Shawn Gradney v. Louisiana Commercial Laundry

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1465

SHAWN GRADNEY

VERSUS

LOUISIANA COMMERCIAL LAUNDRY

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - NUMBER TWO
PARISH OF RAPIDES, NO. 08-05712
JASON GERARD OURSO, WORKERS’ COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and David E. Chatelain,*
Judges.

AFFIRMED AS AMENDED.

Chatelain, J., concurs and assigns written reasons.

H. Douglas Hunter
Guglielmo, Lopez, Tuttle, Hunter & Jarrell
P. O. Drawer 1329
Opelousas, LA 70571-1329
(337) 948-8201
Counsel for Defendant/Appellant:
Louisiana Commercial Laundry

*Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

George Stubbs Bourgeois Jr.
Attorney at Law
421 N. Main St.
Opelousas, LA 70570
(337) 948-9111
Counsel for Plaintiff/Appellee:
Shawn Gradney

SAUNDERS, Judge.

Herein, we address whether the trial court erred in awarding temporary total

disability benefits, penalties for failure to pay medical bills and disability benefits,

and attorney fees. For the following reasons, we affirm the ruling of the trial court

and award additional attorney fees.

FACTS AND PROCEDURAL HISTORY:

On March 21, 2008, Shawn Gradney (Gradney) sustained a leg injury while

engaged in his employment with Louisiana Commercial Laundry-Single Source

Supply (LCL). His duties with LCL required him to report to the company’s

Lafayette office, load up his truck, and travel a route through Lake Charles to casinos

where he would pick up dirty laundry and replace it with clean laundry. On Friday

March 21, 2008, while pushing a full laundry buggy up an incline into his truck,

Gradney felt something pull in his leg near the hip. He reported the injury to his

supervisor, Justin Morton.

After a weekend of rest, Gradney attempted to resume his work responsibilities

on the following Monday. The pain was overwhelming, and his supervisor advised

him to see a doctor. On March 26, 2008, Gradney met with his family doctors, Drs.

Derek and Lana Metoyer, who took him off of work for one week. He returned to

work on April 1, 2008, but the pain eventually flared up again. He again consulted

with his doctors at the Metoyer Medical Clinic, and he was taken off of work from

April 3, 2008 until April 14, 2008. Gradney never returned to work with LCL.

Gradney was treated at the Metoyer Medical Clinic from March 26, 2008

through June 19, 200, and was diagnosed as having suffered a strained groin. He was

ordered to have an MRI, was prescribed Lortab, and required crutches to get around.

On June 25, 2008, Gradney instituted a claim for workers’ compensation

benefits. A trial was held on this matter on May 11, 2009. The court found that

Gradney sustained his burden of proving the accident on March 21, 2008, and his

subsequent disability from April 3, 2008 through June 19, 2008. The court awarded

Gradney temporary total disability (TTD) benefits in the amount of $307.86 per week.

The court also awarded a $2,000.00 penalty for the insurer’s failure to pay a bill to

Metoyer Medical Clinic, a $2,000.00 penalty for failure to pay TTD benefits, and

$7,500.00 in attorney fees.

LCL appeals this judgment and asserts the following assignments of error.

Gradney has answered the appeal and prayed for an increase in the penalties and

attorney fees awarded as well as additional attorney fees for responding to this appeal.

APPELLANT’S ASSIGNMENTS OF ERROR:

1. The trial court committed manifest error in awarding temporary
total disability benefits from April 3, 2008 until June 19, 2008.

2. The trial court committed manifest error in awarding a $2,000.00
penalty for failure to pay a bill owed to Dr. Metoyer absent any
evidence that the employer or insurer ever received written notice
of the unpaid bill.

3. The trial court committed manifest error in awarding a penalty
and attorney fees for failure to pay temporary total disability
benefits, or alternatively committed manifest error in sustaining
hearsay objections regarding whether the employer reasonably
controverted Mr. Gradney’s claim for benefits.

LAW AND DISCUSSION ON THE MERITS:

Standard of Review

Factual findings in workers’ compensation cases are subject to the
manifest error or clearly wrong standard of appellate review. Banks v.
Industrial Roofing & Sheet Metal Works, 96-2840, p. 7 (La.7/1/97), 696
So.2d 551, 556; Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4
(La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-
1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the
manifest error-clearly wrong standard, the appellate court must
determine not whether the trier of fact was right or wrong, but whether

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the factfinder's conclusion was a reasonable one. Banks, 96-2840 at pp.
7-8, 696 So.2d at 556; Freeman, 93-1530 at p. 5, 630 So.2d at 737-38;
Stobart v. State, 617 So.2d 880, 882 (La.1993). Where there are two
permissible views of the evidence, a factfinder's choice between them
can never be manifestly erroneous or clearly wrong. Banks, 96-2840 at
p. 8, 696 So.2d at 556; Stobart, 617 So.2d at 882. “Thus, ‘if the
[factfinder's] findings are reasonable in light of the record reviewed in
its entirety, the court of appeal may not reverse, even if convinced that
had it been sitting as the trier of fact, it would have weighed the
evidence differently.’ ” Banks, 96-2840 at p. 8, 696 So.2d at 556
(quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112
(La.1990)).

