, 2006, hearing on the merits, the WCJ rendered

judgment awarding Ms. Wyble temporary total disability benefits from October 22,

2004, until January 3, 2006, and supplemental employment benefits thereafter;

ordering the School to pay all accident-related medical expenses; awarding $4,000.00

in statutory penalties; awarding $6,500.00 in attorney fees; and ordering that the

weekly benefits award be increased by fifty percent pursuant to La.R.S. 23:1171.2.

The School timely perfected this appeal, and Ms. Wyble answered the appeal seeking

additional relief.

OPINION

In its appeal, the School asserts that the WCJ erred: (1) In finding that a

compensable accident occurred; (2) in awarding penalties and attorney fees; and (3)

in awarding increased benefits under La.R.S. 23:1171.2. In her answer to the appeal,

Ms. Wyble seeks an increase in the WCJ’s penalty award and an award of attorney

fees for work done on appeal.

Accident

The School first asserts that the WCJ erred in even concluding that an accident

occurred at all. In considering this argument, we recognize that the employee has the

burden of establishing a work-related accident. Bruno v. Harbert Int’l Inc., 593 So.2d

357 (La.1992). Louisiana Revised Statute 23:1021(1) defines an accident as follows:

“Accident” means an unexpected or unforeseen actual,
identifiable, precipitous event happening suddenly or violently, with or
without human fault, and directly producing at the time objective
findings of an injury which is more than simply a gradual deterioration
or progressive degeneration.

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The School contends that the WCJ erred in finding that an “accident” occurred where

Ms. Wyble’s complaints arise from nothing more than “benign, everyday activity”

and her back pain is “simply a gradual deterioration or progressive degeneration.”

In rejecting this argument, we first note that

Although the definition of accident was amended to emphasize
that the identifiable, precipitous event must be more than a gradual
deterioration or progressive degeneration, jurisprudence holds that these
terms do not exclude those instances where a worker can establish a
work-related event, which may seem to be a customary or routine work
activity, which results in an injury to the employee.

Richard v. Workover & Completion, 00-794, p. 4 (La.App. 3 Cir. 12/6/00), 774 So.2d

361, 364. Further, “[t]he ‘actual, identifiable, precipitous event’ may include a

routine movement or task that the employee regularly performs, if the claimant is able

to identify with some particularity as to time, place and manner, the objective

manifestation of the accidental injury.” Thompson v. Orleans Parish Sch. Bd., 00-

1230, p. 3 (La.App. 4 Cir. 3/21/01), 786 So.2d 128, 130.

Ms. Wyble testified that the injury to her back began when she lifted the heavy

desk onto a rug and moved it across the room, and that the pain began the next day

as she was standing up after bending over a very low table, working on an art project.

Dr. Montgomery testified that bending over and then standing back up “was the event

that precipitated this episode of back pain” and that the motion had “aggravated her

preexisting condition and had produced the pain that she was experiencing at that

time.”

The WCJ’s determinations as to whether the employee’s testimony is credible

and whether she has discharged her burden of proof are factual determinations which

we may not disturb on review unless they are clearly wrong. Bruno, 593 So.2d 357.

Based on the testimony of Ms. Wyble and Dr. Montgomery, we find no error in the

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WCJ’s determination that Ms. Wyble proved the occurrence of a sudden, actual,

identifiable, precipitous event within the meaning of the statute. The objective

manifestation of the accidental injury having been identified with particularity as to

time, place, and manner, through the testimony of both Ms. Wyble and Dr.

Montgomery, it is immaterial that the actions that gave rise to the injury were

“benign, everyday activities.” Thus, we find no merit in this assignment of error and

affirm the WCJ’s finding that an accident occurred within the meaning of La.R.S.

23:1021(1).

Cause of the Injury

The School next contends that the WCJ erred in holding that Ms. Wyble

established a compensable disability where she alleged two separate incidents on two

different dates as being the accident. In rejecting this argument, we note that the WCJ

specifically found that each of the incidents, on October 21, 2004, and October 22,

2004, constituted an accident under the workers’ compensation law. Thus, the WCJ’s

finding was not that the two incidents combined to produce one accident, but that

there were two separate accidents on two different days that combined to cause Ms.

Wyble’s work-related injury. The School’s argument on this point has no merit.

