Mark Maddox v. Texas Gas Transmission Corp.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-0906

MARK E. MADDOX

VERSUS

TEXAS GAS TRANSMISSION CORPORATION, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 03
PARISH OF CALCASIEU, NO. 005-05310
HONORABLE SAM LOWERY,
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
James T. Genovese, Judges.

AFFIRMED.

J. Craig Jones
Craig R. Hill
Jones & Hill, L.L.C.
131 Highway 165 South
Oakdale, LA 71463
(318) 335-1333
COUNSEL FOR PLAINTIFF/APPELLEE:
Mark E. Maddox

Patrick F. Robinson
Law Office of Keith S. Giardina
9100 Bluebonnet Centre, Suite 300
Baton Rouge, LA 70809
(225) 293-7272
COUNSEL FOR DEFENDANTS/APPELLANTS:
Gulf South Pipeline Company, L.P.
Liberty Mutual Insurance Company

PETERS, J.

In this workers’ compensation case the defendants, Gulf South Pipeline

Company, L.P. (Gulf South) and its workers’ compensation insurer, Liberty Mutual

Insurance Company (Liberty Mutual), appeal a judgment in favor of Gulf South’s

former employee, Mark Maddox. For the following reasons, we affirm the judgment

of the workers’ compensation judge (WCJ) in all respects.

DISCUSSION OF THE RECORD

Mark Maddox began working for Gulf South in October of 2004 as a pipeline

operator. Included within his duties were inspecting, repairing, and maintaining

pipelines, and Gulf South provided him with an ‘all-terrain’ vehicle, more commonly

referred to as a ‘four-wheeler,’ to use in performing those duties, as well as a trailer

to haul the four-wheeler.

On February 16, 2005, Mr. Maddox was returning from a field inspection when

he had to abandon the trailer near his home because of difficulties with one of the

wheels. The following day Mr. Maddox returned to the disabled trailer, removed the

wheel, and took it with him to find bearings to repair it. He testified that while he

was removing the wheel, his back gradually became stiff and painful.

Mr. Maddox testified that after purchasing bearings, he returned to the disabled

trailer and, as he took the trailer tire out of the back of his pickup truck, he felt a pain

in his lower back. At about that time Kenneth Mahaffey and Roger Broussard, both

lifelong acquaintances of Mr. Maddox, drove by the disabled trailer. Observing that

Mr. Maddox seemed to be having difficulty, they stopped to help. Mr. Mahaffey

testified at trial that he asked Mr. Maddox what was wrong, and that Mr. Maddox said

that he had hurt his back. Mr. Broussard repaired the trailer while Mr. Mahaffey and

Mr. Maddox watched.

Mr. Maddox did not immediately report his back injury to anyone at Gulf

South. He testified at trial that he did not report the incident because he had just

begun work for Gulf South, he considered the back injury as “no big deal,” and he

hoped that it was simply a stiff back. He finished his assigned duties on February 17,

and was not scheduled to return to work until the next Monday, February 21, 2005.

Mr. Maddox testified that on the day he returned to work, he again strained his back

while attempting to loosen a rusty pipe. Again, Mr. Maddox did not report this injury

to anyone at Gulf South. He testified that he continued to work the remainder of the

week, but was not required to perform any strenuous physical work during that time.

Despite his best hopes, his injured back continued to trouble him.

On Friday, February 25, 2005, Mr. Maddox was at home, preparing to go to a

high school basketball game to watch one of his sons play, when he began to

experience muscle spasms in his back. They began as he bent down to pull on his

boots and were so severe that he fell to the floor. He remained in bed the rest of the

weekend. When he finally sought medical attention at a hospital emergency room on

Sunday of that weekend, he reported to the medical personnel that he injured his back

while pulling on his boots. He was then treated for an acute low back strain and was

released.

In an attempt to give his back time to heal, Mr. Maddox did not return to work

the next week after his emergency room visit. His excuse to Gulf South for not

working was that he was injured while pulling on his boots. His back pain did not

subside, and, on March 7, 2005, Mr. Maddox sought treatment from his family

physician, Dr. Herbert Nesom, Jr. Again, he related the cause of his pain to the

incident while pulling on his boots. Dr. Nesom diagnosed an acute back strain and

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prescribed medication. The following week Dr. Nesom released Mr. Maddox to

return to regular duty, but, because of recurring pain, Mr. Maddox did not return to

work. Instead, he returned to see Dr. Nesom on March 24, 2005. At that time Dr.

Nesom suggested a lumbar MRI and referred his patient to a neurosurgeon, Dr. M.

Lawrence Drerup. When performed, the MRI results revealed disc protrusions at L1-

2 and L5-S1.

