Troy Trahan v. Turner Industries, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-704

TROY TRAHAN

VERSUS

TURNER INDUSTRIES, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 4
PARISH OF LAFAYETTE, NO. 06-08291
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy and James T. Genovese, Judges.

AFFIRMED AS AMENDED.

Genovese, J., concurs in the result.

Michael B. Miller
Miller & Miller
Post Office Box 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Troy Trahan

Charles J. Duhe, Jr.
Taylor, Wellons, Politz & Duhe, APLC
7924 Wrenwood Boulevard, Suite C
Baton Rouge, LA 70809
(225) 387-9888
COUNSEL FOR DEFENDANT/APPELLANT:
Turner Industries, Inc.

AMY, Judge.

The claimant alleges that he suffered injury to his shoulder as a result of two

separate work-related accidents. The employer denied the claimant’s request for

workers’ compensation indemnity and medical benefits, urging that the claimant’s

allegations were uncorroborated and inconsistent. The claimant brought suit against

the employer to recover these benefits. Following a hearing, the workers’

compensation judge found in the claimant’s favor. The employer appeals, and the

claimant answers the appeal. For the following reasons, we affirm as amended.

Factual and Procedural Background

The claimant, Troy Trahan, brought this action for workers’ compensation

benefits against the defendant, Turner Industries, Inc. (“Turner”), alleging that he

injured his shoulder on two separate occasions while working for Turner. He claims

that he initially hurt it on October 12, 2005, but the incident did not cause him to

cease working. He contends that he injured it again on September 25, 2006 while

unloading scaffolding material at Turner, sending him to the emergency room and

rendering him incapable of returning to work. Trahan filed a disputed claim for

compensation in which he alleged that no wage benefits had been paid and that no

medical treatment had been authorized. He requested penalties, attorney fees, and

legal interest.

Shortly after the claimant underwent shoulder surgery, a hearing was held on

October 3, 2007, wherein the workers’ compensation judge found that Trahan was

injured in the course and scope of his employment with Turner as a result of two

accidents. Accordingly, Turner was ordered to pay “temporary total disability

benefits in the amount of $478.00 per week beginning September 26, 2006, as well

as all reasonable and necessary medical treatment, including shoulder surgery.” The

workers’ compensation judge also ordered the defendant to pay penalties of

$4,000.00 and $16,425.00 in attorney fees.

Turner appeals, asserting that the workers’ compensation judge erred “in

finding that the Claimant met his burden of proof of a work[-]related accident and

injury with Turner Industries” and in awarding penalties and attorney fees despite the

fact that the workers’ compensation claim was reasonably controverted. The

claimant, Trahan, answers the appeal, assigning as error the workers’ compensation

judge’s failure “to award a penalty of $2,000.00 or 12% on all amounts due,

whichever is greater, for each violation rather than limiting the amount of penalty to

$2,000.00 per violation.” Further, Trahan claims that legal interest should have been

awarded in the judgment. For the following reasons, we affirm as amended and

remand.

Discussion

Sufficiency of Proof

Turner contends that Trahan did not meet his burden of proving that he

suffered an injury in the course and scope of employment. Specifically, Turner points

to the lack of evidence to corroborate Trahan’s testimony regarding the accident on

October 12, 2005. On appeal, it focuses on the absence of witnesses to the incident,

the failure of Trahan to report the shoulder injury, and the failure to list the October

12th injury as a pre-existing shoulder condition on an injury questionnaire issued in

April 2006. Furthermore, Turner contends that the claimant’s testimony was

inconsistent with that of the safety supervisor in regard to how the injury was

sustained.

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Concerning the alleged accident on September 25, 2006, Turner argues that

Trahan, again, was unable to produce the existence and/or identity of witnesses and

that he provided testimony which was inconsistent with that of supervisors employed

by Turner. It also relies on the claimant’s ability to continue working on September

25, 2006, as proof that his pain did not differ from that of October 12, 2005, despite

his testimony that the pain was different on the latter occasion, causing him to,

ultimately, seek medical attention. Additionally, Turner contends that Trahan’s

accounts of how the injury occurred differed each time he sought the services of a

medical provider; it also asserts that the fact that the medical records do not mention

any work-related accident is conclusive evidence that a work-related accident did not

occur.

Louisiana Revised Statutes 23:1021(1) defines an accident as “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.” This court set forth the standard of review applicable to work-related

accidents in Jack v. Prairie Cajun Seafood Wholesale, 07-102, pp. 4-5 (La.App. 3

Cir. 10/3/07), 967 So.2d 552, 555-56, writ denied, 07-2388 (La. 2/15/08), 976 So.2d

178:

An employee in a workers’ compensation action must prove a
work-related accident by a preponderance of the evidence. Bruno v.
Harbert Int’l Inc., 593 So.2d 357 (La.1992). The employee’s testimony
alone may be sufficient to discharge this burden, provided that (1) no
other evidence discredits or casts serious doubt upon the employee’s
version of the incident and (2) the employee’s testimony is corroborated
by the circumstances following the alleged incident. Id. In determining
whether the employee has discharged his burden of proof, the workers’
compensation judge should accept as true a witness’s uncontradicted
testimony, even though the witness is a party, absent circumstances that

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cast suspicion on the reliability of that testimony. Id. Further, the
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. Id. Disability can be proven by both medical and lay
testimony, and the workers’ compensation judge must weigh all of the
evidence in order to determine whether the employee has met his burden
of proof of this element. Bailey v. Smelser Oil & Gas, Inc., 620 So.2d
277 (La.1993). This also is a factual determination which is subject to
a manifest error analysis. Id.

