Gregory Scott v. City of Pineville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 08-1410

GREGORY SCOTT

VERSUS

CITY OF PINEVILLE

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 07-01786
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

AFFIRMED.

Joseph Yuri Beck
Hunter & Morton
P. O. Box 11710
Alexandria, LA 71315
(318) 487-1997
Counsel for Plaintiff/Appellee:
Gregory Scott

D. Heath Trahan
Keiser Law Firm
P. O. Box 12358
Alexandria, LA 71315-2358
(318) 443-6168
Counsel for Defendant/Appellant:
City of Pineville

EZELL, JUDGE.

The City of Pineville appeals the decision of the workers’ compensation judge

finding that Gregory Scott sustained a work-related accident causing injury. The

workers’ compensation judge awarded Mr. Scott payment of past and future medical

treatment, without the benefit or discount of the workers’ compensation fee schedule,

temporary total disability benefits (TTDs) from the date of his accident, $2,000 in

penalties for the non-payment of medical benefits, $2,000 for the non-payment of

TTDs, and $4,500 in attorney fees. For the following reasons, we affirm the decision

of the workers’ compensation judge.

On January 3, 2007, while in the course and scope of his employment for

Pineville, Mr. Scott slipped while climbing the steps to a dump truck. He had been

holding onto a hand rail when his foot slipped. He immediately felt a pull and pain

in his side and back. No one saw Mr. Scott fall. Thinking it to be a minor injury, he

finished his shift after briefly mentioning it to his co-worker, Quinten Clayton. Mr.

Scott did not tell his supervisor or anyone else working for Pineville about the

accident, other than Mr. Clayton.

Mr. Scott awoke the next morning to worsened pain and numbness in his right

leg. He called his supervisor to tell him he could not work that day due to the injury.

Despite self treatment, the pain did not subside and Mr. Scott sought medical

treatment from Dr. Stephen Downs on January 9, 2007. He initially tried to use his

own insurance, but when he gave a medical history describing a work-related

accident, Dr. Downs’ office told him that approval would be needed from his

employer. When Dr. Downs’ office called Pineville for the alleged work-related

injury, it was the first the City had heard of the accident.

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Pineville’s human resources coordinator, Diane Ray, denied pre-approval for

treatment, as nothing was known concerning any accident, and ordered an

investigation into the incident. Statements were taken from both of Mr. Scott’s

supervisors, as well as Mr. Clayton and Timmy Clinton, another co-worker riding

with Mr. Scott part of the day the accident occurred. The statements were all one

sentence long and, including Mr. Clayton’s, all said essentially the same thing, that

the signee had no knowledge of any accident concerning Mr. Scott. Mr. Scott was

never contacted by Pineville nor its workers’ compensation insurer, and his claim was

denied based on the statements alone. Furthermore, either incidentally or

coincidentally, because he was absent without calling in the following three work

days after the January 4, Mr. Scott was terminated under Pineville’s no-show policy

the same day that the City learned of the accident and medical claim from Dr. Downs’

office.

Dr. Downs treated Mr. Scott conservatively for the pain with medication and

physical therapy until his insurance declared the matter a workers’ compensation

issue and stopped paying. At that time, Mr. Scott was forced into the charity hospital

system, where he had an MRI performed that showed a bulging disc at his L5-S1

vertebrae.

Mr. Scott filed the present claim when Pineville denied his demand for

workers’ compensation benefits. Again, the claim was denied by Pineville based on

the employees’ statements noted above, without any attempt to contact Mr. Scott or

any of his physicians. After taking the testimony of Mr. Scott, his wife and co-

workers, and examining the medical records in this case, the workers’ compensation

judge found that Mr. Scott had proved a work-related accident and resultant

disability. The workers’ compensation judge awarded Mr. Scott past and future

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medical treatment, TTDs from the date of his accident, $2,000 in penalties for the

non-payment of medical benefits, $2,000 for the non-payment of TTDs, and $4,500

in attorney fees. From this decision, Pineville appeals.