The School also argues that Ms. Wyble’s back pain was a continuation of the

ongoing degenerative process that had begun in 2000 and 2001. It points to the fact

that Ms. Wyble had been treated for back pain on February 11, 2000, February 8,

2001, and June 23, 2001. Dr. Montgomery acknowledged his prior treatment of Ms.

Wyble’s back complaints, but testified that this back pain in 2000 and 2001 was

caused by degeneration and arthritic changes in the spine with the possibility of some

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spondylosis in the lower lumbar area, and that the previous difficulties had been

resolved prior to the accidents at issue.

Even assuming aggravation of a preexisting medical condition, Ms. Wyble may

maintain a claim for temporary total disability benefits if she proves that she sustained

an aggravation of that preexisting condition in the October 2004 work-related

accidents. A preexisting medical condition will not bar an employee from recovery

if the employee establishes that the work-related accident aggravated, accelerated, or

combined with the condition to cause the disability for which compensation is

claimed. Peveto v. WHC Contractors, 93-1402 (La. 1/14/04), 630 So.2d 689. “When

there is proof of an accident and of a following disability, without an intervening

cause, it is presumed that the accident caused the disability.” Coley v. Wilson Oil Co.,

Inc., 620 So.2d 445, 450 (La.App. 3 Cir. 1993). As noted above, Dr. Montgomery

testified in his deposition that the motion of bending over and standing up had

“aggravated her preexisting condition.” He also agreed that the work-related injury

“aggravated, accelerated or combined with the preexisting disease that she had in her

lower back to produce the disability.”

The WCJ was not clearly wrong in its factual finding that Ms. Wyble

discharged her burden of proving that the October 2004 work-related accidents

aggravated her preexisting injury. Thus, this assignment of error is without merit.

Penalties and Attorney Fees

An employer who denies benefits without investigating an employee’s

compensation claim subjects itself to statutory penalties and attorney’s fees. Nelson

v. Roadway Exp., Inc., 588 So.2d 350 (La.1991). “Whether the refusal to pay benefits

warrants the imposition of penalties and attorney’s fees is a factual question which

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will not be disturbed in the absence of manifest error.” Dozier v. Garan's, Inc.,

94-1363, p. 4 (La.App. 3 Cir. 4/5/95), 653 So.2d 137, 139. Here, the WCJ found

“that defendant was properly notified of this accident and without much investigation

at all the defendant promptly made the decision to deny the claim. The Court finds

that decision to be arbitrary and capricious and without probable cause.”

This finding is supported by the record. Mr. Bullara testified that he “really

didn’t investigate too much.” In his investigation, he spoke with Ms. Rachal, Nell

Fontenot (a secretary at the School with whom Ms. Wyble had discussed her injury),

and Connie Bullara (an employee of the school whom Ms. Wyble had seen at the end

of the day on October 22, 2004). These individuals all acknowledged that Ms. Wyble

had related to them the same statement of facts concerning the accident, i.e., that after

standing up from bending over the low table, she had felt something pull in her back.

Despite having this information, no one with the School took any further action in

determining the validity of Ms. Wyble’s claim for workers’ compensation benefits

and medical expenses.

In Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d

885, 890, the supreme court stated:

[T]o determine whether the claimant’s right has been reasonably
controverted, thereby precluding the imposition of penalties and
attorney fees under La. R.S. 23:1201, a court must ascertain whether the
employer or his insurer engaged in a nonfrivolous legal dispute or
possessed factual and/or medical information to reasonably counter the
factual and medical information presented by the claimant throughout
the time he refused to pay all or part of the benefits allegedly owed.

In the instant case, although there was evidence that Ms. Wyble had previously

experienced back problems, there was no other factual or medical information to

reasonably counter the information presented by Ms. Wyble when she requested that

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the School pay her medical expenses and indemnity benefits. On November 4, 2004,

Ms. Wyble’s attorney contacted the School, requesting payment of weekly indemnity

benefits and reimbursement of Ms. Wyble’s medical expenses. In making the request,

the attorney included copies of Dr. Montgomery’s October 25, 2005 medical report,

as well as medical records dated October 27, 2004, and November 2, 2004, from the

University Medical Center. The failure to pay workers’ compensation benefits is not

excused by an unjustified belief that an employee’s injury does not result from an

accident. Nelson, 588 So.2d 350.