The workers’ compensation judge’s oral reasons for ruling provide in pertinent

part:

Defendants are correct that [the claimant] was not a model of
consistency in his reporting of the incidents; and I’ll certainly
acknowledge that the defense witnesses were, if nothing, completely
consistent in their denial; however, unwavering consistency is not
always the benchmark and the best measure of truthfulness. And the
evidence here just does not support the position that there may have
been an accident or accidents on [sic] its facility hit the employer
unexpectedly, totally without any warning, leaving it in a state of total
surprise. That just didn’t occur.

Additionally, the employer seemed to rely heavily on what the
medical reports did not say. There seems to be an assumption, which
many reasonable people do not share, that the information which
appears on an emergency room report contains absolutely all of the
comments and complaints voiced by the patient. Read in context with
the other medical evidence, it seems clear that [the claimant,]
inarticulate perhaps[,] at least tried to get across the point that his
shoulder was injured.

Trahan was clearly injured as it is noted that he underwent shoulder surgery

just days before the trial. The inquiry, then, is whether the injury was sustained in an

accident while in the course and scope of employment with Turner. First, Trahan

testified as to the accident and that he visited the emergency room within days of its

occurrence. As observed by the workers’ compensation judge, Turner relied on the

consistency of its employees’ denials and the medical records being devoid of any

mention of a work-related accident. However, in the way of corroboration, the

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claimant introduced the email from Turner’s benefits administrator dated September

28, 2006, wherein the administrator reveals that Trahan told her he was hurt at work.

Also, Turner’s Family and Medical Leave Act (FMLA) request form indicates that

he was injured at work. Furthermore, the deposition of the insurance adjuster, Lori

Owen, states that she was asked to specifically point out the inconsistent testimony

of the claimant that was relied upon as the basis for denying benefits, and she was

unable to do so. After reviewing the record, we do not find “evidence [that] discredits

or casts serious doubt upon the employee’s version of the incident;” rather, we find

that Trahan’s testimony is “corroborated by the circumstances following the alleged

incident.” Jack, 967 So.2d at 555. Accordingly, this assignment is without merit.

Penalties and Attorney Fees

The workers’ compensation judge ordered Turner to pay penalties and attorney

fees. Turner claims that this award is “clearly wrong.” Louisiana Revised Statutes

23:1201(F) provides:

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 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. Penalties shall be assessed in
the following manner:

....

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(2) This Subsection shall not apply if the claim is reasonably
controverted or if such nonpayment results from conditions over which
the employer or insurer had no control.

(Emphasis added).

In Ivory v. Southwest Developmental Center, 07-1201, pp. 11-12 (La. App. 3

Cir. 3/5/08), 980 So.2d 108, 117, this court explained:

The imposition of penalties and attorney fees may be avoided if
the employer can provide factual and medical evidence to reasonably
controvert the claim for workers’ compensation benefits. Smith v. Town
of Olla, 07-384 (La.App. 3 Cir. 10/3/07), 966 So.2d 1165. “The
employer must have an ‘articulable and objective reason to deny benefits
at the time that it took the action.’” Id. at 1178 (quoting Landry v.
Furniture Center, 05-634, p. 10 (La.App. 3 Cir. 1/11/06), 920 So.2d
304, 311, writ denied, 06-358 (La.4/28/06), 927 So.2d 290.) An award
of penalties will not be overturned on appeal absent manifest error. Id.

In this case, Turner did not pay any indemnity benefits or medical payments to

Trahan. As its grounds for denying the benefits, Turner relies on the previously

mentioned alleged inconsistencies and its assertion that no accident occurred.

Review of the record reveals no manifest error in the workers’ compensation judge’s

determination that Turner failed to reasonably controvert the claim.

In addition to the reasons for ruling previously set forth, the workers’

compensation judge stated:

The gist of the claimant’s argument is that Turner was well aware
of the shoulder injury producing events, and did practically nothing to
respond to the situation. Turner says it did not even know about the
September 2006 accident until April the 3rd of the next year when it
learned of the event at [the claimant’s] deposition. True, no accident
reports were submitted in evidence; however, the evidence that was
offered makes it extremely difficult to comprehend just how the
company could have been so oblivious to [the claimant’s] claims. It
appears from the documents that were introduced into evidence that
there is little doubt that the employer was aware that at least something
happened to [the claimant’s] shoulder; although, the details might not
have been wholly and fully fleshed out at the time. And it’s certainly
fair to say that the company did not cover itself with any glory in any
attempt to find out exactly what did happen.

