Michael C. Parrish v. Van Tel Communications

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-454

MICHAEL C. PARRISH

VERSUS

VAN-TEL COMMUNICATIONS

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 04-06570
HONORABLE SAM LOWERY, ADMINISTRATIVE HEARING OFFICER

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J. DAVID PAINTER
JUDGE

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Court composed of Jimmie C. Peters, Glenn B. Gremillion and J. David Painter,
Judges

AFFIRMED.
Thomas B. Delsa
Attorney at Law
5100 Village Walk, Ste. 300
Covington, LA 70433
Counsel for Defendant-Appellant:
Van-Tel Communications

James Patrick MacManus
Attorney at Law
P.O. Box 4708
Lafayette, LA 70502
Counsel for Plaintiff-Appellee:
Michael C. Parrish

PAINTER, Judge

The employer, Van-Tel Communications (Van-Tel), appeals the ruling of the

workers’ compensation judge (WCJ) finding that an on-the-job accident occurred

while the employee, Michael Parrish, was in the course and scope of his employment,

concluded that he is owed indemnity benefits, holding that Van-Tel was arbitrary and

capricious in refusing to pay medical and weekly indemnity, and awarding penalties

and attorney’s fees. Finding no manifest error in this ruling, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 2, 2004, Parrish was working as a cable installer for Van-Tel. He lost

control of an twenty-eight foot extension ladder while trying to move it and fell,

injuring his shoulder and incurring a hernia. The employer did not pay benefits or

medical expenses. Parrish filed a disputed claim for compensation in 2004. He

returned to work in April 2006. A hearing was held in August 2006, which resulted

in a ruling in Parrish’s favor. Van-Tel appeals.

DISCUSSION

Fraud

Van-Tel first asserts that the trial court erred in failing to find that Parrish made

false statements for the purpose of obtaining workers’ compensation benefits so as

to forfeit his right to benefits under the provisions of La.R.S. 23:1208(E).

Van-Tel asserts that Parrish withheld and/or misrepresented information about

previous accidents and injuries in order to receive workers’ compensation benefits.

This court in Doyal v. Vernon Parish Sch. Bd., 06-1088, pp. 6-7 (La.App. 3 Cir.

2/7/07), 950 So.2d 902, 907-08, discussed the application of La.R.S. 23:1208:

Louisiana Revised Statutes 23:1208, entitled “Misrepresentations
concerning benefit payments; penalty,” provides, in part:

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A. It shall be unlawful for any person, for the purpose of
obtaining or defeating any benefit or payment under the
provisions of this Chapter, either for himself or for any other
person, to willfully make a false statement or representation.

....

E. Any employee violating this Section shall, upon
determination by workers’ compensation judge, forfeit any right
to compensation benefits under this Chapter.

The above provision requires only “that (1) there is a false
statement or representation, (2) it is willfully made, and (3) it is made for
the purpose of obtaining or defeating any benefit or payment” before the
forfeiture required by La.R.S. 23:1208 is applied. Resweber v. Haroil
Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. A workers’
compensation judge’s determination as to the existence of the above
factors will not be reversed on appeal absent manifest error. Murphy v.
Brookshire Grocery Co., 02-808 (La.App. 3 Cir. 12/11/02), 832 So.2d
1157.

The trial court, in oral reasons for judgment, stated with regard to possible

misrepresentations by Parrish, that:

The defense contends that Mr. Parrish outright lied about his pre-
employment accidents, accusing him of “cleverly and craft[ily]” denying
ever having suffered right shoulder pain prior to the ladder falling
incident. I listened to Mr. Parrish carefully for the better part of the day,
and the terms “clever and crafty” never came to my mind as approaching
apt descriptors of the claimant. He is not particularly articulate, and his
train of thought does seem at times trackless; but there is just no
evidence that he set about to deliberately withhold information from his
employer.

....

While it’s true that Mr. Parrish was involved in a car wreck
previously, and his shoulder was injured to some degree; he explained
that it was such a minor injury that he never sought treatment for it. And
I cannot find in the medical records submitted any evidence by the
defendant that this, in fact, was not true.