In the history given to Dr. Drerup, Mr. Maddox still referenced his pain to the

February 25 incident at his home. Given his history as well as the MRI results, Dr.

Drerup, on April 8, 2005, recommended lumbar epidural steroid injections, another

MRI, and additional diagnostic testing.

Mr. Maddox testified that when he returned to Dr. Nesom on April 11, 2005,

the doctor informed him that a back injury as severe as his was unlikely to be caused

by the mechanics of pulling on a boot. It was at this point that Mr. Maddox expanded

the history of his back condition by informing Dr. Nesom of the events of February

17, 2005, that occurred while he worked on the trailer. The next day, Mr. Maddox

informed his supervisor at Gulf South that he had suffered a work-related injury.

Mr. Maddox testified that on the same day he spoke with his supervisor, April

12, 2005, Steve Bienvenu, the vice-president of Gulf South, telephoned him and

informed him that he [Mr. Bienvenu] was disappointed in him. Mr. Maddox was

fired the following day, and Gulf South refused to pay workers’ compensation or

medical benefits. On July 7, 2005, Mr. Maddox filed a disputed claim for workers’

compensation benefits.

Following an April 10, 2006 trial on the merits, the WCJ issued oral reasons

for judgment and entered a judgment in favor of Mr. Maddox and against the

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defendants,1 awarding Mr. Maddox supplemental earnings benefits, medical benefits,

past medical expenses, $6,000.00 in penalties, and $8,000.00 in attorney fees.

The defendants now appeal, alleging three assignments of error.

OPINION

Assignment of Error Number One

The defendants first argue that Mr. Maddox failed to prove that a work-related

accident occurred. In considering this assignment of error, we note that “[t]he trial

court’s determinations as to whether the worker’s testimony is credible and whether

the worker has discharged his or her burden of proof are factual determinations not

to be disturbed on review unless clearly wrong or absent a showing of manifest

error.” Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992).

“[T]he plaintiff-worker in a compensation action has the burden of establishing

a work-related accident by a preponderance of the evidence.” Id. Additionally,

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 doubt upon the worker’s version of the
incident; and (2) the worker’s testimony is corroborated by the
circumstances following the alleged incident. West v. Bayou Vista
Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13
Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d
Ed.1980). Corroboration of the worker’s testimony may be provided by
the testimony of fellow workers, spouses or friends. Malone & Johnson,
supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991)].
Corroboration may also be provided by medical evidence. West, supra.

In determining whether the worker has discharged his or her
burden of proof, the trial court should accept as true a witness’s
uncontradicted testimony, although the witness is a party, absent
“circumstances casting suspicion on the reliability of the testimony.”

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The WCJ initially signed a judgment erroneously casting Texas Gas Transmission
Corporation (Texas Gas), an affiliate of Gulf South, in judgment for workers’ compensation benefits.
Texas Gas appealed that judgment to this court, and we remanded it to the WCJ for him to cast the
correct parties in judgment. On May 17, 2007, the WCJ signed an amended judgment naming the
defendants, Gulf South and Liberty Mutual, in place of Texas Gas.

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West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381,
1383 (La.1987).

Id.

The defendants’ primary argument in this assignment relates to Mr. Maddox’s

actions and inactions in reporting the events of February 17, 2005, to Gulf South and

his healthcare providers until April of 2005. In rejecting this argument, we note that

Mr. Maddox explained at trial why he did not initially report the February 17

incident. As previously stated, he did not initially consider the incident significant

and hoped that he merely suffered from a temporary stiff back. Of obvious

importance to him was the fact that he had only recently begun work with Gulf South,

and he wished to protect that relationship. This concern in protecting his employment

was made more significant to him because of his past medical history. Mr. Maddox

had previously suffered from a ruptured disc, and that injury had been repaired in

2000 by surgery. He had not suffered any back pain since that recovery until the

February 17, 2005 incident.

Mr. Maddox testified at trial that he initially told the medical personnel and

Gulf South that he injured his back while pulling on his boots because he was not

aware that it was medically possible for his back pain on February 25 to be related to

the back injury that occurred on February 17. He only came to understand that

connection after discussions with Dr. Nesom in April of 2005.

Finally, although no one witnessed the actual injury on February 17, 2005, Mr.

Mahaffey corroborated its occurrence through that which he observed and heard

when he stopped to help Mr. Maddox repair the trailer.

In the oral reasons for judgment, the WCJ stated the following concerning Mr.