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....

There’s a subtle but major difference in not knowing and not
wanting to know. There’s a less subtle difference between fully and
fairly investigating a claim and the gathering and orchestrating of data
merely to support the defense to a claim.

As noted in these reasons, it is clear that Turner knew of an injury on

September 25, 2006. Given the evidence, the workers’ compensation judge could

have determined that Turner did not meet its duty to adequately investigate the claim.

Rather, Turner gathered its employees’ testimonies that Trahan never specifically

reported that the accident was work-related, and it relied heavily on what was not

contained in the reports instead of what was contained in them. The workers’

compensation judge permissibly declined to view an absence from these reports as

an inconsistency in them or as a fact tending to reasonably controvert the claim.

Accordingly, we affirm the assessment of penalties and attorney fees.

The claimant, Trahan, questions the amount of the penalties awarded in his

answer to the appeal. The workers’ compensation judge ordered Turner to pay

“$478.00 per week beginning September 26, 2006, as well as all reasonable and

necessary medical treatment, including shoulder surgery” and imposed “a penalty of

$4,000.00 and attorney fees in the amount of $16,425.00.” Trahan asserts that the

judge erred in ordering the defendant to pay a $2,000.00 penalty for failing to pay

indemnity benefits and a $2,000.00 penalty for failing to pay medical benefits instead

of assessing a penalty in the amount of twelve percent of the unpaid benefits pursuant

to La.R.S. 23:1201(F). As cited above, La.R.S. 23:1201(F) requires that a penalty

should be assessed “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 benefits remain unpaid . . . .” (Emphasis added).

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Given the figures involved, it appears that the claimant’s argument has merit insofar

as the penalty for the nonpayment of indemnity benefits exceeds the two thousand

dollar figure. We note that La.R.S. 23:1201(F) imposes a penalty of “twelve percent

of any unpaid compensation.” Therefore, we impose a penalty of twelve percent of

the indemnity payments beginning on September 26, 2006, until paid. However, the

total amount of penalties imposed, inclusive of the $2,000.00 imposed for failure to

provide medical benefits, shall not exceed the statutory cap of $8,000.00.

As for the medical benefits, Trahan contends that the cost “may also exceed the

$2,000.00 penalty.” However, the claimant provided no evidence concerning the

amount of medical benefits owed as the record does not indicate the combined cost

of the surgery and medical care. Accordingly, the $2,000.00 penalty is affirmed.

Legal Interest

Trahan argues that the workers’ compensation judge erred in not awarding

legal interest on all amounts due. Louisiana Revised Statutes 23:1201.3(A) provides

that “[a]ny compensation awarded . . . shall bear judicial interest from the date

compensation was due.” Further, La. Code Civ.P. art. 1921 instructs that “[t]he court

shall award interest in the judgment as prayed for or as provided by law.” Because

the law requires the imposition of interest on compensation due and Trahan’s

pleading contains a request for it, we amend the judgment to include legal interest

beginning on the date compensation was due. For penalties and attorney fees, legal

interest begins at the time of judgment. See McLaughlin v. Hill City Oil Co./Jubilee

Exxon, 97-577 (La.App. 3 Cir. 10/08/97), 702 So.2d 786, writ denied, 97-2797

(La.2/13/98), 706 So.2d 994.

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Attorney Fees on Appeal

Trahan requests that additional attorney fees be awarded for work performed

in defense of this appeal. In Colonial Nursing Home v. Bradford, 02-588 (La.App.

3 Cir. 12/30/02), 834 So.2d 1262, writ denied, 03-364 (La. 4/21/03), 841 So.2d 802,

we held that attorney fees for work performed on appeal are warranted when the

appeal necessitates additional work on the part of the attorney. In light of the

attorney’s efforts in conducting legal research, preparing a written brief, and orally

arguing this matter, we find an additional award of attorney fees in the amount of

$2,500.00 to be appropriate.

DECREE

For the foregoing reasons, the judgment awarding indemnity and medical

benefits to Troy Trahan is affirmed, as is the imposition of penalties and attorney fees.

However, we amend the judgment to reflect the imposition of a penalty of twelve

percent of the indemnity payments beginning on September 26, 2006, until paid, not

to exceed the statutory cap of $8,000.00 on all penalties awarded. The judgment is

further amended to include legal interest on compensation awarded “beginning on the

date the compensation was due,” pursuant to La.R.S. 23:1201.3(A). The judgment

is further amended to reflect the imposition of legal interest on penalties and attorney

fees beginning at the time of judgment. Troy Trahan is awarded additional attorney

fees in the amount of $2,500.00 for work performed on appeal. All costs of this

proceeding are assessed to Turner Industries, Inc.

AFFIRMED AS AMENDED.

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