Albert Journet, Jr. v. Greene's Energy Group

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-347

ALBERT JOURNET, JR.

VERSUS

GREENE’S ENERGY GROUP AND LOUISIANA
WORKERS’ COMPENSATION CORPORATION

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION
PARISH OF LAFAYETTE, NO. 07-04005, DIST. 04
SHARON M. MORROW, WORKERS’ COMPENSATION JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.

AFFIRMED.

Will H. Green
Johnson, Stiltner & Rahman
2237 S. Acadian Thruway
Post Office Box 98001
Baton Rouge, Louisiana 70898-8001
(225) 231-0522
COUNSEL FOR DEFENDANTS/APPELLANTS:
Greene’s Energy Group and
Louisiana Workers’ Compensation Corporation

Christ Beaner
Alex & Associates, Inc.
227 Rees Street
Post Office Box 126
Breaux Bridge, Louisiana 70517
(337) 332-1180
COUNSEL FOR PLAINTIFF/APPELLEE:
Albert Journet, Jr.

GENOVESE, Judge.

In this workers’ compensation case, Defendants, Greene’s Energy Group

(GEG) and its insurer, Louisiana Workers’ Compensation Corporation (LWCC), are

appealing the September 24, 2008 judgment of the Workers’ Compensation Judge

(WCJ) awarding Plaintiff, Albert Journet, Jr., temporary total disability (TTD)

benefits and assessing them with penalties and attorney fees. For the following

reasons, we affirm the judgment of the WCJ.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Journet sustained an on-the-job knee injury on May 23, 2006, while

working for GEG near New Orleans, Louisiana. The next day, Mr. Journet sought

treatment at University Medical Center in Lafayette, Louisiana. On June 12, 2006,

Mr. Journet filed an “Employers First Report of Injury or Illness” officially reporting

his accident to GEG.

On May 23, 2007, Mr. Journet filed a Disputed Claim for Compensation,

commonly referred to as a 1008, asserting “[n]o wage benefits have been paid” and

“[n]o medical treatment has been authorized[.]” An Answer and General Denial was

filed by GEG on July 2, 2007.

This matter went to trial on July 29, 2008. Counsel for GEG stipulated as to

both the occurrence of Mr. Journet’s accident as well as to the amount of Mr.

Journet’s average weekly wage and compensation rate.

In her oral reasons for judgment, the WCJ ruled in favor of Mr. Journet

declaring, in relevant part:

Medical records do show consistent with Mr. and Mrs. Journet’s
testimony that on the 24th, they went to UMC; the 25th Christus
Spohn[]. And there was a disability slip given at Christus Spohn, “Off
of work for three days. Recheck by family or company doctor or

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preferred doctor, prior to return recommended.” Also there was [sic]
objective indications -- objective signs of injury, being the right knee
contusion that was noted in the records. The complaints arose
immediately after the accident and have continued during the course of
the treatment. That’s documented in the medical records and through
date from the testimony of Mr. and Mrs. Journet.

The MRI taken or performed a year later, showed fluid on the
knee, degeneration or strain at the ACL, possibly a partial tear and then
some problems with chondramalacia [sic]. Again, objective findings.
Mr. Journet testified there was no intervening incident.

Given the occurrence of the accident, the immediate complaints,
the MRI results a year later with no intervening event, it appears to be
pretty clear that there were objective signs of injury. There was an
injury to the knee that was caused by the accident. He was taken off
work. Recommended return visit to the doctor before returning to work.
His medical bills were not picked up. I’m still not sure why, but
certainly I am not going to penalize him for failing to get a clearer work
picture.

The WCJ awarded Mr. Journet workers’ compensation benefits of $426.42 per week

from the date of the accident until further orders of the court, all reasonable and

necessary medical expenses, $4,000.00 in penalties, and $7,000.00 in attorney fees.

A judgment to this effect was signed on September 24, 2008. Defendants, GEG and

LWCC, have appealed this judgment.

