Wilton C. Portalis, Jr. v. Our Lady of Lourdes Regional Medical Center, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1509

WILTON C. PORTALIS, JR.

VERSUS

OUR LADY OF LOURDES
REGIONAL MEDICAL CENTER, INC.

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRCT 4
PARISH OF LAFAYETTE, NO. 06-05185
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

**********

MICHAEL G. SULLIVAN
JUDGE

**********

Court composed of John D. Saunders, Michael G. Sullivan, and James T. Genovese,
Judges.

Saunders, J., agrees in part, dissents in part, and assigns written reasons.

AFFIRMED.

Philip E. Roberts
Leake & Anderson, LLP
Post Office Drawer Z
Lafayette, Louisiana 70502
(337) 233-7430
Counsel for Defendant/Appellant:
Our Lady of Lourdes Regional Medical Center, Inc.

Janice H. Barber
Attorney at Law
Post Office Drawer 1909
Sulphur, Louisiana 70664
(337) 625-4447
Counsel for Plaintiff/Appellee:
Wilton C. Portalis, Jr.

SULLIVAN, Judge.

In this workers’ compensation case, the employer appeals the award of benefits

to the employee, and the employee appeals the denial of penalties and attorney fees.

We affirm.

Facts

On April 16, 2006, Wilton C. Portalis, Jr., was employed by Our Lady of

Lourdes Regional Medical Center (Lourdes) as a dishwasher. At approximately 7:00

p.m. that evening, a garbage cart Mr. Portalis was pulling tipped over. The cart

weighed approximately 350 pounds. Mr. Portalis claims that the cart struck and

injured his left knee as it tipped over.

Mr. Portalis testified that the cart struck his left knee as it tipped over. He

called to his supervisor, Judy Ellis, to help him pick up the strewn garbage.

According to Mr. Portalis, as Ms. Ellis came to help him, she asked if he was hurt,

and he told her that he was. Ms. Ellis helped him pick up the garbage and put it back

in the cart. They tried to upright the cart but could not. Mr. Portalis removed some

bags from the cart, and they were able to upright it. Mr. Portalis testified that he

heard his knee crack on their first attempt to upright the cart. He also testified that

he asked Ms. Ellis to fill out an accident report, but she could not find one.

Ms. Ellis did not see the cart tip over, and she denied that Mr. Portalis told her

he was injured when the cart tipped over or that he wanted to fill out an accident

report. However, she also testified that she was panicked that night, as it was nearly

the end of the shift on Easter Sunday, most of the other workers were gone, and there

was garbage all over the kitchen. Ms. Ellis left after the garbage cart was uprighted

1

and before Mr. Portalis completed his duties. Ms. Ellis only saw Mr. Portalis walk

for a few seconds after the garbage cart was uprighted.

Mr. Portalis had ridden his bike to work that evening, as he usually did. He

called John Breaux for a ride home because his knee was hurting. Mr. Breaux

testified that he understood Mr. Portalis called him for a ride because he had been

injured at work and that Mr. Portalis was “limping” and could barely walk to his truck

when he arrived at Lourdes.

Mr. Portalis still could not ride his bike the next day and rode the bus to

Lourdes. Upon arrival at Lourdes, he reported that he had been injured the night

before when the garbage cart hit his knee, and he was referred to a clinic operated by

Lourdes for treatment. He was examined by Amelie Hollier, a family nurse

practitioner, who ordered an x-ray. Upon receipt of the x-ray report, Mr. Portalis was

referred to Dr. Michael Duval, an orthopedist, who diagnosed a torn tendon in his left

knee. Dr. Duval performed surgery on Mr. Portalis’s knee on April 26, 2006.

Mr. Portalis was interviewed by Penny Thibodeaux, Lourdes’s workers’

compensation coordinator, after he was examined by Ms. Hollier. In his interview

with Ms. Thibodeaux, Mr. Portalis stated that he contacted Mr. Breaux for a ride

home the previous evening because his knee was hurt; he referred to Mr. Breaux as

his “old boss.” Workers’ compensation benefits were started that day.

On May 18, 2006, Ms. Thibodeaux spoke to Mr. Breaux and asked whether

Mr. Portalis had worked for him in the past. Mr. Breaux explained that Mr. Portalis

had worked for him as a replacement for his regular worker, laying tile and carpet and

painting. She did not ask Mr. Breaux the last date on which Mr. Portalis had worked

for him.

2

Ms. Thibodeaux called Dr. Duval and asked whether it was possible that

someone could suffer an injury such as Mr. Portalis’s injury while laying tile or

carpet. Dr. Duval wrote to Ms. Thibodeaux, explaining that it was possible to suffer

such an injury while laying tile or carpet; however, he also explained that Mr. Portalis

had reported he was injured while he was working at Lourdes. Upon receipt of

Dr. Duval’s letter on June 22, 2006, Ms. Thibodeaux notified Mr. Portalis in writing

that his benefits were terminated.

