Robert J. Lejeune v. Bell Tower Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1222

ROBERT J. LEJEUNE

VERSUS

BELL TOWER CORPORATION
AND DALLAS NATIONAL INSURANCE COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 03
PARISH OF CALCASIEU, NO. 07-9745
HONORABLE SAM LOWERY
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Jimmie C. Peters and
J. David Painter, Judges.

AFFIRMED AS AMENDED.
Gregory P. Marceaux
Attorney at Law
2901 Hodges Street
Lake Charles, LA 70601
(337) 310-2233
COUNSEL FOR APPELLEE/PLAINTIFF:
Robert J. LeJeune

Anthony P. Palermo
James R. Raines
Attorneys at Law
One American Place - Suite 2300
P. O. Box 3197
Baton Rouge, LA 70821
(225) 387-4000
COUNSEL FOR DEFENDANTS/APPELLANTS:
Bell Tower Corporation and
Dallas National Insurance Company

PETERS, J.

The defendants, Bell Tower Corporation and Dallas National Insurance

Company (collectively referred to as Bell Tower), appeal the judgment of the

workers’ compensation judge (WCJ) in favor of the plaintiff, Robert J. LeJeune,

finding that Mr. LeJeune suffered a work-related injury to his hand while employed

by Bell Tower. The WCJ awarded Mr. LeJeune indemnity benefits, ordered that he

be allowed treatment by the physician of his choice, and awarded him penalties and

attorney fees. For the following reasons, we affirm the judgment as amended.

DISCUSSION OF THE RECORD

Bell Tower, an Oklahoma corporation, designs, manufactures, ships, and

constructs broadcast towers. In July 2007, it was hired to construct a 1,700 foot

broadcast tower in Wiggins, Mississippi. Richard Bell, the sole owner of Bell Tower,

contacted David Traxler about assembling a crew to build the Mississippi tower. In

turn, Mr. Traxler called Mr. LeJeune with a job offer. Mr. LeJeune was hired, but the

parties dispute when this occurred. Mr. LeJeune claims that he was hired while he

still in Louisiana. Mr. Bell claims that Mr. LeJeune was not hired until after he

arrived in Mississippi.

On September 15, 2007, Mr. LeJeune suffered a work-related injury to his left

hand while operating a winch on site. He reported the accident to Mr. Traxler, who

relayed the information to Mr. Bell. Mr. LeJeune sought no medical treatment until

he returned to Louisiana approximately four days after the incident. He was treated

at the W.O. Moss Regional Medical Center in Lake Charles and then by Dr. Dale

Bernauer, a Lake Charles orthopedic surgeon. However, he received no further

treatment due to his inability to pay for the medical services and Bell Tower’s refusal

to pay.

Mr. LeJeune filed a disputed claim for compensation against Bell Tower

seeking indemnity benefits, medical treatment, and penalties and attorney fees. In

response, Bell Tower filed declinatory exceptions of lack of subject matter and

personal jurisdiction and improper venue and a peremptory exception of no cause of

action. Bell Tower asserted that Mr. LeJeune’s claim was governed by Mississippi

law because he was hired in and suffered injury while working in Mississippi. Mr.

LeJeune later amended his disputed claim to add Bell Tower’s insurer, Dallas

Insurance Company, as a defendant.

Following a trial on the merits, the WCJ rendered judgment in favor of Mr.

LeJeune and denied Bell Tower’s exception of lack of subject matter jurisdiction.

The WCJ held that Mr. LeJeune suffered a work-related injury while an employee of

Bell Tower and that he was temporarily and totally disabled as a result. The WCJ

awarded Mr. LeJeune $522.00 in weekly indemnity benefits from the date of injury

and medical treatment by a physician of his choice, Dr. Bernauer. The WCJ further

held that the previous medical treatment provided to Mr. LeJeune by W.O. Moss

Regional Medical Center was reasonable and necessary and cast Bell Tower with

payment of the $268.92 bill. The WCJ awarded Mr. LeJeune penalties: $2,000.00

for Bell Tower’s failure to pay indemnity benefits; $2,000.00 for its failure to provide

medical care; and $2,000.00 for its failure to pay W.O. Moss Regional Medical

Center. Mr. LeJeune was awarded an additional $13,500.00 in attorney fees.