Pineville asserts six assignments of error on appeal. It claims that the workers’

compensation judge erred in finding that Mr. Scott proved an accident; that Mr. Scott

proved an injury; that any injury proved was disabling; that any disability was caused

by the accident; that the workers’ compensation judge erred in awarding penalties;

and that the workers’ compensation judge erred in ordering it to pay all prior medical

expenses without the benefit of the workers’ compensation fee schedule. Because the

first four assignments of error are so closely related and fall under the same standard

of review, we shall address them together.

This court, in Monceaux v. R & R Construction, Inc., 05-533 (La.App. 3 Cir.

12/30/05), 919 So.2d 795, writs denied, 06-585 (La.5/5/06), 927 So.2d 325, 06-636

(La.5/5/06), 927 So.2d 317, addressed both the standard of review and a claimant’s

burden of proof in workers’ compensation cases involving unwitnessed accidents.

In that case, we said:

In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04),
879 So.2d 112, 117, the supreme court discussed the standard of review
in workers’ compensation cases:

In worker’s compensation cases, the appropriate
standard of review to be applied by the appellate court to
the OWC’s findings of fact is the “manifest error-clearly
wrong” standard. Brown v. Coastal Construction &
Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704
So.2d 8, 10, (citing Alexander v. Pellerin Marble &
Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706,
710). Accordingly, the findings of the OWC will not be
set aside by a reviewing court unless they are found to be
clearly wrong in light of the record viewed in its entirety.
Alexander, 630 So.2d at 710. Where there is conflict in the
testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review, even though the appellate court may feel that its

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own evaluations and inferences are as reasonable.
Robinson v. North American Salt Co., 02-1869 (La.App. 1
Cir.2003), 865 So.2d 98, 105. The court of appeal may not
reverse the findings of the lower court even when
convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently. Robinson,
865 So.2d at 105. The determination of whether injury
occurred in the course and scope of employment is a mixed
question of law and fact. Winkler v. Wadleigh Offshore,
Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316
(citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4
Cir. 5/12/99), 734 So.2d 874).

Recently, this court addressed a claimant’s burden in proving the
he/she suffered a work-related accident:

In order to recover workers’ compensation benefits,
an injured employee must prove by a preponderance of the
evidence that he suffered a “personal injury by accident
arising out of and in the course of his employment.”
La.R.S. 23:1031(A). An “accident” is defined as an
“unexpected or unforseen 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.” La.R.S.
23:1021(1).

The Louisiana Supreme Court, in Bruno v. Harbert International
Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will
satisfy an employee’s burden in proving a work-related injury:

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 this testimony.”

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West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381,
1383 (La.1987). The 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.
Gonzales v. Babco Farm, Inc., 535 o.2d 822, 824 (La.App. 2d Cir.), writ
denied, 536 So.2d 1200 (La.1988) (collecting cases).

Id. at 798-800 (alteration in original).

In this case, Mr. Scott’s account of the accident and its results are

uncontradicted. The fact that he told Mr. Clayton his back was hurt bolsters his claim

and was supported by Mr. Clayton’s direct testimony. Furthermore, Timmy Clinton

testified that Mr. Clayton relayed to him the day following the accident that Mr. Scott

was absent because he hurt his back. Mr. Scott’s medical records show that he was

consistent in not only claiming that the accident was work-related, but in how the

accident occurred. Pineville presented no evidence to counteract this other than one-

sentence statements from three men who were not with Mr. Scott at the time of the

accident and that of Mr. Clayton, who explained that he felt the statement that he gave

was factually accurate when given only because he did not see the accident occur.

There is simply no evidence that discredits Mr. Scott’s version of the incident, and

his testimony is clearly corroborated by the circumstances following the alleged

incident.