On August 7, 2006, Mr. Portalis filed a claim for reinstatement of his benefits;

he also sought penalties and attorney fees for wrongful termination of his benefits.

A trial was held on June 28 and July 2, 2007. The workers’ compensation judge

(WCJ) ordered Lourdes to reinstate Mr. Portalis’s benefits but denied his claim for

penalties and attorney fees, finding Lourdes had reasonably controverted his claim.

Lourdes appealed, and Mr. Portalis answered the appeal. Each assigns one error.

Assignments of Error

Lourdes contends that the WCJ erred in finding Mr. Portalis proved the

occurrence of a work-related accident on April 16, 2007, and Mr. Portalis urges that

the WCJ erred in denying his claim for penalties and attorney fees.

Work-Related Accident

Lourdes argues that the WCJ’s acceptance of Mr. Portalis’s claim that he was

injured when the cart tipped over was error because it was based solely on his

unreliable testimony which was discredited and cast in serious doubt by other

evidence. Lourdes urges that the following facts cast serious doubt on Mr. Portalis’s

credibility and his claim that he was injured: 1) Mr. Portalis testified that he told

Ms. Ellis he was hurt and discussed filling out an accident report the night of the

3

accident, which Ms. Ellis denied; and 2) Mr. Portalis continued to work and did not

seek medical treatment at the hospital the night of the accident, even though,

according to the nurse practitioner who treated him the day after the accident, his

injury would have caused immediate pain. Lourdes also points to pre-accident and

pre-trial claims by Mr. Portalis that he had never made a claim for workers’

compensation benefits or personal injury damages, when he actually had, as evidence

that the WCJ’s factual findings were wrong.

In Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8

(La. 7/1/97), 696 So.2d 551, 556 (citations omitted) (alteration in original), the

supreme court set forth the standard of review in workers’ compensation cases:

Factual findings in workers’ compensation cases are subject to the
manifest error or clearly wrong standard of appellate review. In
applying the manifest error-clearly wrong standard, the appellate court
must determine not whether the trier of fact was right or wrong, but
whether the factfinder’s conclusion was a reasonable one. Where there
are two permissible views of the evidence, a factfinder’s choice between
them can never be manifestly erroneous or clearly wrong. Accordingly,
“if the [factfinder’s] findings are reasonable in light of the record
reviewed in its entirety, the court of appeal may not reverse, even if
convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently.”

When the factual findings are based upon the credibility of witnesses, even greater

deference is given because the WCJ is most aware of the variations in demeanor and

tone that weigh so heavily in determining belief in what is being said. Rosell v.

ESCO, 549 So.2d 840 (La.1989).

To recover workers’ compensation benefits, a claimant must establish a

“personal injury by accident arising out of and in the course of his employment.”

La.R.S. 23:1031(A). The claimant’s burden of proof is by a preponderance of the

evidence, even if the accident is unwitnessed. Bruno v. Harbert Int’l, Inc., 593 So.2d

4

357 (La.1992). In Bruno, 593 So.2d at 361 (citations omitted), the supreme court set

forth the following criteria for cases in which proof of the accident is supported by

the claimant’s testimony alone:

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. Corroboration of the
worker’s testimony may be provided by the testimony of fellow workers,
spouses or friends. Corroboration may also be provided by medical
evidence.

When ruling on Mr. Portalis’s claim, the WCJ acknowledged the discrepancies

between his testimony and Ms. Ellis’s testimony but explained that she found his

explanation of what occurred that night credible. Importantly, the WCJ relied on her

perceptions of Mr. Portalis as he testified to assess his credibility, finding that while

Mr. Portalis did make misstatements, she found him to be “simple-minded,” which

contributed to some of the questions concerning his credibility. The WCJ further

explained that there was no suggestion Mr. Portalis was injured before he reported

to work on April 16. Ms. Ellis’s admission that she was panicked that night when the

cart tipped over and Mr. Portalis’s description of her to Ms. Thibodeaux as

“hysterical” led the WCJ to conclude that it “didn’t sink in” with Ms. Ellis that

Mr. Portalis complained he was injured or in pain. The WCJ pointed out that while

Ms. Hollier testified Mr. Portalis’s injury would have caused him immediate pain and

would have prevented him from walking without an obvious limp, she also testified

that his pain would have worsened the more he walked. Consequently, the WCJ

concluded that his limp may not have been noticeable to Ms. Ellis in the few seconds

she saw him walk after the garbage cart was uprighted. The WCJ also observed that

Mr. Portalis may have a high tolerance for pain. Lastly, although Ms. Thibodeaux

5

believed that Mr. Portalis may have gone to work for Mr. Breaux after he left Lourdes

on April 16 and injured himself then, the WCJ was not persuaded that he had.

The inconsistencies complained of by Lourdes were addressed by the WCJ,

especially that Mr. Portalis was not credible. Although there is evidence which may

be construed as casting doubt on Mr. Portalis’s credibility, the WCJ was in a better

position to judge his credibility and thoroughly considered and weighed his testimony

against Ms. Ellis’s testimony and other evidence which cast doubt on his credibility.

