Dexter Mitchell v. Artcrete, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-492

DEXTER MITCHELL

VERSUS

ARTCRETE, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 07-03356
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Billy Howard Ezell, Judges.

AFFIRMED IN PART, AMENDED IN
PART, AND REVERSED IN PART.

George A. Flournoy
FLOURNOY & DOGGETT (APLC)
P. O. Box 1270
Alexandria, LA 71309
Telephone: (318) 487-9858
COUNSEL FOR:
Plaintiff/Appellant - Dexter Mitchell

James J. Hautot, Jr.
Jason E. Wilson
JUDICE & ADLEY
926 Coolidge Boulevard
Lafayette, LA 70505
Telephone: (337) 235-2405
COUNSEL FOR:
Defendant/Appellee - Artcrete, Inc.

THIBODEAUX, Chief Judge.

The plaintiff, Dexter Mitchell, appeals a judgment of the Office of

Workers’ Compensation (OWC) in favor of the defendant, Artcrete, Inc., (1) denying

Mitchell indemnity benefits for the period of July 16, 2007 through October 23, 2007;

(2) refusing to order that Artcrete pay medication expenses in the amount of $182.06

and indemnity benefits for the period of May 18, 2007 through May 25, 2007; (3)

refusing to acknowledge Artcrete’s stipulations regarding its duty to pay these

medication expenses as well as the indemnity benefits due for the week of May 18,

2007 through May 25, 2007; (4) denying Mitchell’s contention that Artcrete

unreasonably delayed the resumption of indemnity benefits after October 24, 2007;

and, (5) awarding Mitchell only $2,500 in attorney fees.

For the following reasons, we affirm the judgment with respect to

Mitchell’s benefit payments for the period from July 16, 2007 through October 23,

2007 and with respect to Artcrete’s entitlement to a credit for overpaid benefits.1 As

to the prescription benefits and as to the benefits paid for the week of May 18, 2007

through May 25, 2007, we reverse and award both penalties and attorney fees for

Artcrete’s failure to pay those benefits.

Evidence that on April 27, 2007, Mitchell sustained injuries while in the

course and scope of his employment is well-supported and is not in dispute. His

ability to fully return to work following those injuries and Artcrete’s timeliness in

payment of benefits and medication expenses to treat those injuries are in dispute,

however. We find that Mitchell was released for full duty by his physician on July

16, 2007, and, thus, was not entitled to benefits for the period of July 16, 2007

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The workers’ compensation judge (WCJ) awarded a credit in the amount of $120 to Artcrete
for monies earned by Mitchell at the Natchitoches Times. Moreover, the WCJ assessed a $2,000
penalty against Artcrete for failing to timely pay for Mitchell’s physical therapy treatment. These
findings are not in dispute, so they will not be addressed in detail here.

through October 23, 2007. Moreover, though Artcrete timely remitted payment for

some of Mitchell’s expenses and benefits, it did not do so for other expenses and

benefits. Thus, we find that Mitchell is entitled to an award of penalties in the

amount of $8,000 and attorney fees in the amount of $5,000 for work done at the trial

level in this case and an additional $3,000 for work done on this appeal.

I.

ISSUES

We must decide whether:

(1) the OWC manifestly erred in denying Mitchell
indemnity benefits for the period of July 16, 2007
through October 23, 2007;

(2 the OWC manifestly erred in refusing to order that
Artcrete pay medication expenses in the amount of
$182.06 and indemnity benefits for the period of
May 18, 2007 through May 25, 2007;

(3) the OWC manifestly erred in refusing to
acknowledge Artcrete’s stipulations regarding its
duty to pay said medication expenses as well as the
benefits due for the week of May 18, 2007 through
May 25, 2007;

(4) the OWC manifestly erred in finding that Artcrete
acted reasonably in delaying the resumption of
indemnity benefits after October 24, 2007; and,

(5) the OWC manifestly erred in awarding Mitchell only
$2,500 in attorney fees.

