Jerry Anderson v. Best Western Richmond Suites of Shreveport

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-78

JERRY ANDERSON

VERSUS

BEST WESTERN SUITES HOTELS

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 3
PARISH OF CALCASIEU, NO. 06-07529
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, and Billy Howard Ezell,
Judges.

AFFIRMED.

James E. Burks
Attorney at Law
P. O. Box 16067
Lake Charles, LA 70601-6067
(337) 474-6106
Counsel for Plaintiff/Appellee:
Jerry Anderson

Mark Ackal
Mark Ackal & Associates
P. O. Box 52045
Lafayette, LA 70505-2045
(337) 237-5500
Counsel for Defendant/Appellant:
Best Western Suites Hotels

DECUIR, Judge.

Jerry Anderson filed this workers’ compensation claim against his employer,

S & R Hotels L.L.C. d/b/a Best Western Suites Hotels, after he was hit by the door

of a freight elevator and injured his back. After trial on the merits, the workers’

compensation judge rendered judgment in favor of Anderson, awarding indemnity

payments, penalties, and attorney fees, and further ordering that Anderson be allowed

to see his choice of physician. The employer appeals and, for the following reasons,

we affirm.

The factual and procedural background of this case is best explained in the

words of the workers’ compensation judge:

Mr. Anderson appears in court today with a paucity of medical
support for his claim. The insurance company’s reasons for denying
treatment are pretty much left to be inferred by the court because the
adjuster who made these decisions is not here to explain them. The
witnesses to the accident are not here. So after listening intently for
about three hours of testimony, I have concluded this is what happened:
There’s not much to dispute that Mr. Anderson was involved in an
accident at the elevator at work. The defendant really doesn’t deny that
flatly. There’s no doubt that he was in the course and scope of his duties
at the time of whatever happened at work happened. The issue here is
did the insurance company have reasonable grounds to deny medical
treatment by his choice of physician? Mr. Anderson has an imperfect
past. He has a litigious enough background to lift any reasonable
gentleman’s eyebrow. But flatly denying medical treatment requires a
lot more than that, a whole lot more. When an employee gets jammed
between an elevator gate and the door when the elevator is improperly
moved by a fellow employee, the fact that the injured worker who is
struck in this situation has a history of back problem is of little moment.
He was not, I grant you, a picture of spinal health when all this occurred.
He probably has never been the employee of the month in any of the few
jobs that he seems to have held. However, he now says that the
symptoms he now suffers are different and worse than his previous back
problems. That is his testimony. [Defense counsel] is right: It stands
without much medical confirmation, but he cannot afford to see a doctor
and the insurance company won’t send him to see his choice of
physician. It’s clear to me that his choice of physician is decidedly not
the industry clinic he was sent to for some reason, [or] the orthopedic
surgeons, these folks referred him to. No one has offered any credible
testimony, in fact no testimony at all, that he was not injured as he
described in his testimony. He seems to have been working albeit

infrequently, slowly, and in pain, apparently before the accident; no one
would much dispute that. I can’t see where the insurance company did
anything more than leap to a very convenient conclusion based on this
man’s history. And, as I say, his history could raise concern. But
concern should prompt a thorough investigation, not a termination of
benefits. It appears to me here that most of the investigation, and it was
well done, was conducted by [defense counsel] after the fact, and
although I admire his efforts here, that’s not the way it’s supposed to
work. The insurance investigator is supposed to do a little more than
they did in this case. The Court finds that Mr. Anderson was injured in
the course and scope of his employment and that the insurance company
will reinstate his indemnity payments retroactive to the termination date
until further order of the court. He will be afforded the opportunity to
see a physician of his choice for evaluation. A $2,000 penalty is
assessed for improper termination of benefits and a $2,000 penalty is
assessed for refusal to provide a choice of physician. Attorney’s fees are
set at $8,000.

The record shows that the employer provided immediate medical attention to

Anderson, which continued for nearly a year, and paid weekly indemnity benefits to

him for approximately six months. When benefits were terminated, the employer

neglected to respond to Anderson’s requests for further information and for approval

to see the physician of his choice, and this disputed claim was initiated.

On appeal, the employer contests the factual findings that Anderson was

injured in a work-related accident and that he is entitled to indemnity benefits,

penalties, and attorney fees. Our review of the record, however, reveals no error in

the conclusions reached by the workers’ compensation judge.

The standard of review in workers’ compensation cases is the manifest error

or clearly wrong standard. Braxton v. Ryan’s Family Steakhouse, 04-148 (La.App.

3 Cir. 6/2/04), 878 So.2d 731. The appellate court must determine not whether the

fact finder was right or wrong, but whether the factual conclusions were reasonable

in light of the entire record. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Where there is a conflict in the testimony, reasonable evaluations
of credibility and reasonable inferences of fact should not be disturbed

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upon review even though the appellate court may feel that its own
evaluations and inferences are more reasonable. Deference is due to the
factfinder’s determinations regarding the credibility of witnesses, “for
only the factfinder can be aware of the variations in demeanor and tone
of voice that bear so heavily on the listener’s understanding and belief
in what is said.” Rosell, 549 So.2d at 844.

Veazie v. Gilchrist Constr. Co., 04-118, p. 3 (La.App. 3 Cir. 6/2/04), 878 So.2d 742,

744-45, writ denied, 04-1692 (La. 10/8/04), 883 So.2d 1018 (citation omitted).

The claimant’s burden of proof in establishing the occurrence of a job-related

accident is preponderance of the evidence. Bruno v. Harbert Int’l, Inc., 593 So.2d

357 (La.1992). Considering the evidence in the record before us, the immediate

medical attention provided by the employer, and the undisputed continuing medical

complaints of the claimant, we find no error in the decision to allow Anderson to see

his choice of physician. Likewise, we find no manifest error in the award of benefits,

penalties, and attorney fees. We decline to award additional attorney fees for work

done on appeal, as Anderson neither appealed nor answered the appeal asking for

same.

The judgment appealed from is affirmed. Costs are assessed to the appellant.

AFFIRMED.

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