Bell Tower appeals alleging three assignments of error committed by the WCJ:

1. Whether the trial court erred in holding it had subject
matter jurisdiction over LeJeune’s claims based upon its
finding that a Louisiana contract for hire existed between
the parties despite the fact that the Codal requirements for
a contract did not exist.

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2. Whether the trial court erred in finding claimant’s alleged
injuries resulted from the purported workplace accident
despite clear evidence of a prior injury to the same body
part.

3. Whether the trial court erred in awarding penalties and
attorney fees against defendant despite its presentation of
a clearly defensible legal position.

Mr. LeJeune answered Bell Tower’s appeal and seeks additional attorney fees for

work performed on appeal.

OPINION

It is well settled that the standard of review applied in workers’ compensation

cases is the “manifest error-clearly wrong” standard. Dean v. Southmark Constr., 03-

1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117.

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 [v. Pellerin Marble & Granite,
93-1698 (La. 1/14/94)], 630 So.2d [706,] 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.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).

Id.

Louisiana Revised Statutes 23:1035.1(1) allows an employee injured outside

of Louisiana the benefits of its workers’ compensation laws if his employment was

principally situated here or if he was employed under a contract of hire originating

here. Of paramount importance in determining the location of an employee’s contract

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of hire is the parties’ intent. Baldwin v. N. Am. Energy Servs., 07-667 (La.App. 3 Cir.

10/31/07), 970 So.2d 101, writ denied, 07-2310 (La. 2/1/08), 976 So.2d 717.

Furthermore, the WCJ’s finding on this issue is factual in nature.

Mr. LeJeune, who lives in Sulphur, Louisiana, testified that in July of 2007,

he was contacted by Mr. Traxler about the job in Mississippi. He stated that he went

to Mr. Traxler’s home, also in Sulphur, and while there, spoke to Mr. Bell by

telephone. Mr. LeJeune testified that Mr. Bell offered him employment at $20.00 per

hour and $75.00 per diem, and he accepted that offer.

Soon thereafter, Mr. LeJeune and Mr. Traxler traveled from Sulphur to

Wiggins, Mississippi, and were immediately reimbursed their travel expenses.

However, it was not until a few days later that Mr. LeJeune completed the

employment paperwork. That paperwork was channeled through Harbor America

Texas, Inc. (Harbor America), a company which handled the payroll for all of Mr.

Bell’s employees and pays workers’ compensation insurance. The accident giving

rise to this litigation occurred on September 15, 2007.

Mr. Traxler’s testimony supported Mr. LeJeune’s version of the circumstances

surrounding the hiring process. He testified that he builds radio and television towers

for a living and was working in Austin, Texas, when Mr. Bell first contacted him

about constructing the Wiggins’ tower. According to Mr. Traxler, after he returned

home to Sulphur in July of 2007, Mr. Bell again contacted him about the Wiggins job

and talked to him about assembling a crew for the job. According to Mr. Traxler,

both he and Mr. LeJeune were in Sulphur when they reached employment terms with

Mr. Bell. Specifically with regard to Mr. LeJeune, Mr. Traxler testified that after

determining Mr. LeJeune’s interest in the job, he had him telephone Mr. Bell. As a

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result of that telephone conversation, Mr. Bell hired Mr. Lejeune as a winch operator

and his pay rate was agreed on. Mr. Traxler also confirmed Mr. LeJeune’s testimony

that the two men traveled together to Wiggins, Mississippi; that both were reimbursed

for their travel; and that the employment papers were issued through Harbor America.

Mr. Bell testified that Bell Tower is headquartered in Chelsea, Oklahoma, and

the company is engaged in the design and construction of broadcast towers. He

confirmed the Wiggins tower contract and testified that Bell Tower constructed the

tower and then installed it in September 2007. He acknowledged first contacting Mr.

Traxler about the job while Mr. Traxler was working in Texas. Although he could

not recall the particulars of the conversation with Mr. Traxler, he acknowledged that

he hired Mr. Traxler before the Wiggins job began. Although he denied giving Mr.