Maddox’s credibility:

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The evidence suggests and the tenure [sic] and tone of the testimony,
primarily from the claimant, suggests that more – it doesn’t suggest, it
absolutely affirms, that he’s a hard working, honest individual; and for
the purposes of litigation perhaps even too honest but that’s beside the
point. I just don’t detect, nor did I detect in anything else I have heard,
any suggestion of any duplicity, any malingering, anything untoward in
this man. I think what happened is – the chronology suggests that he
did, in fact, injure himself in this instance with the four-wheeler, and it
no doubt exacerbated, either itself or it just came to fruition later on – I
don’t for a moment think that this man’s back problem began with
putting on boots. That takes a lot of imagination to even include that.

Further, the WCJ said that Mr. Maddox had “met his burden of proof and then some.”

Applying the standards in Bruno, 593 So.2d 357, we find no manifest error in

the WCJ’s factual determinations. Therefore, we find no merit in the defendants’ first

assignment of error.

Assignment of Error Number Two

The defendants next assert that the record fails to show that Mr. Maddox’s

injury was caused by the work accident on February 17, 2005. We reject this

argument as well.

A claimant’s disability is presumed to have been caused by an accident, if

before the accident the claimant was in good health but commencing with the

accident the symptoms of the disabling condition appear and continuously manifest

themselves, provided that the medical evidence establishes a reasonable possibility

of a causal connection between the accident and the disabling condition. West v.

Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). In fact, “[o]nce the disabled

employee establishes the presumption of a causal relationship, the party denying the

existence of the presumed fact assumes both the burden of producing evidence and

the burden of persuasion on the issue.” Walton v. Normandy Vill. Homes Ass’n, Inc.,

475 So.2d 320, 325 (La.1985).

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Here Mr. Maddox, whom the WCJ found to be credible, testified that before

the accident he had had no back pain since 2000, but that his back was stiff and

painful from the February 17, 2005 accident until he became bedridden on February

25, 2007. His treating physician, Dr. Nesom, completed a claim form on April 25,

2005, stating that the cause of Mr. Maddox’s back pain was a work-related accident.

This establishes the presumption that Mr. Maddox’s disability was caused by the

February 17, 2005 work-related accident, and the defendants did not meet their

burdens of producing evidence and persuasion to the contrary.

The WCJ did not manifestly err in finding that Mr. Maddox discharged his

burden of proof to show that his injury was caused by the work accident. Bruno, 593

So.2d 357. Accordingly, we find no merit in this assignment of error.

Assignment of Error Number Three

Finally, the defendants argue that the trial court erred in finding that the denial

of Mr. Maddox’s claim was arbitrary and capricious so as to justify an award of

penalties and attorney fees. We disagree with this argument as well.

The WCJ awarded $6,000.00 in penalties ($2,000.00 for failure to begin

indemnity payments, $2,000.00 for failure to pay medical expenses, and $2,000.00

for failing to investigate the claim) and $8,000.00 in attorney fees. The determination

of whether an employer should be cast with penalties and attorney fees is a question

of fact which should not be reversed absent manifest error. Romero v.

Northrop-Grumman, 01-24 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, writ denied,

01-1937 (La. 10/26/01), 799 So.2d 1144.

Louisiana Revised Statute 23:1201(F)(2) provides for the payment of penalties

and attorney fees for the failure to provide payment of benefits unless the claim is

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reasonably controverted or the failure to pay results from conditions over which the

employer had no control.

[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 . . . 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.

Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890.

The defendants argue that their refusal to pay benefits was reasonable because

of Mr. Maddox’s initial statements to his medical providers and to Gulf South

concerning how he injured his back. While we agree that these initial statements did

not require investigation, the defendants were not entitled to “blindly rely” on these

initial reports, but had “a continuing duty to investigate when [they] received the

subsequent medical information.” Bradley v. ConAgra Poultry Co., 03-23, p. 9

(La.App. 3 Cir. 4/30/03), 843 So.2d 1255, 1261.

It is undisputed that on April 12, 2005, Mr. Maddox placed Gulf South on

notice that he was claiming a work-related injury based on the February 17, 2005

incident. It is equally undisputed that on April 25, 2005, Dr. Nesom reported in the

disability claim that Mr. Maddox’s back injury resulted from a work-related accident.

Receipt of this information gave rise to a duty on the defendants to investigate the

claim.

Outside of requesting and receiving information from Dr. Nesom concerning

Mr. Maddox’s injury (which gave credibility to Mr. Maddox’s claim that the injury

was work-related), the defendants took no other steps to obtain evidence that would

reasonably controvert the fact that the injury was work-related. The WCJ based his

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award in large part on the defendants’ failure to investigate Mr. Maddox’s claim,

stating “[t]he company’s investigation could not be characterized as aggressive. I

don’t even think I could characterize it as existent.”

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

attorney fees.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’

compensation judge in all respects and assess all costs of this appeal to the

defendants, Gulf South Pipeline Company, L.P. and Liberty Mutual Insurance

Company.

AFFIRMED.

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