Steve Honeycutt v. Henry's Plumbing

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1270

STEVE HONEYCUTT

VERSUS

HENRY’S PLUMBING

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT - # 2
PARISH OF RAPIDES, NO. 06-07111
SHERAL KELLAR, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

REVERSED AND RENDERED.

Thomas Day Travis
Attorney at Law
2237 S. Acadian Thruway, #701
Baton Rouge, LA 70808
Counsel for Defendant/Appellee:
Henry’s Plumbing

Robert L. Beck, III
Rivers, Beck, Dalrymple
P. O. Drawer 12850
Alexandria, LA 71315-2850
Counsel for Claimant/Appellant:
Steve Honeycutt

PICKETT, Judge.

The claimant, Steve Honeycutt (Honeycutt), appeals a judgment of the Office

of Workers’ Compensation (OWC) dismissing his suit for benefits for an injury

allegedly sustained in the course and scope of his employment. We reverse the

judgment of the OWC and award the claimant benefits plus penalties and attorney’s

fees.

FACTS

The claimant was employed by the defendant, Manuel Henry d/b/a Henry’s

Tree Service and referred to in the OWC form 1008 as Henry’s Plumbing Company,

LLC (collectively referred to as Henry). Honeycutt and two men hired by him, Larry

“Rooster” Bryant (Bryant) and Travis LaCroix (LaCroix), were engaged by Henry to

build steps and small porches for FEMA trailers being supplied to Hurricane Katrina

victims in Plaquemines Parish. The trio worked for Manuel from January 13, 2006,

through February 13, 2006. The steps and porches were made of “green” lumber,

fresh from the mill. Consequently, the wood was still wet from processing and was

heavier than normal. Honeycutt testified that on February 10, 2006, he was sawing

wood for Bryant and LaCroix. He stated that as he reached back with his right hand,

to grab a 4x4 to cut for the project, he sustained an injury to his right shoulder. After

injuring his shoulder, he stated that he informed Bryant and LaCroix of his injury and

returned to the trailer where the three men were staying. Honeycutt testified that he

was unable to return to work. Honeycutt stated that the next morning, Henry came

by the trailer to check on him and that, during the visit, he informed Henry of his

injury. According to Honeycutt, Henry said that since the job was just about finished,

Honeycutt should wait to see if the injury was nothing more than a pulled muscle.

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Honeycutt’s testimony was corroborated by both Bryant and LaCroix. Shortly

thereafter, the job was completed and, on February 13, Honeycutt and Bryant, left

together for their homes in Rapides Parish. Bryant testified he had to drive back

home because the pain in Honeycutt’s arm/shoulder prevented him from doing so.

Following his return to Rapides Parish, Honeycutt’s shoulder did not improve

causing him to seek medical treatment. He first consulted Dr. Wynn Harvey, a

chiropractor; then he saw Dr. Warren Plauche, a family practice physician. When he

got no relief from either of these doctors, he sought treatment at Huey P. Long

Medical Center in Pineville where he underwent an MRI which substantiated

objective indications of a right shoulder injury. Finally, in June 2007, he consulted

Dr. Gerald Leglue at the Leglue Physical Medicine Clinic. His records from all of

these providers are consistent in that he constantly complained of right shoulder pain

and related that pain to an accident at work in February 2006.

At the hearing before the Workers’ Compensation Judge on June 12, 2007,

Manuel testified that no one on the job site reported to him that Honeycutt injured his

shoulder and that the first notice he got of Honeycutt’s injury was the letter from the

claimant’s attorney dated September 13, 2006. Manuel testified that upon receiving

the letter notifying him of Honeycutt’s injury, he contacted Lacroix who stated he

didn’t remember anything about Honeycutt injuring his shoulder. However, when

Lacroix testified at the June hearing, he stated that not only did Honeycutt tell him

about the injury, but that from his observation of how Honeycutt was holding his

shoulder, “you could tell he hurt it.” The only evidence we found in the record that

was adverse to Honeycutt’s case was the discrepancy between Honeycutt’s testimony

at the hearing wherein he denied any prior motor vehicle accident and the May 2005

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records from Honeycutt’s admission to Huey P. Long Medical Center for a perforated

gastric ulcer. In those records there is a reference to a prior motor vehicle accident.

The WCJ found that Honeycutt failed to carry his burden of proving that he

sustained an on-the-job accident causing injury. Honeycutt appealed.