ASSIGNMENTS OF ERROR

Defendants assert that the WCJ erred: (1) “by allowing uncertified medical

records into evidence and relying on them as prima facie evidence[;]” (2) “in

awarding temporary, total disability benefits to [Mr. Journet;] and (3) “in awarding

[Mr. Journet] penalties and attorney[] fees[.]”

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STANDARD OF REVIEW

Appellate review of workers’ compensation cases was set forth by our supreme

court as follows:

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. 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. 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 own
evaluations and inferences are as reasonable. 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.

Dean v. Southmark Const., 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117 (citations

omitted).

Medical Records

In brief, Defendants allege that “[a]t trial, the WCJ overruled an objection by

Appellant to Appellee’s introduction into evidence of uncertified medical records

from Christus Spohn and Dr. Donald Mulder (Exhibit B, C). These uncertified

records were relied heavily upon by the WCJ in her ruling.” Defendants contend that

without Exhibits B and C, there is no proof of Mr. Journet’s disability in the record.

In brief, Mr. Journet contends that GEG “did not object specially [sic] to

Exhibits B and C which comprise Christus Spohn and Dr. Donald L. Mulder,

respectively, which is the basis for [Defendants’] appeal herein.” Further, Mr.

Journet argues that the provisions of La.R.S. 23:1317 grant the WCJ great discretion

to admit evidence, particularly when said evidence is corroborated by testimony.

From our review of the record, it is clear that counsel for GEG and LWCC is

mistaken in his contention that he objected to the introduction of Exhibit B, the

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medical records from Christus Spohn Hospital in Alice, Texas, as evidenced in the

transcript of the July 29, 2008 trial as follows:

JUDGE MORROW:

For the record, UMC records identified as Exhibit Plaintiff’s A.

Christus Spohn as Plaintiff’s Exhibit B. Dr. Mulder, Plaintiff’s
Exhibit C. First Report of Injury, 1007, Plaintiff[’s Exhibit] D.
Metropolitan Health Group, Plaintiff[’s] Exhibit E. RAMIK [sic]
Medical Imaging, identified -- it’s blank but I believe that is F. Is that
correct, Mr. Beaner?

MR. BEANER [Attorney for Mr. Journet]:

That’s correct, Your Honor.

JUDGE MORROW:

Thank you.

Mr. Travis, any objections?

MR. TRAVIS [Attorney for Defendants]:

No. The UMC records are certified, and Exhibit B is certified.
So I can’t object to those. Well, RAMIK [sic], also.

Exhibit E, I’m not sure how that’s marked. I’ll object to the
uncertified records.

JUDGE MORROW:

Well, considering that your client has been sitting doing nothing
for two years on this case, I’m not going to sustain that objection. So
overruled. Plaintiff’s Exhibit A through F are received.

Contrary to Defendants’ assertions on appeal, counsel for GEG and LWCC

accepted Exhibit B into evidence and only objected to Exhibit C generally. We find

that while Defendants’ nonspecific objection to “uncertified records” may apply to

Exhibit C,1 the record does not support Defendants’ assertions that the WCJ “relied

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Exhibit C consists of two pages. The first page is an invoice evidencing services rendered
by Dr. Mulder to Mr. Journet on June 7, 2006, and the second page is Dr. Mulder’s progress notes

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heavily upon” the content of Exhibit C. The WCJ’s oral reasons for judgment

indicate that she relied both upon the testimony of Mr. and Mrs. Journet as well as the

findings of an MRI performed on April 7, 2007. These findings are evidenced by

Exhibit F, the certified records from RAMIC Medical Imaging.

Louisiana Revised Statutes 23:1317(A) provides, in pertinent part:

The workers’ compensation judge shall not be bound by technical rules
of evidence or procedure other than as herein provided, but all findings
of fact must be based upon competent evidence and all compensation
payments provided for in this Chapter shall mean and be defined to be
for only such injuries as are proven by competent evidence, or for which
there are or have been objective conditions or symptoms proven, not
within the physical or mental control of the injured employee himself.
The workers’ compensation judge shall decide the merits of the
controversy as equitably, summarily, and simply as may be.