The WCJ did not manifestly err in finding that the School’s refusal to pay

benefits warrants the imposition of penalties and attorney’s fees. Thus, we find no

merit in the School’s assignment of error.

Increased Benefits

Louisiana Revised Statute 23:1171.2 provides that the amount of weekly

compensation “shall be increased by fifty percent in any case where the employer has

failed to provide security for compensation as required by R.S. 23:1168.” (Emphasis

added). The WCJ awarded benefits at the increased rate because the School did not

have workers’ compensation insurance and was not self-insured at the time of Ms.

Wyble’s injury.

The School argues that the WCJ erred in ordering increased benefits because

Ms. Wyble did not include the issue of increased benefits in her pre-trial statements.1

We find that the School waived its right to assert this argument. At the hearing, the

1
The hearing rules on pretrial procedure in workers’ compensation proceedings are found in
La.Adm.Code Title 40, Part I, Chapter 60, and the rules on trial procedure are found in La.Adm.Code
Title 40, Part I, Chapter 62. Although the School refers us to La.Adm.Code 40:I.2158, it apparently
relies on La.Adm.Code 40:I.6201, which provides that “[o]nly those issues listed in the pretrial
statements shall be litigated at trial. No new issues shall be raised except by written order of the
judge for good cause or upon mutual agreement of the parties.”

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School timely objected to questions propounded to Mr. Bullara concerning the status

of the School’s workers’ compensation coverage at the time of the accident.

However, the objection was as to relevancy, not whether the questioning expanded

the pretrial statements.2 In response to the objection, counsel for Ms. Wyble stated

that the questioning was directed at “whether [the School] had workers’ comp

insurance through a self insurance firm or if they had purchased workers’ comp

insurance for the enhance [sic] benefit under the law.” The School then stipulated

that there was no insurance in place on the date of the accident. The School’s failure

to timely object to the line of questioning on the ground that the issue of increased

benefits was not listed in the pretrial statement, coupled with the School’s stipulation

that there was no insurance in place on the date of the accident, waived any possible

objection to Ms. Wyble’s failure to include the issue in her pretrial statement.

This argument has no merit.

Answer to Appeal

The WCJ awarded penalties of $2,000.00 for the School’s failure to pay

medical expenses and $2,000.00 for its failure to pay indemnity benefits. Ms. Wyble

asks that we increase the total penalties awarded, from $4,000.00 to $8,000.00, by

assessing separate penalties for the School’s failure to authorize any medical

treatment, its failure to authorize an MRI diagnostic study, and its failure to allow Ms.

Wyble her choice of physicians.

The provisions of La.R.S. 23:1201(F) provide for multiple penalties for

multiple violations of compensation and medical benefits claims. Fontenot v. Reddell

2
Counsel for the School stated in support of its objection that “I don’t see where [whether the
School had workers’ compensation insurance is] particularly relevant to what’s alleged in the
pleadings, that she had an accident in the course and scope of the employment.”

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Vidrine Water Dist., 02-439 (La. 01/14/03), 836 So.2d 14. But here the WCJ

concluded that the School’s failure to pay medical benefits was an ongoing violation,

which resulted in only one penalty award under the circumstances of the case.

Finding no manifest error in this factual determination by the WCJ, we affirm the

penalty award and decline to increase it on appeal. See Sigler v. Rand, 04-1138

(La.App. 3 Cir. 12/29/04), 896 So.2d 189, writ denied, 05-278 (La. 4/1/05), 897

So.2d 611.

Ms. Wyble also requests additional attorney fees for work performed on appeal.

This court has held that held that an appellee who successfully defends a trial court

judgment should not be denied additional attorney fees on appeal, even when the

relief sought in his answer is denied. Stacks v. Mayflower Transit, Inc., 95-693

(La.App. 3 Cir. 11/2/95), 664 So.2d 566. Here, Ms. Wyble successfully defended the

judgment of the WCJ in her favor. We therefore award her $5,000.00 in additional

attorney fees.

DISPOSITION

For the foregoing reasons, we affirm the judgment in all respects. We assess

the costs of this appeal to the defendant, Acadiana Preparatory School and award the

plaintiff, Marcia Wyble, $5,000.00 in additional attorney fees.

AFFIRMED AND RENDERED.

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