II.

FACTS AND PROCEDURAL HISTORY

Mitchell was employed by Artcrete, a concrete manufacturer, in

Natchitoches, Louisiana. On April 27, 2007, a pallet of concrete fell on Mitchell’s

right foot. Mitchell immediately reported the incident to his supervisor, and Mitchell

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was taken to a local hospital for evaluation. The next day, equipped with crutches,

Mitchell attempted to return to work at Artcrete, but the company told Mitchell that

it had no work suitable for him, given his limited mobility.

On May 7, 2007, Mitchell filed a claim for indemnity benefits with the

Office of Workers’ Compensation. At the time Mitchell filed his claim, no indemnity

benefits were due to him. Indeed, immediately following the accident, and for three

weeks thereafter, Artcrete continued to pay Mitchell’s full wages. Artcrete did not

pay Mitchell anything for the week of May 18, 2007 through May 25, 2007, but the

company began paying indemnity payments to Mitchell in the amount of $213.50 per

week beginning on May 25, 2007.2

On June 27, 2007, Dr. Stephen Cox, Mitchell’s primary care physician,

evaluated Mitchell and released him to full-duty work effective July 17, 2007. Dr.

Cox scheduled a six-week follow-up visit, but Mitchell did not return to Dr. Cox’s

office until October 24, 2007.

Because Mitchell was released to work by Dr. Cox, Artcrete

discontinued benefit payments on August 3, 2007. Following his release to work on

July 16, 2007, Mitchell secured temporary employment as a delivery person for the

Natchitoches Times. In Fall 2007, however, Mitchell experienced recurring pain in

his injured foot. On October 24, 2007, Dr. Cox reevaluated Mitchell and placed him

on restriction from all work. Mitchell’s counsel demanded that Artcrete promptly

resume payment of indemnity benefits, but Artcrete did not do so until December

2007.

At trial, the parties stipulated that the correct compensation rate for Mitchell was $213.50
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weekly, or $427 paid bi-weekly, as Mitchell received income from his employer on a bi-weekly
basis.

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III.

LAW AND DISCUSSION

Standard of Review

The supreme court articulated the standard of review in workers’

compensation cases 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. 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
own evaluations and inferences are as reasonable.
Robinson v. North American Salt Co., 02-1869 (La.App.
1 Cir. [6/27/03]), 865 So.2d 98, 105.

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

Indemnity Benefits for July 16, 2007 through October 23, 2007

Mitchell contends that the WCJ erred in refusing to award payment and

penalties for Artcrete’s failure to provide indemnity benefits for the period of July 16,

2007 through October 23, 2007. Dr. Cox evaluated Mitchell on June 26, 2007, and

concluded that Mitchell could return to full duty at work. Specifically, Dr. Cox

stated, “At this time, we are going to return Mr. Mitchell back to his work on

07/16/2007 . . . . I will return him to full duty. If he has any problems after that, we

will reevaluate him but he should be fully healed and be able to return to full

activity.”

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Mitchell attempted to find work following Dr. Cox’s release, and,

indeed, Mitchell worked delivering papers for the Natchitoches Times in September

2007. On October 24, 2007, Dr. Cox again evaluated Mitchell, and recommended

that Mitchell rest his foot. Dr. Cox restricted Mitchell from all work.

Mitchell asserts that he continued to suffer pain and discomfort in his

foot after Dr. Cox released him to full duty in July 2007. He argues that he was not

“cured” of his injuries and that Dr. Cox’s work release was “conditional.” Moreover,

Mitchell contends that he should not be penalized for Dr. Cox’s busy schedule and

for Mitchell’s inability to schedule an appointment with Dr. Cox before October 24,

2007.

The WCJ disagreed. The WCJ noted that Dr. Cox’s medical release was

a full-duty release to work and that Mitchell did, indeed, attempt to look for work

during that time.

Appellate courts should not disturb findings of fact absent manifest error.

Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In Arceneaux, the supreme court

spelled out a two part test for review of facts:

(1) The appellate court must find from the record that there
is a reasonable factual basis for the findings, and

(2) The appellate court must further determine that the
record establishes that the findings are not clearly wrong.

In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), the supreme court cited

Arceneaux, then further stated:

[I]f an appellate court concludes that the trial court’s
factual findings are clearly wrong, the mere fact that some
record evidence appears which would furnish a reasonable
factual basis for the contested findings does not require
affirmance. Davis v. Owen, 368 So.2d 1052, 1056
(La.1979). Although appellate courts must accord great
weight to the factual findings of the trial judge, these same
courts have a duty to determine if the fact finder was

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justified in his conclusions. See, e.g., Parker v. Rhodes,
260 So.2d 706, 717 (La.App. 2 Cir. 1972). An appellate
court is not required, because of the foregoing principles of
appellate review, to affirm the trier of fact’s refusal to
accept as credible uncontradicted testimony or greatly
preponderant objectively-corroborated testimony where the
record indicates no sound reason for its rejection and where
the factual finding itself has been reached by overlooking
applicable legal principles. West v. Bayou Vista Manor,
Inc., 371 So.2d 1146, 1150 (La.1979).

Here, we consider not only the medical evidence that clearly supports Dr.

Cox’s unconditional release of Mitchell to work on July 16, 2007, but we also

consider the WCJ’s interpretation of the facts. The WCJ noted that Mitchell failed

to return to Dr. Cox’s office until October 24, 2007, despite Dr. Cox’s

recommendation that Mitchell return to Dr. Cox for reevaluation on or about August

8, 2007. The WCJ also noted that Mitchell looked for, and found, other employment

during this time period.

Nothing in the record contradicts Dr. Cox’s orders that Mitchell be

released to “full duty,” and nothing in the record shows that Mitchell could not have

scheduled an appointment with Dr. Cox prior to October 24, 2007, if the need to do

so had arisen. Applying the standard set for us in Arceneaux and further articulated

in Mart, we find that the WCJ reasonably assessed the body of facts, and no manifest

error occurred. Thus, we affirm the judgment that Mitchell is not entitled to the

receipt of indemnity benefits from July 16, 2007 through October 23, 2007.

Pharmaceutical Expenses

Mitchell contends that the WCJ erred in failing to require Artcrete to pay

$182.06 in pharmaceutical expenses Mitchell incurred as a result of his injury.

Mitchell submitted the pharmaceutical receipts to Artcrete for payment. Artcrete

stipulated at trial that it had not yet paid the pharmaceutical expenses and that it was

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required to pay them. Thus, at trial, Mitchell did not present evidence relating to the

pharmaceutical expenses.

In his ruling, however, the WCJ found that Artcrete properly reimbursed

Mitchell for the pharmaceutical expenses, and the WCJ did not assess penalties and

attorney fees for that claim. On appeal, Mitchell argues that at trial Artcrete judicially

confessed to owing the pharmaceutical expenses and that the WCJ was erroneous in

ignoring that confession.

We agree. Louisiana Civil Code Article 1853 defines a judicial

confession as “a declaration made by a party in a judicial proceeding.” Louisiana

Civil Code Article 1853 further provides that a judicial confession “constitutes full

proof against the party who made it” and that it “is indivisible and it may be revoked

only on the ground of error of fact.” Once a judicial confession is made by a party,

it “has the effect of waiving evidence as to the subject of the admission-of

withdrawing the subject matter of the confession from issue.” Cichirillo v. Avondale

Indus., Inc., 04-2894, p. 6 (La. 11/29/05), 917 So.2d 424, 429 (citing Cheatham v.

City of New Orleans, 378 So.2d 369 (La.1979); Sutton’s Steel & Supply, Inc. v.