In Chaisson v. Cajun Bag & Supply Co., 97-1225, pp. 9-10 (La. 3/4/98), 708

So.2d 375, 381 (footnote omitted, emphasis in original), our supreme court discussed

the relaxed rules of evidence applicable to workers’ compensation proceedings as

follows:

[Louisiana Revised Statutes] 23:1317 mandates that the hearing
officer’s factual findings be based on “competent evidence.”
LA.REV.STAT. ANN. 23:1317(A) (West Supp.1997). This legislative
mandate is necessary because under the express language of LSA-RS
23:1317, worker[s’] compensation hearing officers are “not bound by
the technical rules of evidence.” Id. In other words, the hearing officer
has the discretion to admit evidence that would otherwise be
inadmissible under the Louisiana Code of Evidence. This more relaxed
standard for the admissibility of evidence is the general rule in
proceedings before administrative agencies. MCCORMICK ON
EVIDENCE § 352 (4th ed.1992). The legislative requirement that a
hearing officer’s factual findings be based upon competent evidence is
the safeguard that ensures that the factual findings are made on evidence
that has some degree of reliability and trustworthiness, notwithstanding
that the evidence might fall outside of the technical rules for
admissibility. Therefore, when a reviewing court evaluates the factual
findings of a hearing officer under the manifest error standard, it must
determine whether the factual findings are reasonable and supported by
competent evidence in the record. Although the Legislature has not

from said appointment.

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defined “competent evidence,” in order to give the relaxed evidentiary
standard in LSA-RS 23:1317 effect, it must not be defined so narrowly
as to mean only evidence that would fall within the parameters of the
Louisiana Code of Evidence. If the hearing officer’s factual findings are
reasonably supported by competent evidence, then the reviewing court
must affirm them.

In the instant case, we find that the record reveals that the contents of Exhibits

B and C were corroborated through the trial testimony of both Mr. and Mrs. Journet.

“Where there are two permissible views of the evidence, a factfinder’s choice

between them can never be manifestly erroneous or clearly wrong.” Jeanise v.

Cannon, 04-1049, pp. 5-6 (La.App. 3 Cir. 2/23/05), 895 So.2d 651, 659, writs denied,

05-785, 05-788 (La. 5/13/05), 902 So.2d 1021 (quoting Seal v. Gaylord Container

Corp., 97-688, pp. 4-5 (La. 12/2/97), 704 So.2d 1161, 1164).

Contrary to the arguments of GEG and LWCC, we find that the WCJ was

correct in her finding that there is sufficient proof of Mr. Journet’s disability in the

record of these proceedings. Therefore, we find no merit to Defendants’ first

assignment of error.

Temporary Total Disability Benefits

Louisiana Revised Statutes 23:1221(1)(c) sets forth the criteria for awarding

TTD benefits as follows, in pertinent part:

[C]ompensation for temporary total disability shall be awarded only if
the employee proves by clear and convincing evidence, unaided by any
presumption of disability, that the employee is physically unable to
engage in any employment or self-employment, regardless of the nature
or character of the employment or self-employment, including but not
limited to any and all odd-lot employment, sheltered employment, or
employment while working in any pain, notwithstanding the location or
availability of any such employment or self-employment.

GEG and LWCC argue that Mr. Journet failed to prove by clear and convincing

evidence that he is physically unable to engage in any type of employment or self-

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employment due to his injury. In brief, GEG and LWCC assert:

Even if the uncertified medical records should be allowed as evidence,
Appellee’s testimony at trial, coupled with the medical evidence
submitted to the judge, failed to prove by clear and convincing evidence
that he is physically unable to engage in any type of employment or self-
employment due to his injury.

Considering Defendants’ stipulation to the occurrence of Mr. Journet’s

accident on May 23, 2006, and our review of the testimony and the exhibits, we find

no error in the WCJ’s award of TTD benefits to Mr. Journet. Of particular note is

Exhibit E, the certified records from Metropolitan Health Group and its physician, Dr.

Keith R. Mack. These records evidence the fact that Mr. Journet saw Dr. Mack from

October 10, 2006, through April 3, 2007. During this period, Mr. Journet’s

complaints of knee pain continued.