Seal v. Gaylord Container Corp., 97-0688, p. 4 (La. 12/2/91), 704 So.2d 1161, 1164

(alteration in original).

Temporary Total Disability Benefits

LCL contends that the trial court erred in awarding TTD benefits to Gradney.

It argues that Gradney has failed to show any objective signs of injury and that, at

most, he is entitled to only two days of TTD benefits.

Generally, a workers’ compensation claimant must prove by a preponderance

of the evidence that he has suffered a work-related accident and injury. Smith v.

Town of Olla, 07-384 (La.App. 3 Cir. 10/3/07), 966 So.2d 1165.

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. Bruno v. Harbert Int’l,
Inc., 593 So.2d 357 (La.1992). Corroboration of the worker's testimony
may be provided by the testimony of co-workers, spouses, friends, or by
medical evidence. Id.

Id. at 1169 (quoting Hebert v. C.G. Logan Constr., Inc., 06-612 (La.App. 3 Cir.

11/2/06), 942 So.2d 77, 80).

We note, however, that in cases of TTD benefits, La.R.S. 23:1221(1)(c)

provides for an elevated burden of proof:

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For purposes of Subparagraph (1)(a) of this Paragraph, whenever
the employee is not engaged in any employment or self-employment as
described in Subparagraph (1)(b) of this Paragraph, compensation 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.

Under the application of either standard, we cannot say that the trial court was

in manifest error or was clearly wrong in granting TTD benefits to Gradney. LCL’s

only argument in support of this assignment of error is that the benefits were awarded

based on a “subjective pain complaint.” We disagree. The record reflects that there

was considerable objective evidence of an injury sustained on the job. Gradney

sought treatment for the injury with Dr. Metoyer for several weeks. Dr. Metoyer

ordered Gradney off of work until April 15, 2008, and diagnosed Gradney with a

strained groin. He continued to seek treatment at the Metoyer Medical Clinic after

April 15, 2008, and up until June 19, 2008. Gradney’s injury required the use of

crutches in order for him to walk. Moreover, the injury was thought serious enough

that pain killers were prescribed and an MRI was ordered.

Upon reviewing the record, we find that there is ample evidence to support

Gradney having proved by clear and convincing evidence that he was not capable of

working over the period of April 3, 2008 through June 19, 2008. For this reason, we

find that the trial court did not err in awarding TTD benefits for that period.

Penalties and Attorney Fees

LCL next contends that the trial court erred in awarding $2,000.00 for LCL’s

failure to pay a medical bill to Dr. Metoyer. It argues that it had no notice of the bill

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and that it should therefore not be penalized.

Louisiana Revised Statutes 23:1201(E) provides: “[m]edical benefits payable

under this Chapter shall be paid within sixty days after the employer or insurer

receives written notice thereof.”

A workers’ compensation judge has great discretion in awarding penalties and

attorney fees, and his determination should not be disturbed in the absence of

manifest error. Meche v. Foremost Mgmt. Corp., 95-238 (La.App. 3 Cir. 10/4/95),

663 So.2d 325.

In support of its argument, LCL cites Daniels v. Keller Supply, Inc., 02-2767

(La.App. 4 Cir. 8/6/03), 854 So.2d 416. We find the case to be distinguishable on the

facts. Daniels addresses La.R.S. 23:1201(E) and whether penalties were owed by an

employer when it failed to timely pay an emergency room bill for treatment of an

employee’s injuries. The court reversed the ruling of the trial court and found that

penalties for failure to pay the bill were not appropriate. The court reached this

conclusion based on the fact that no one ever notified the employer that Dr. Seltzer

was treating the employee or requested that the employer pay for the treatment. In

the matter before us, LCL was aware that Gradney was being treated by Dr. Metoyer,

as Gradney had previously filled out a “choice of physician” form electing Dr.

Metoyer as his treating physician. Moreover, there was significant communication

between Dr. Metoyer and the LCL insurer regarding all of Gradney’s visits to the

clinic and the prescriptions given to him. LCL was also notified of the specific

unpaid bill at the time of Gradney’s deposition.