. . . . I find no statements from Dr. DeAraujo, Dr. Morrow, or
anyone else, except the claimant, to support this employer’s fraud claim.

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After reviewing the record herein, we find that it supports the trial court’s

factual determination. Accordingly, we find no error in the trial court’s determination

as to fraud.

Benefits

Van-Tel next argues that Parrish failed to adduce sufficient evidence to show

a causal connection between his shoulder injury and hernia and the on-the-job

accident.

“An employee in a worker’s compensation action has the burden
of establishing a causal link between the work-related accident and the
subsequent disabling condition.” Miller v. Roger Miller Sand, Inc.,
94-1151, p. 6 (La.11/30/94), 646 So.2d 330, 334. An employee’s
disability is presumed to have resulted from the accident if before the
accident, the injured employee was in good health, but commencing
with the accident, symptoms of the disabling condition appeared and
continuously manifested themselves afterwards. Walton v. Normandy
Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). However, the
presumption requires either that there is sufficient medical evidence to
show there to be a reasonable possibility of causal connection between
the accident and disabling condition, or that the nature of the accident,
when combined with the other facts of the case, raises a natural
inference through human experience of such a causal connection. Id.

Marks v. 84 Lumber Co., 06-358, pp. 3-4 (La.App. 3 Cir. 9/27/06), 939 So.2d 723,

727.

The trial court, in its oral reasons for judgment, found that Parrish carried his

burden of proof, as follows:

Taking the extensive live testimony and the medical information
into account, the Court finds that Michael Parrish has met his burden of
proof showing a causal relationship between the June 2, 2004 incident
and the hernia. The medical evidence on its face does not lend as much
support to a connection between the shoulder injury and the incident, but
the claimant’s testimony is very persuasive, depicting a short man
wrestling with a unwieldy, very tall ladder.

Unless these findings are clearly wrong or manifestly erroneous, this court

may not overturn them. Id. Even where “there is a conflict in the testimony,

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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.” Rosell v. ESCO, 549 So.2d 840, 844

(La.1989).

The record contains extensive medical records for Parrish that pre-date the

accident. Nothing in those records suggests Parrish had hernia symptoms prior to the

accident. Although there is evidence of a possible prior shoulder injury, the evidence

pointed to by Van-Tel shows that more than a year passed between the last mention

of shoulder complaints in the medical records and the accident made the basis of this

claim. Given Parrish’s testimony that his hernia and shoulder symptoms began after

the accident, the lack of evidence of prior complaints of hernia symptoms and the lack

of shoulder symptoms during the year prior to the accident, we find the trial court’s

credibility evaluations and inferences of fact are reasonable in light of the evidence

of record. Therefore, they will not be overturned.

Penalties and Attorney’s Fees

Van-Tel appeals the WCJ’s award of a two thousand dollar penalty for failure

to play Parrish’s medical bills, a two thousand dollar penalty for failure to pay

indemnity, and attorney’s fees of seven thousand five hundred dollars. Van-Tel first

argues that the WCJ erred in making any award of penalties or attorney’s fees because

Hearing Rule 6201 provides that only matters listed in the pre-trial order may be

litigated and the issue of penalties and attorney’s fees was not listed. This court

previously considered this issue in Douglas v. Grey Wolf Drilling Co., 03-515, pp.

6-7 (La.App. 3 Cir. 11/5/03), 858 So.2d 830, 834-35:

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Hearing Rule 6201 provides that only those issues listed in the pre-trial
statements shall be litigated at trial, except by written order of the WCJ
for good cause or by agreement of the parties.

Louisiana Revised Statutes 23:1317(A) (emphasis added)
provides, in part:

The workers’ compensation judge shall not be bound by technical
rules of evidence or procedure other than as herein provided, but
all findings of fact must be based upon competent evidence.... The
workers’ compensation judge shall decide the merits of the
controversy as equitably, summarily, and simply as may be.