Likewise, the record is clear that Mr. Scott sustained a bulged disc in his L5-S1

vertebral region. The record shows that Mr. Scott had never had back pain before the

accident. And through the testimonies of Mr. Scott and his wife, as well as the

affidavit of his treating physician, the record is clear that Mr. Scott has suffered a

disability as a result of the injury. Dr. Downs states that Mr. Scott is totally disabled

and that the disability is a result of his “work related injury.” All of the factual

evidence concerning the accident, injury, causation, and disability are all undisputed

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by Pineville. It placed none of its own medical evidence whatsoever in the record to

dispute the injury or disability and, again, offered simply the four statements which

it somehow believed disproved the accident and negated the mounds of evidence

against them. It is clear from the record before us that the workers’ compensation

judge has not committed manifest error in finding that Mr. Scott proved the accident,

injury, causation, and disability. These assignments of error are devoid of merit.

Pineville next claims that the workers’ compensation judge erred in awarding

penalties against the City. The purpose of imposition of penalties and attorney’s fees

is to discourage indifference and undesirable conduct by employers and insurers.

Williams v. Rush Masonry, Inc., 98-2271 (La. 6/29/99), 737 So.2d 41. This court, in

Johnson v. Transamerica Waste Co., 99-190, pp. 9-10 (La.App. 3 Cir. 6/2/99), 741

So.2d 764, 770, stated the following:

In order to avoid the imposition of penalties, an employer must
reasonably controvert the workers’ compensation claimant’s right to
benefits. La.R.S. 23:1201(F). The test to determine if the employer has
fulfilled its duty is whether the employer or his insurer had sufficient
factual and medical information to reasonably counter the factual and
medical information presented by the claimant. Brown v. Texas-La.
Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885; Thibodeaux v. L.S.
Womack, Inc., 94-1375 (La.App. 3 Cir. 4/5/95), 653 So.2d 123.

The determination of whether an employer or insurer should be cast with penalties

and attorney’s fees in a workers’ compensation action is essentially a question of fact

subject to the manifest error or clearly wrong standard of review. Authement v.

Shappert Eng’g, 02-1631 (La. 2/25/03), 840 So.2d 1181.

In this case, it is clear that Pineville did not have sufficient factual or medical

information to deny Mr. Scott’s claims. In fact, there was no information whatsoever

to counter the evidence offered by Mr. Scott. The adjuster for Pineville’s workers’

compensation insurance carrier testified that the claim was denied solely on the four

vacuous statements mentioned above, which simply stated that no one had any

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knowledge of the accident. No statement ever gave any indication that the accident

did not, in fact, occur. No one from Pineville or its insurer ever tried to contact Mr.

Scott or any of his physicians, nor did it ever attempt to have any of its own doctors

examine him. Simply put, Pineville executed a woefully inadequate investigation of

Mr. Scott’s claimed accident, then simply washed its hands of him. There is no error

in the workers’ compensation judge’s award of penalties in this case.

Pineville finally claims that the workers’ compensation judge erred in requiring

it to pay Mr. Scott’s past medical expenses at the rate at which they were charged,

without the benefit of the workers’ compensation fee schedule. Louisiana Revised

Statutes 23:1205(C)(2) requires a responsible worker’s compensation payor to

reimburse any health insurer “one hundred percent of the benefits it paid” in

connection with a workers’ compensation claim. Mr. Scott testified that he chose Dr.

Downs because he took the Blue Cross insurance that he had and that he continued

treating with him until the time that Blue Cross stopped paying for his treatment. Yet

again, this evidence is uncontradicted by Pineville. Accordingly, Blue Cross would

be entitled to reimbursement for any amounts paid for Mr. Scott’s treatment without

reference to the workers’ compensation fee schedule. There is no merit in this

assignment of error.

Finally, counsel for Mr. Scott seeks additional attorney fees for work done on

this appeal. However, because he did not answer Pineville’s appeal, he cannot

receive additional attorney fees.

For the above reasons, the decision of the workers’ compensation judge is

hereby affirmed. Costs of this appeal are assessed against the City of Pineville, in the

amount of $ 1,575.

AFFIRMED.

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