Bellsouth Mobility, Inc., 00-511 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, writ

denied, 01-152 (La. 3/16/01), 787 So.2d 316). A judicial confession by a party,

however, does not preclude that party from denying the correctness of the admission,

unless the party claiming the benefit from the admission has relied on the admission

to his prejudice. Crawford v. Deshotels, 359 So.2d 118 (La.1978).

As this court explained in Leday v. Safeway Ins. Co. of La., 04-610, pp.

5-6 (La.App. 3 Cir. 11/17/04), 888 So.2d 1084, 1088:

A judicial confession under La.Civ.Code art. 1853
constitutes incontrovertible evidence of a particular issue
and serves to waive the necessity of any further proof on
that issue. Ramelow v. Bd. of Trustees of the [Univ.] of

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Louisiana System, 03-1131 (La.App. 3 Cir. 3/31/04), 870
So.2d 415, writ denied, 04-1042 (La. 6/18/04), 888 So.2d
184; C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La.
12/3/03), 861 So.2d 156. In order for a party’s statement
to constitute a judicial confession, it must be an express
acknowledgment of an adverse fact. Jones v. Gillen, 564
So.2d 1274 (La.App. 5 Cir. 1990); Sanders v. Earnest,
34,656 (La.App. 2 Cir. 7/24/01), 793 So.2d 393; State v.
Lamb, 31,919 (La.App. 2 Cir. 5/7/99), 732 So.2d 1270.
Additionally, “the adverse party must have believed the
fact was no longer at issue or must have relied on it, to his
detriment.” Lamb, 732 So.2d at 1272; Alexis v. [Metro.]
Life [Ins.] Co., 604 So.2d 581 (La.1992); Jefferson Parish
v. [Fid.] & Deposit Co., 95-951 (La.App. 5 Cir. 4/30/96),
673 So.2d 1238; Jones, 564 So.2d 1274.

Here, counsel for Artcrete plainly stated at trial that Artcrete had not yet

paid the pharmaceutical expenses, and, thus, was required to pay them. Given the

stipulation provided by Artcrete, Mitchell’s counsel did not address the issue of

pharmaceutical expenses and did not offer evidence regarding these expenses.

Mitchell’s counsel clearly relied on the stipulation made by Artcrete’s counsel.

Artcrete’s claims that the stipulation was based on an error of fact do not subvert

Mitchell’s reliance on the stipulation.

Since Mitchell relied on Artcrete’s judicial confession and consequently

did not present evidence of the pharmaceutical expenses at trial, we consider the

evidence presented in Mitchell’s motion for a new trial. There, Mitchell refutes

Artcrete’s testimony that it paid the pharmaceutical expenses. Specifically, Mitchell

claims that he never received reimbursement for such expenses. Indeed, no evidence

in the record demonstrates that Mitchell received the payments Artcrete claims to

have made. No evidence exists that Artcrete ever mailed the payments or that

Mitchell ever cashed checks supposedly sent by Artcrete.

Thus, having considered Mitchell’s claims, we find that the WCJ erred

in refusing to treat Artcrete’s stipulation regarding the pharmaceutical expenses as a

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judicial confession. We reverse the WCJ’s decision on this issue and find that

Artcrete owes Mitchell $182.06 in pharmaceutical expenses. We also assess a

penalty of $8,000.00 ($2,000.00 for each of the four expenses submitted but not paid)

to Artcrete for failing to timely pay these expenses.

Payment of Indemnity Benefits for May 18, 2007 through May 25, 2007

Mitchell contends that Artcrete’s stipulation at trial that it owed the

benefits to Mitchell requires that Artcrete pay Mitchell the $213.50 in indemnity

benefits for that week and that Artcrete should be penalized for not timely paying the

benefits. Artcrete claims that since it overpaid benefits to Mitchell prior to the week

of May 18, 2007 through May 25, 2007, it is not required to pay him an additional

sum for that week.