In Meche v. Foremost Management Corp., 93-1390, p. 5 (La.App.
3 Cir. 5/4/94), 640 So.2d 585, 587, writ denied, 96-152 (La.3/15/96),
669 So.2d 429 quoting Keyes v. Rockwood Ins. Co., 502 So.2d 223, 228
(La.App. 3 Cir.1987)), we stated that La.R.S. 23:1317 “reflects the
legislature’s intent, in compensation cases, to materially relax
evidentiary and procedural rules and subordinate procedural
considerations to the discovery of the truth and the protection of
substantive rights.” Additionally, as explained in Vernon v. Wade
Correctional Institute, 26,053, p. 5 (La.App. 2 Cir. 8/19/94), 642 So.2d
684, 688 (emphasis added), “[t]he theory inherent in pretrial procedure
is the avoidance of surprise and the allowance of the orderly disposition
of the case.”

In Starkman v. Munholland United Methodist Church, 97-661
(La.App. 5 Cir. 1/14/98), 707 So.2d 1277, writ denied, 98-400
(La.3/27/98), 716 So.2d 891, the court found that the claimant’s failure
to file a pre-trial statement supported the WCJ’s exclusion of the
testimony of a witness, a close friend of the claimant’s. However, the
claimant did present other evidence in support of her claim, including
her testimony, medical records, and physicians’ depositions, even
though she did not file a pre-trial statement.

Because Parrish presented evidence in support of the conclusion that Van-Tel

did not reasonably deny or controvert his claim, we find no abuse of discretion in the

trial court’s decision to rule on the issue of penalties and attorney’s fees.

Van-Tel next asserts that the WCJ erred in making an award of penalties and

attorney’s fees because it reasonably controverted the claim. “Penalties and attorney

fees shall be awarded if the employer or the insurer fails to timely pay benefits due

claimant, unless the claim is reasonably controverted or such nonpayment results

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from conditions over which the employer or insurer had no control.” Russell v.

Snelling Pers., 02-1347, p. 6 (La.App. 1 Cir. 5/9/03), 849 So.2d 588, 591. The WCJ

explained his feelings about the actions of the Defendant as follows:

The response of the employer to this entire matter is interesting
and in some ways inexplicable. After the company took a statement
from Mr. Parrish’s co-worker, there seemed to be [a] decided leap in
favor of the assumption that Mr. Parrish was exaggerating. This
assumption was further supported in the defendant’s mind by comments
from Mr. Parrish’s landlord, an individual who clearly had an axe to
grind with the claimant involving matters totally unrelated to the on-the-
job incident. . . .

It is very difficult to dismiss the claimant’s contention that what
passed for an investigation into his accident was little more than the
gathering of information to prepare a defense against a workers’
compensation claim. The latter is certainly a legitimate endeavor, but
not when it completely overshadows the employer’s obligation to
determine precisely what happened when one of its employees reports
an injury.

....

The claim was decidedly not controverted.

“Since the determination of whether an employer was arbitrary and capricious

is essentially a question of fact, it is subject to the manifest error or clearly wrong

standard of review.” Doyal, 950 So.2d at 909.

Van-Tel further asserts that an award of penalties and attorney’s fees was not

appropriate because, although they were the only defendant named, only the insurer,

because it denied the claim without reference to the employer, was at fault as required

by La.R.S. 23:1201(F).

Louisiana Revised Statutes 23:1201(F)(1) provides as follows:

Failure to provide payment in accordance with this Section or failure to
consent to the employee’s request to select a treating physician or
change physicians when such consent is required by R.S. 23:1121 shall
result in the assessment of a penalty . . . .

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(1) Such penalty and attorney fees shall be assessed against either
the employer or the insurer, depending upon fault. No workers’
compensation insurance policy shall provide that these sums shall be
paid by the insurer if the workers’ compensation judge determines that
the penalty and attorney fees are to be paid by the employer rather than
the insurer.

In this case, the evidence shows that actions of both the employer and the

insurer were arbitrary and capricious. Further, the employer has continued to

controvert the claim even in the absence of reasonable grounds to do so. Thus, the

trial court was within its authority to assess penalties and attorney fees against the

employer.

CONCLUSION

For these reasons, the judgment of the WCJ is affirmed, and costs of this appeal

are assessed to the Defendant, Van-Tel Communications.

AFFIRMED

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