LAW AND DISCUSSION

At the outset we note that at the June 12, 2007 hearing which forms the basis

for this appeal, the parties agreed that if the WCJ found Honeycutt to be disabled, he

would be entitled to receive the statutory maximum compensation rate in effect at the

time of his injury of $454.00 per week.

Recently, in Maddox v. Texas Gas Transmission Corp., 07-906, pp. 4-5

(La.App. 3 Cir. 12/5/07), 971 So.2d 541, 544-45, this court reviewed the law

applicable to this case (first and third alterations in original):

“[T]he plaintiff-worker in a compensation action has the burden
of establishing a work-related accident by a preponderance of the
evidence.” Id. [Bruno v. Harbert Int'l Inc., 593 So.2d 357, 361
(La.1992)] 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.” West, 371 So.2d at

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

Id.

In the case sub judice, Honeycutt’s testimony was corroborated by the

circumstances following the alleged incident, i.e., he retired to the trailer and could

neither return to work nor drive home three days later. Additionally his testimony

was corroborated by the testimony of fellow workers and by the medical evidence

submitted. The record contains no evidence which discredits or casts serious doubt

upon the worker’s version of the incident. The only evidence which discredits or

casts any doubt upon Honeycutt’s credibility is the reference to a prior motor vehicle

accident in the May 2005 records from Huey P. Long Medical Center and his

consistent denial of same. However, even if Honeycutt had been involved in a prior

motor vehicle accident it would have no bearing on this case. It is well settled that

a worker’s pre-existing condition does not bar his recovery under our workers’

compensation laws because an employer takes the employee as he finds him. Even

an abnormally susceptible employee is entitled to the same protection as is a healthy

worker. Fontenot v. Wal-Mart Stores, Inc., 03-1570 (La.App. 3 Cir. 4/7/04), 870

So.2d 540, writ denied, 04-1131 (La. 6/25/04), 876 So.2d 843.

We are well aware that a “workers’ compensation judge’s determinations on

whether the employee’s testimony was credible and on whether the employee

met his burden of proof are factual findings not to be disturbed on appeal absent

manifest error.” Jack v. Prairie Cajun Seafood Wholesale, 07-102, pp. 4-5 (La.App.

3 Cir. 10/3/07), 967 So.2d 552, 555-56 (citations omitted). However, we are also

cognizant of the rule that a worker’s “[d]isability can be proven by both medical and

lay testimony, and the workers’ compensation judge must weigh all of the evidence

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in order to determine whether the employee has met his burden of proof of this

element.” Id. at 556 (emphasis ours).

Considering the record as a whole, we find the WCJ was clearly wrong and that

Honeycutt carried his burden of proving a work-related accident and injury.

Accordingly, the judgment of the WCJ is reversed and the claimant is awarded

benefits commencing on February 10, 2006, along with interest on all past due

weekly payments.

We turn now to this issues of penalties and attorney’s fees. At the June 2007

hearing, Wayman Bryant (W. Bryant) testified on behalf of LWCC, Manuel’s

workers’ compensation carrier. W. Bryant testified that he was assigned the case in

the fall of 2006 and contacted Manuel. He learned that Honeycutt had retained

counsel and called to try to arrange to take a statement. He admitted that no statement

was taken from Honeycutt and that he neither sent a written request for an interview

nor scheduled any depositions. Neither did he take a statement from Honeycutt’s co-

workers, Bryant and LaCroix. W. Bryant also admitted that Honeycutt was never

referred to any physician by LWCC and that none of the medical bills submitted to

LWCC were ever paid. W. Bryant further admitted that he had received a written

request for benefits from Honeycutt’s counsel but that no benefits were ever paid.

The award of penalties and attorney’s fee in workers’ compensation cases is

justified in several situations. In Rivera v. M & R Cable Contractors, Inc., 04-985,

pp. 8-9 (La.App. 3 Cir. 12/15/04), 896 So.2d 90, 96-97, this court noted:

Pursuant to La.R.S. 23:1201(F), an employee is entitled to
penalties and attorney fees when the employer fails to commence benefit
payments and pay medical expenses. La.R.S. 23:1201(F) provides, in
pertinent part:

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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 in an amount up to the greater of
twelve percent of any unpaid compensation or medical
benefits, or fifty dollars per calendar day for each day in
which any and all compensation or medical benefits remain
unpaid or such consent is withheld, together with
reasonable attorney fees for each disputed claim; however,
the fifty dollars per calendar day penalty shall not exceed
a maximum of two thousand dollars in the aggregate for
any claim. The maximum amount of penalties which may
be imposed at a hearing on the merits regardless of the
number of penalties which might be imposed under this
Section is eight thousand dollars. An award of penalties
and attorney fees at any hearing on the merits shall be res
judicata as to any and all claims for which penalties may be
imposed under this Section which precedes the date of the
hearing.