The WCJ agreed with Artcrete and concluded that Artcrete’s

overpayments were enough to compensate Mitchell for the week of May 18, 2007

through May 25, 2007. We disagree with the WCJ’s conclusion. Louisiana Revised

Statutes 23:1206 provides as follows: “Any voluntary payment or unearned wages

paid by the employer or insurer either in money or otherwise, to the employee or

dependent, and accepted by the employee, [which] were not due and payable when

made, may be deducted from the payments to be made as compensation.”

This statute entitles an employer to a credit for previous overpayments

from future compensation, which may be due. Monceaux v. R&R Const., Inc., 05-533

(La. App. 3 Cir. 12/30/05), 919 So.2d 795 (emphasis added) (citations omitted).

Here, we do not dispute Artcrete’s contention that it is entitled to credit

for its overpayments to Mitchell. The credit, however, must be applied to future

compensation owed to Mitchell, not, as Artcrete now argues, to compensation that

was currently due. Artcrete’s counsel even acknowledged this fact at trial by stating,

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While I realize that the indemnity that was paid
following that week which commenced on 5/26/07, he was
paid significantly more than he was owed at that time. The
defendants did not necessarily take that to be interpreted as
a credit on what was owed the prior week, but as I did
outline in my pretrial statement, since claimant is and does
continue to receive ongoing indemnity benefits, the
defendant reserves its right to take a partial credit or a
whole credit, but to reduce Mr. Mitchell’s benefits in a
reasonable fashion to recapture the overpayment at some
point in the future. But to pay the first week, you know,
we will stipulate that we will pay that in the amount of
Two Hundred and Thirteen Dollars and Fifty Cents
($213.50).

We find that the WCJ erred by not awarding Mitchell indemnity benefits

for the week of May 18, 2007 through May 25, 2007. Thus, we find that Artcrete

must compensate Mitchell $213.50 for that week, and we assess a penalty of $2,000

to Artcrete for its failure to timely pay such amount.

Delay in the Resumption of Benefits

Mitchell argues that the WCJ erred in failing to award penalties and

attorney fees for Artcrete’s delay in resumption of benefits following Mitchell’s

second work restriction which began on October 24, 2007. On October 24, 2007,

Mitchell saw Dr. Cox and complained of disabling pain in his injured foot. Dr. Cox

restricted Mitchell from all work. Following Dr. Cox’s recommendation, Mitchell’s

counsel sent several pieces of correspondence to Artcrete’s counsel demanding

resumption of indemnity benefits. Artcrete, however, did not resume paying Mitchell

indemnity benefits until December 20, 2007.

As we previously discussed, it is well-settled that La.R.S. 23:1206

entitles an employer to a credit for previous overpayments from future compensation

which may be due. Monceaux, 919 So.2d 795. Further, this statute applies even if

the overpayment is due to the employer’s error in calculating benefits. Ferrand v.

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D.H.L. Co., 614 So.2d 350 (La.App. 4 Cir. 1993). We have also held that

discontinuation of benefits until the overpayment is recouped is permissible and

proper under this same statute. See Breaux v. Petro Drive, Inc., 534 So.2d 48

(La.App. 3 Cir. 1988).

It is undisputed that Mitchell is entitled to weekly benefits of $213.50.

For three weeks following Mitchell’s April 28, 2007 injury, Artcrete continued to pay

Mitchell his full wages, $320 per week. After overlooking the week of May 18, 2007

through May 25, 2007, Artcrete paid Mitchell indemnity benefits from May 26, 2007

through August 3, 2007 at the incorrect rate of $790 every two weeks for a total

payment of $4,062 for that period of time. Thus, Artcrete paid a total of $5,022 to

Mitchell from April 29, 2007 through August 3, 2007.

Mitchell was entitled to benefits from April 28, 2007, the date after the

injury, through July 16, 2007, the date Dr. Cox released him to full duty. The total

amount of benefits owed to Mitchell for that time period was $2,438.17. Artcrete,

therefore, overpaid Mitchell by $2,583.83 and was entitled to a credit through mid-

January 2008.