Traxler the authority to hire Mr. LeJeune for the job, when questioned about whether

he asked Mr. Traxler to put together a crew, Mr. Bell stated, “Somewhat.” He said

that Bell Tower has a work crew, but explained that it experiences a large turnover

of employees. Prior to the Wiggins’ job, Mr. Bell testified that Mr. Traxler suggested

a couple of men for the crew. As he was familiar with these men, he said that he gave

Mr. Traxler the authority to hire them. He stated that the men, who he thought were

in Texas, called him, and they reached an agreement as to their pay and per diem. Mr.

Bell specifically denied the telephone conversation with Mr. LeJeune whereby Mr.

LeJeune suggested he had been hired by Mr. Bell.

Mr. Bell testified that Mr. LeJeune was not hired until he arrived in Wiggins.

In fact, he stated that the first time he either met or spoke to Mr. LeJeune was at a

café in Wiggins on July 19, 2007. Mr. Bell stated that he hired Mr. LeJeune at

approximately 10:00 a.m. and agreed to pay him $20.00 per hour and $75.00 per

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diem. He admitted that he reimbursed Mr. LeJeune’s travel from Sulphur to Wiggins,

in part because the amount was insignificant, but also because Mr. Traxler informed

him that they needed Mr. LeJeune because he could operate any piece of equipment

at the site and because their current operator was unreliable.

In finding that Mr. LeJeune was hired in Louisiana, the WCJ stated in his oral

reasons:

All of the evidence, and not just the live testimony, forces the
conclusion that Mr. LeJune [sic] certainly behaved as if he had a
reasonable and legitimate expectation that he was hired in Louisiana
before he, in the company of his supervisor, embarked to Mississippi, as
did his employer. There was not a word of testimony even suggesting
that Mr. LeJune [sic] felt that his employment hinged on the face-to-face
meeting with the owner of the company in the café. Rather, he relied,
and reasonably so, on the company’s designated representative that he
was hired.

The juris prudence stands four square for the position that
Louisiana has subject matter jurisprudence if a claimant has a reasonable
expectation that he has been hired in Louisiana before he sets off to a
job site outside the state. In the Harvey case, the Court was apparently
impressed by the fact that the claimant would not have left his home in
Louisiana to go to Virginia had he not been certain the job was there.

That situation seems to be replicated in the instant matter. The
employer was very clear that he paid the wages for Mr. LeJune’s [sic]
travel from his home in Sulphur to Mississippi. I’m really hard pressed
to see how much more the employer could have done to convince Mr.
LeJune [sic] that he was hired by the company’s representative in
Sulphur. The recollection and reflection of the employer that he really
meant to hire Mr. LeJune [sic] in Mississippi especially after the
occurrence of an accident does seem convenient and transparently so.
Every Third Circuit case I am familiar with supports the claimant’s
argument that this Court has subject matter jurisdiction under the
provisions of 23:1035.1.

After reviewing the record, we can find no error in the WCJ’s factual finding

that Mr. LeJeune was hired by Bell Tower while he was in Louisiana. As pointed out

by the WCJ, the facts at issue mirror those found in Harvey v. B E & K Construction,

30,825 (La.App. 2 Cir. 8/19/98), 716 So.2d 514. In Harvey, the injured employee

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learned of a job in Virginia while working for the employer at a job in Alabama.

After returning home to Louisiana, the employee accepted the Virginia job from the

employer via telephone. The employee later suffered an injury while working in

Virginia. The court in that matter affirmed the WCJ’s finding that Louisiana had

subject matter jurisdiction despite the fact that the employee’s paperwork, drug test,

and physical were not completed until his arrival in Virginia. The court held that the

employee’s verbal agreement with the employer while still in Louisiana, determined

the location of his contract of hire. In reaching this holding, the court relied on

Ohlhausen v. Sternberg Dredging Co., 218 La. 677, 50 So.2d 803 (1951), in which

the supreme court held, under similar facts, that the determinative factor was the

existence of a definitive agreement between the parties prior to the employee’s

departure from Louisiana for employment in Florida.