At trial, GEG and LWCC did not offer any evidence to controvert Mr.

Journet’s claims of disability. Instead, it offered the testimony of its employees, Leon

Champion and Steve Langlinais, seemingly to contest the occurrence of an

accident—an issue already resolved by stipulation.

Mr. Champion, the Safety Representative for GEG, testified that the first time

that he heard of Mr. Journet’s accident was on June 12, 2006. According to Mr.

Champion, he saw Mr. Journet limping a few days after May 26, 2006, and when he

asked Mr. Journet what happened, Mr. Journet told him that he had hurt his knee

while helping someone move.

Mr. Langlinais, the Corporate Health, Safety, Environment Manager for GEG,

testified that he also found out about Mr. Journet’s accident on June 12, 2006. Mr.

Langlinais also gave confusing testimony about vaguely remembering the Corps of

Engineers in New Orleans calling to inquire about Mr. Journet after his accident.

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According to Mr. Langlinais, there was no report of accident or injury yet filed;

therefore, he could not tell them anything because he had no knowledge of an

accident having occurred.

Contrary to the arguments of GEG and LWCC, this testimony does not

reasonably controvert Mr. Journet’s evidence that he is physically unable to engage

in any type of employment due to his injury and, thus, is entitled to TTD benefits.

Therefore, we find no merit to Defendants’ second assignment of error.

Penalties and Attorney Fees

Louisiana Revised Statutes 23:1201 provides, in pertinent part:

E. Medical benefits payable under this Chapter shall be paid
within sixty days after the employer or insurer receives written notice
thereof.

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:

....

(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.

GEG and LWCC assert that the evidence does not support the WCJ’s awards

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of penalties and attorney fees. They rely upon Exhibit B, the medical records from

Mr. Journet’s visit to the emergency room at Christus Spohn Hospital in Alice, Texas,

on May 25, 2006. GEG and LWCC argue in brief:

In this case, Appellee was released to return to work on “Monday 29,
2006[]” (Exhibit “B”). This medical report was the only disability
status ever given to Appellee. None of Appellee’s treating physicians
disabled him, took him off work, or gave him any work restrictions.
LWCC made a good faith determination based on all available medical
evidence that claimant was not temporarily and totally disabled from
performing some type of work. As such, Appellant should not be
penalized for making a good faith determination based on just cause.

While we find it ironic that GEG and LWCC offer Exhibit B in support of their

argument, the same exhibit they contend was erroneously accepted into evidence by

the WCJ due to the exhibit’s lack of certification, we do not find error in the WCJ’s

assessment of penalties and attorney fees. We find Defendants’ argument that it

relied upon Exhibit B to justify denying payment of TTD benefits to Mr. Journet self-

serving. GEG and LWCC cannot have it both ways. They cannot argue that Exhibit

B is uncertified and, therefore, inadmissible and insufficient evidence to prove Mr.

Journet’s disability yet, on the other hand, argue that Exhibit B is admissible and

sufficient evidence for them to rely upon to deny Mr. Journet TTD benefits.

Therefore, we find no merit to Defendants’ third assignment of error.

Finally, in his brief, Mr. Journet asserts that he is “entitled to . . . an increase

in [the] award for attorney[] fees because of additional services rendered on this

appeal.” However, we have neither an appeal nor an answer to Defendants’ appeal

on behalf of Mr. Journet. Therefore, Mr. Journet’s request is not properly before this

court and, thus, is not considered. See La.Code Civ.P. art. 2133; Fluitt v. Christus

Health Cent. La., 05-945 (La.App. 3 Cir. 6/28/06), 935 So.2d 369, writ denied,

06-2302 (La. 12/8/06), 943 So. 2d 1094.

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DECREE

Accordingly, for the reasons stated above, the judgment of the workers’

compensation judge is affirmed. Costs of this appeal are assessed to

Appellants/Defendants, Greene’s Energy Group and Louisiana Workers’

Compensation Corporation.

AFFIRMED.

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