Awards of penalties and attorney fees are penal in nature and are
imposed to discourage indifference and undesirable conduct by
employers and insurers. Williams v. Rush Masonry, 98-2271
(La.6/29/99), 737 So.2d 41. These statutes awarding penalties and
attorney fees are to be strictly construed. Id.

Whether an employer or insurer should be cast with penalties and
attorney fees is a question of fact. Authement v. Shappert Engineering,
02-1631 (La. 2/25/03), 840 So.2d 1181. “The employer must adequately
investigate the claim, and the crucial inquiry is whether the employer
had an articulable and objective reason for denying or discontinuing
benefits at the time it took that action.” Williams, 737 So.2d at 46.

Furthermore, “[i]n Fontenot v. Reddell Vidrine Water District, 02-439, 02-478

(La. 1/14/03), 836 So.2d 14, rehearing granted in part on other grounds, 02-442,

01-478 (La. 4/21/03), 851 So.2d 917, the supreme court held that La.R.S. 23:1201(F)

provides multiple penalties for multiple violations of compensation and medical

benefits claims.” Id.

In the case sub judice, the employer failed to adequately investigate

Honeycutt’s claim, failed to pay benefits, failed to authorize medical treatment, and

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failed to pay the submitted medical bills within sixty day of their submission (La.R.S.

23:1201(E)).

Pursuant to La.R.S. 23:1201(F), penalties shall be awarded for an
employer’s failure to properly pay benefits unless the claim is
reasonably controverted or resulted from conduct over which the
employer or insurer had no control. In order to reasonably controvert a
claim, the employer must have some valid reason or evidence upon
which to base its denial of benefits.

Trahan v. City of Crowley, 07-266, p. 5(La.App. 3 Cir. 10/3/07), 967 So.2d 557, 561.

LWCC cannot use its failure to adequate investigate Honeycutt’s claim as a defense.

In Nelson v. Windmill Nursery of Louisiana, L.L.C., 04-1941, pp. 3-5 (La.App.

1 Cir. 9/23/05), 923 So.2d 709, 712-13, writ denied, 05-2294, (La. 3/10/06), 925

So.2d 516, our colleagues of the first circuit noted:

LSA-R.S. 23:1121 B(1) provides that the employee shall have the right
to select one treating physician in any field or specialty. An employer’s
refusal to authorize reasonable and necessary medical treatment for an
injured employee may justify an award of penalties and attorney fees.
LSA-R.S. 23:1201 F.

....

LSA-R.S. 23:1121 B(1) makes mandatory an employee’s right to
select a treating physician. This statute sets no timeframe for exercising
a right to select a treating physician, nor does it require that any prior
medical examination be conducted. Further, it does not require proof of
causation of the accident.

....

[LWCC’s] failure to authorize medical treatment to [Honeycutt]
despite h[is] request implicated the penalty statute, LSA-R.S. 23:1201,
which provides in pertinent part:

F. 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 in an amount up to the greater of
twelve percent of any unpaid compensation or medical
benefits, or fifty dollars per calendar day for each day in

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which any and all compensation of medical benefits remain
unpaid of such consent is withheld.

(Emphasis added.)

Based upon the clear language of the statute, a penalty and attorney fee
can be imposed for this failure to authorize treatment except where the
claim is reasonably controverted. LSA-R.S. 23:1201 F(2)[.]

We find nothing in the record which would support an argument that Honeycutt’s

claim was “reasonably controverted.”

Accordingly, for the reasons stated we award the claimant, Steve Honeycutt,

disability payments of $454.00 per week retroactive to the date of his injury, February

10, 2006, plus interest thereon from the date of injury until paid. Further, we award

him $2,000.00 in penalties for the failure of LWCC to pay him weekly compensation

benefits; we award him another $2,000.00 in penalties for LWCC’s failure to

authorize medical care with his physician of choice, Dr. Gerald Leglue; and we award

him a third penalty of $2,000.00 for LWCC’s failure to timely pay the submitted

medical bills. In addition to the foregoing we award Honeycutt $7,500.00 in

attorney’s fees. We cast LWCC with all costs of these proceedings at both the trial

and appellate levels.

REVERSED AND RENDERED.

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