In the case now before us, the WCJ was presented with two differing views of

the evidence on the origin of Mr. LeJeune’s contract of hire and chose to credit the

testimony of Mr. LeJeune and Mr. Traxler over that of Mr. Bell. This factual

determination is supported by the testimony of Mr. Bell, who admitted to hiring at

least three other employees over the phone, in the same fashion as alleged by Mr.

LeJeune, i.e., Mr. Traxler and the two crew members recommended by him. As this

is a finding of fact, the WCJ’s finding that Mr. LeJeune’s contract of hire originated

in Louisiana will not be reversed absent manifest error. We find no such error

present. Accordingly, the judgment of the WCJ, finding that Louisiana had subject

matter jurisdiction over Mr. LeJeune’s cliam, is affirmed.

Next, Bell Tower argues that the WCJ erred in finding that Mr. LeJeune’s

injuries were caused by his work-related accident rather than by a previous incident

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involving the same arm. Bell Tower relies on the October 16, 2007 medical records

of the W. O. Moss Regional Medical Center in which Mr. LeJeune presented with the

request to see a specialist for his left hand/arm. The record reveals that Mr. LeJeune

suffered a laceration to his left arm six months prior to that date. Bell Tower argues

that it was this incident which caused his complained of condition.

In order to receive workers’ compensation benefits, an injured employee must

establish a causal connection between their work-related accident and the resulting

complained of disability. Davis v. State ex rel. Dept. of Transp. and Dev., Office of

Risk Management, 09-288 (La.App. 3 Cir. 11/10/09), So.3d . The burden of

proof is by a preponderance of the evidence. That being the case, if the probability

of causation is equally balanced based on the evidence presented, then the employee

has not carried his burden of proof. Guilbeaux v. Office of District Attorney, 07-89

(La.App. 3 Cir. 5/30/07), 957 So.2d 959.

Mr. LeJeune testified that he injured his left hand while respooling wire onto

the winch. He stated that the wire had gone off the spool and that he grabbed it with

his left hand to guide it back onto the spool. According to Mr. LeJeune, while he was

guiding the wire back onto the spool, a finger on his left hand became stuck in the

winch. Mr. LeJeune immediately reported the accident to Mr. Traxler, who alerted

Mr. Bell about the incident. Mr. LeJeune testified that Mr. Bell’s response to Mr.

Traxler was that if Mr. LeJeune’s finger was not cut off, he should continue working

as they were in a hurry. Mr. LeJeune stated that he remained on the job for another

four to five days.

Eventually, Mr. LeJeune returned to Sulphur and sought treatment from the W.

O. Moss Regional Medical Center in Lake Charles. He stated that the facility was

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unable to help him and recommended that he see a specialist at the LSU. Medical

Center, but he could not obtain treatment there due to a lack of funds. He was

eventually able to see Dr. Bernauer, who ordered an EMG of his left hand. This test

was never performed, and Mr. LeJeune said that he sought no further treatment from

Dr. Bernauer because Bell Tower refused authorization. Mr. LeJeune testified that

the nerves are damaged in his left hand and that he now suffers numbness and

weakness in that hand. He stated that his hand is now much smaller as a result of this

injury.

The October 16, 2007 records from the W. O. Moss Regional Medical Center

reflect that Mr. LeJeune suffered a laceration to his left arm six months previously,

and he complained of numbness in his left hand/forearm, along with a loss of

sensation and atrophy of the muscles in the lateral aspect of his hand/arm. The

emergency room doctor diagnosed Mr. LeJeune as suffering from traumatic

neuropathy in his left hand and recommended that he go to LSU Shreveport for

further treatment of this condition.

During cross examination, Mr. LeJeune denied that the laceration listed in the

October 16, 2007 medical records was the cause of his left hand problems. Mr.

LeJeune explained that the laceration resulted from a cut he suffered on March 10,

2007. On that day, Mr. LeJeune reported to the emergency room of the West

Calcasieu Cameron Hospital after being cut with a box cutter. The cut was described

as an approximated five-inch-long-flap laceration down to the muscle and was

located on the back of his upper left arm, between his shoulder and his elbow. Mr.