Because Artcrete accumulated a credit of indemnity payments, it was

permissible and reasonable for the company to suspend payments until the

overpayment was satisfied. Thus, we find no error in the WCJ’s refusal to award

penalties and attorney fees for Artcrete’s suspension of indemnity payments during

that time period.

Attorney Fees

Mitchell contends that the WCJ erred in awarding only $2,500 in

attorney fees and requests that we assess additional attorney fees for services rendered

at the trial level and in association with this appeal. According to Naquin v.

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Uniroyal, Inc., 405 So.2d 525 (La.1981), factors used in determining attorney fees in

workers’ compensation cases are (I) the degree of skill and ability exercised, (ii) the

amount of the claim, and (iii) the amount of time devoted to the case. Considering

the efforts of Mitchell’s attorney, we find error in the WCJ’s $2,500 award for

attorney fees. It is clear from the record that Mitchell’s attorney spent a considerable

amount of time pursuing his client’s case and vigorously enforcing Mitchell’s rights

at the trial level. Moreover, counsel’s efforts on appeal resulted in the imposition of

additional penalties against Artcrete. Finally, we recognize that the workers’

compensation act is social legislation. To effectuate the salutary purposes behind the

workers’ compensation framework and to encourage attorneys to represent injured

workers in workers’ compensation cases, attorney fees should be liberally granted.

In Jones v. Universal Fabricators, 99-1370 pp. 10-11 (La.App. 3 Cir.

2/9/00), 758 So.2d 856, 862-63, writ denied, 00-0742 (La. 5/12/00), 762 So.2d 13,

this court noted:

We emphasize that adequate attorney’s fees in
workers’ compensation cases is the basis for an injured
employee obtaining effective counsel. La.R.S. 23:1221,
which authorizes attorney’s fees, encourages the retention
of effective counsel by an employee who is injured,
unemployed and unable to pay for capable representation.

It is evident that an employee in workers’
compensation cases by definition is placed in a
disadvantageous position. The employee is injured,
unemployed and often totally lacking in financial
resources. In contrast, the employer has the financial
means to obtain attorneys to prepare and argue its case.
The primary purpose of workers’ compensation is to
protect injured employees from impoverishment. If an
employee is arbitrarily deprived of benefits, the attorney
who litigates on his behalf and is successful at showing
arbitrary and capricious conduct on the part of the
employer, has aided not only his client but also the
administration of the workers’ compensation system. This
work is very important as it helps discourage others who
might seek to further their own economic fortune at the

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expense of persons injured in their employ. Considering
these goals of workers’ compensation, we find that an
increase in attorney’s fees is warranted.

For the efforts by Mitchell’s attorney, we increase the award to $5,000

for the work done at the trial level and an additional $3,000 for the work done on

appeal.

IV.

CONCLUSION

Based upon the foregoing, we reverse the portion of the judgment of the

OWC denying payment of Mitchell’s pharmaceutical expenses in the amount of

$182.06, and we assess a penalty of $8,000 against Artcrete for the non-payment of

those expenses. We also reverse the portion of the judgment denying payment of

indemnity benefits for the week of May 18, 2007 through May 25, 2007, and we order

Artcrete to pay $213.50 plus legal interest to Mitchell for that week. We also assess

a penalty of $2,000 against Artcrete for failure to timely pay such amount. Because

the WCJ previously assessed a penalty of $2,000 against Artcrete for failing to timely

pay Mitchell’s physical therapy expenses and because La.R.S. 23:1201 limits

penalties against employers to $8,000, we hold that Artcrete must pay a maximum of

$8,000 in penalties to Mitchell. Finally, we increase the award of attorney fees to

award $5,000 to Mitchell’s counsel for the work done at the trial level and an

additional $3,000 for the work done on appeal.

All costs are assessed to Artcrete, Inc.

AFFIRMED IN PART, AMENDED IN PART, AND REVERSED

IN PART.

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