Accordingly, we find no error with the WCJ’s determination.

Penalties and Attorney Fees

Mr. Portalis argues that the WCJ erred in finding Lourdes reasonably

controverted his claim prior to terminating his workers’ compensation benefits on

June 22, 2006, and in denying his claim for penalties and attorney fees as provided

for in La.R.S. 23:1201(I). Under this provision, an employer who discontinues

payment of benefits is subject to penalties and attorney fees “when such

discontinuance is found to be arbitrary, capricious, or without probable cause.”

La.R.S. 23:1201(I).

The WCJ denied penalties and attorney fees, finding that resolution of this

matter required a credibility determination which could not be made without a

hearing because there was reasonable evidence which controverted Mr. Portalis’s

claim, e.g., Ms. Ellis’s testimony that he did not tell her he was injured when the cart

tipped over and that he did not request to fill out an accident report; Mr. Portalis’s

reference to Mr. Breaux as his boss; Mr. Breaux’s corroboration that Mr. Portalis had

worked for him laying carpet and tile; and Dr. Duval’s opinion that Mr. Portalis could

have injured his knee laying carpet or tile.

6

Mr. Portalis’s credibility was called into question by Ms. Thibodeaux’s

investigation, and his claim could not be resolved on objective evidence alone.

Therefore, we agree that a credibility determination was necessary to determine the

validity of his claim, and we find no error with the WCJ’s denial of penalties and

attorney fees.

Disposition

The judgment of the WCJ is affirmed. Costs of this appeal are assessed equally

to Mr. Portalis and Lourdes.

AFFIRMED.

7

NUMBER 07-1509

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

WILTON C. PORTALIS, JR.

VERSUS

OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC.

Saunders, J., agrees in part, dissents in part, and assigns written reasons.

I agree with the majority’s finding that the WCJ committed no error in finding

that Portalis was injured in a work-related accident. However, I do not agree with the

majority’s decision to affirm the WCJ’s finding that Lourdes reasonably controverted

the claim.

The record indicates the following facts were easily discoverable to Lourdes

when it decided to discontinue Portalis’ benefits:

• On April 16, 2006, Portalis rode his bike to work, as he usually did.

• Near the end of his shift at about 8:00 PM on Easter Sunday, a heavy cart
tipped over near Portalis.

• Portalis claims to have told Judy Ellis of the injury while they were picking up
the contents of the cart from the floor, and claims to have asked to fill out an
accident report. Ms. Ellis claims he did neither.

• Ms. Ellis was panicked that night due to the cart tipping over so near the end
of her shift on the night of Easter Sunday.

• On that night of the alleged accident, Portalis called his old boss, Mr. Breaux
for a ride home from work despite having his bicycle.

• Mr. Breaux had understood that the reason Portalis wanted a ride home was
that he was injured that night while working at Lourdes.

• Mr. Breaux observed Portalis was limping upon arrival to give him a ride home
from work that evening.

• Mr. Breaux remembered that Portalis was in great pain, could barely walk, and
needed help to load the bike into the vehicle.

• The following morning, Portalis rode the bus to work, rather than riding his
bicycle.

• Upon arrival that morning at work, Portalis reported his injury from the night
before.

• An objective injury was found via X-Ray ordered by Amelie Hollier, a family
nurse practitioner.

• While Portalis stated that he had not ever filed a workers’ compensation claim,
he had actually filed one in the past.

• On May 10, 2006, Portalis mentioned Mr. Breaux to Penny Thibodeaux, the
workers’ compensation coordinator.

• Ms. Thibodeaux inquired as to the identity of Mr. Breaux. Portalis replied that
Mr. Breaux was his “old boss.”

• Ms. Thibodeaux spoke with Mr. Breaux. He told her that Portalis had filled in
for another worker of his, Portalis’ brother, in the past.

• Ms. Thibodeaux did not ask Portalis, nor Breaux, the date which they had last
worked together.

• Portalis had not worked for Breaux since he began working at the hospital.

• Ms. Thibodeaux spoke to someone in Dr. Duval’s office, inquiring whether
Portalis’ injury could have been from laying tile or carpet.

• Via letter, Dr. Duval stated that Portalis’ injury could have happened while
laying tile or carpet. However, that letter also indicated that Portalis had told
Dr. Duval that the injury resulted from an accident that occurred while working
at the hospital.

Given the above facts, I find that Thibodeaux acted arbitrarily and capriciously.

Ms. Thibodeaux decided to discontinue Portalis’ benefits on the fabricated theory that

he was injured while working at another job with Mr. Breaux. Prior to discontinuing

workers’ compensation benefits, an employer/insurer has a duty to make a thorough

inquiry into the facts of a case, not simply focus exclusively upon a sliver of evidence

that could provide an excuse to discontinue coverage. Thus, I respectfully dissent.

2