LeJeune testified that he experienced no problem with his arm after this incident. He

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stated that his current problems are a result of the smashing injury he suffered on

September 15, 2007.

Mr. Traxler testified that when Mr. LeJeune suffered his injury, he was

operating a large friction winch, which weighed approximately 4,000 to 7,000

pounds. According to Mr. Traxler, the winch was older equipment and did not

contain a leveler to ensure that the cable being wound onto the spool remained level.

Mr. LeJeune was attempting to compensate for this lack of leveler when he caught his

hand in the winch. Mr. Traxler stated that he learned about Mr. LeJeune’s accident

over the radio. When he reached him, Mr. LeJeune was holding his hand and

appeared to be in pain. Mr. Traxler reported the injury to Mr. Bell, who asked if Mr.

LeJeune had suffered any real damage, to which Mr. Traxler stated, “nothing that I

could see.” On questioning, however, he stated that the winch did trap Mr. LeJeune’s

hand; that it was smashed. Mr. Traxler testified that Mr. LeJeune received no medical

attention after the incident. He explained that Mr. LeJeune thought that he could

shake the injury off, but he left the job several days later to return home to Louisiana

and seek medical treatment. According to Mr. Traxler, Mr. LeJeune’s job

performance in the days after the accident was clearly affected by his injury, and prior

to his injury, Mr. LeJeune was one of his best workers.

Mr. Bell testified that Mr. LeJune’s accident was communicated to him in

Oklahoma three to four days after it occurred. According to Mr. Bell, Mr. Traxler

informed him that Mr. LeJeune had mashed his finger in the winch. He inquired of

Mr. Traxler concerning the need for medical treatment and was told that the injury

was not that serious. Mr. Bell stated that he never spoke to Mr. LeJeune about his

injury.

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Dr. Bernauer examined Mr. LeJeune once on June 30, 2008. In the report to

Mr. LeJeune’s attorney, he noted numbness in the ring and little fingers of Mr.

LeJeune’s left hand, atrophy of the adductor, and that his little finger was contracted

and would not extend. Dr. Bernauer stated that x-rays were negative for fracture. He

said that he had ordered an EMG of Mr. LeJeune’s left hand and that he had restricted

him from working.

In finding that Mr. LeJeune satisfactorily proved his work-related injury, the

WCJ held that there was no evidence countering Mr. LeJeune’s version of events and

that the medical evidence presented supported this finding. We find no error in the

WCJ’s finding. Although the medical records are sparse, as pointed out by the WCJ,

it was reasonable for the WCJ to conclude that the recent crushing injury to Mr.

LeJeune’s left hand was the cause of the traumatic neuropathy of his left hand rather

than the earlier cut to his upper arm. Considering the size of the winch Mr. LeJeune

was operating at the time he was injured, it is more likely that the crushing injury

suffered by him, which was confirmed by Mr. Traxler, caused his complained of

condition rather than the five-inch knife cut to the upper arm.

In its final assignment of error, Bell Tower argues that the WCJ erred in

awarding Mr. LeJeune penalties and attorney fees despite its presentation of a clearly

defensible position. Bell Tower bases its “defensible” position on Mr. Traxler’s

observation to Mr. Bell that Mr. LeJeune had not suffered major damage to his hand

and that he appeared to be all right. It also relies on the fact that Mr. LeJeune

continued working after the accident and that he told Mr. Traxler that he thought he

could shake off the injury.

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Mr. Bell testified that he learned of the accident after his return to Oklahoma.

When told about the injury by Mr. Traxler, he stated that he asked if Mr. LeJeune

required medical attention. He said that Mr. Traxler replied in the negative, stating

that Mr. LeJeune’s injury was not really that bad. Mr. Bell testified that Mr.

LeJeune’s wife called him approximately one week after the accident about Mr.

LeJeune’s per diem payment. At the end of the conversation, he stated that she asked,

“well, what about his hand.” Mr. Bell testified that he told Mrs. LeJeune that it was

too late to file a claim on Mr. LeJeune’s hand. He said that she then responded that

they would go to a free clinic to seek medical care. When questioned about this, Mr.

Bell stated that it was his understanding that a claim had to be reported immediately

so that the injured party could receive medical attention. Mr. Bell admitted that he

did nothing further to investigate Mr. LeJeune’s injury. Instead, he relied only on the

initial accounts by Mr. Traxler and Mr. LeJeune that Mr. LeJeune’s injury was not

serious. With regard to Mr. LeJeune’s demand letter of July 2, 2008, in which he

sought authorization for medical treatment by Dr. Bernauer and the payment of

indemnity benefits, Mr. Bell stated that he did not recall whether he received the

letter. However, he testified that had he received it, he would have forwarded the

letter to Harbor America, who managed the workers’ compensation matters for Bell

Tower. Other than that, he stated that he performed no investigation into this matter.

Pursuant to La.R.S. 23:1201(F), an employer who fails to commence payment

of indemnity benefits or to pay medical benefits timely shall be subject to penalties

and attorney fees unless the employer reasonably controverts the employee’s claim.

Zavala v. St. Joe Brick Works, 07-2217 (La.App. 1 Cir. 10/31/08), 999 So.2d 13, writ

denied, 08-2827 (La. 1/30/09), 999 So.2d 762. A claim is reasonably controverted

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if the employer has sufficient factual and/or medical information to counter the

evidence presented by the employee. Id. Furthermore, an employer has a duty to

furnish all reasonable and necessary medical care resulting from an employee’s work-

related injury. La.R.S. 23:1203(A); Wilczewski v. Brookshire Grocery Store, 08-718

(La.App. 3 Cir. 1/28/09), 2 So.3d 1214, writ denied, 09-456 (La. 4/13/09), 5 So.3d

170.

The failure to authorize a medical procedure for an employee
otherwise eligible to receive workers’ compensation is deemed to be the
failure to furnish compensation benefits, thereby subjecting the
employer to an assessment of attorney fees and penalties, unless the
claim is reasonably controverted or such nonpayment results from
conditions over which the employer had no control. La. R.S. 23:1201;
Sims v. BFI Waste Services, L.L.C., 06-1319, p. 11 (La.App. 1st
Cir.5/16/07), 964 So.2d 998, 1005.

Sevin v. Chevrolet, 08-1362, p. 15 (La.App. 1 Cir. 4/30/09), 24 So.3d 879, 889.

The determination of whether an employer should be cast with penalties and

attorney fees is a question of fact. Accordingly, the WCJ’s award of penalties and

attorney fees will not be reversed absent manifest error. Maddox v. Texas Gas

Transmission Corp., 07-906 (La.App. 3 Cir. 12/05/07), 971 So.2d 541, writ denied,

08-64 (La. 3/7/08), 977 So.2d 911.

In awarding a total of $6,000.00 in penalties and $13,500.00 in attorney fees,

the WCJ stated that Bell Tower “did virtually nothing to investigate this claim. That

behavior is as much a violation of the statute as it is of conscience, and that worker

here was severely injured.” A review of the record reveals that this finding was

reasonable. Mr. Bell admitted that he performed no investigation at all into this

matter. Rather, he relied on second-hand accounts that Mr. LeJeune had not suffered

a serious injury to his hand. Then, when asked by Mr. LeJeune’s wife directly about

his injury, he told her that it was too late for Mr. LeJeune to file a claim regarding his

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injury. Accordingly, the judgment of the WCJ awarding Mr. LeJeune $6,000.00 in

penalties and $13,500.00 in attorney fees is affirmed.

Mr. LeJeune answered Bell Tower’s appeal and seeks additional attorney fees

for work performed on appeal. Considering our finding, we amend the judgment to

award him an additional $5,000.00 in attorney fees.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge

is affirmed in all respects. We further amend the judgment to award Mr. LeJeune an

additional $5,000.00 in attorney fees for work performed by his counsel on appeal.

The costs of this appeal are assessed to Bell Tower Corporation and Dallas National

Insurance Company.

AFFIRMED AS AMENDED.

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