After considering the facts and the great discretion owed to the trial court’s

determination on the issue, we cannot find that the trial court was clearly wrong or

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in manifest error by awarding the $2,000.00 penalty.

In its next assignment of error, LCL contends that the trial court erred in

awarding attorney fees of $7,500.00 and penalties of $2,000.00 to Gradney after LCL

failed to pay TTD benefits.

Penalties and attorney fees are awarded when an employer or his insurer fails

to timely pay benefits owed to an employee, unless the claim for benefits has been

reasonably controverted or the nonpayment was a result of conditions over which the

employer or his insurer had no control. La.R.S. 23:1201(F); Brown v. Texas-LA

Cartage, Inc., 98-1063 (La. 12/1/98), 721 So.2d 885.

An employee’s right to benefits will be considered to be reasonably

controverted when the employer or his insurer had “sufficient factual information to

reasonably counter the factual information presented by the claimant.” Thibodeaux

v. L.S. Womack, Inc., 94-1375, p. 2 (La.App. 3 Cir. 4/5/95), 653 So.2d 123, 125.

LCL has not offered an argument setting forth any factual information that

might suggest that Gradney’s right to benefits has been reasonably controverted.

Instead, it only argues that the trial court erred in granting hearsay exceptions and in

not allowing LCL to make a proffer to set forth the nature of the evidence intended

in the testimony. While this court acknowledges that the proffer should have been

allowed, the proper procedure for LCL would have been to seek supervisory writs on

the trial court’s evidentiary ruling. La.Code Civ.P. art. 2201; Orrill v. Orrill, 08-400

(La.App. 4 Cir. 2/4/09), 5 So.3d 279.

For the foregoing reasons, and in accordance with the great deference afforded

to the trial court in awarding penalties and attorney fees, we find that the assignment

of error is without merit. Furthermore, upon Gradney’s request in answer to this

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appeal, we grant an additional $2,500.00 in attorney fees for added legal services

rendered in taking this appeal.

CONCLUSION:

For the foregoing reasons, we affirm the trial court’s grant to Gradney of TTD

benefits, $2,000.00 in penalties for LCL’s failure to pay medical bills, $2,000.00 in

penalties for LCL’s failure to pay TTD benefits, and $7,500.00 in attorney fees. We

also grant an additional $2,500.00 in attorney fees for work done on this appeal.

Costs of this appeal are assessed to LCL.

AFFIRMED AS AMENDED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1465

SHAWN GRADNEY

VERSUS

LOUISIANA COMMERCIAL LAUNDRY

CHATELAIN, Judge, concurring.

I write separately to express my concerns about two aspects of this case: (1)

the need for objective medical evidence to show that Mr. Gradney was unable to

return to work and (2) the majority opinion’s statement regarding Louisiana

Commercial Laundry-Single Source Supply’s (LCL) argument about the trial court’s

disallowance of several proffers.

It is well settled that an employee seeking temporary total disability benefits

(TTD) must prove his claim by clear and convincing evidence. The “clear and

convincing” standard is a heavier burden of proof than the usual civil case standard

of “preponderance of the evidence” but is less burdensome than the “beyond a

reasonable doubt” standard of criminal prosecution. Chatelain v. State, Dep’t of

Transp. & Dev., 586 So.2d 1373, 1378 (La.1991). To prove a matter by “clear and

convincing” evidence means to demonstrate that the existence of a disputed fact is

highly probable, in other words, much more probable than not. Fritz v. Home

Furniture-Lafayette, 95-1705, p. 3 (La.App. 3 Cir. 7/24/96), 677 So.2d 1132, 1134.

In brief, LCL argues, relying upon Wiley v. Kenneth Parker Logging, 97-1247

(La.App. 3 Cir. 3/6/98), 711 So.2d 297, that Mr. Gradney could only meet his “clear

and convincing” standard of proof by introducing objective medical evidence to

support his claim for TTD benefits. I agree that Wiley makes such a statement.

However, my review of Bailey v. Smelser Oil & Gas Inc., 620 So.2d 277 (La.1993),

the case relied upon in Wiley for that proposition, does not appear to support that

statement.

In Bailey, our supreme court addressed the “clear and convincing” standard

applicable in TTD cases and stated: “Disability can be proven by medical and lay

testimony. The trial court must weigh all the evidence, medical and lay, in order to

determine if the plaintiff has met his burden.” Id. at 281 (emphasis added) (citation

omitted). After reading Bailey, I do not see where objective medical evidence is a

mandatory requirement for recovery. As I see it, medical evidence is an important

ingredient of the claimant’s burden of proof, but it is only part of the totality of

evidence to be weighed.

Nonetheless, after examining the record of this matter, I agree with the

majority’s determination relative to TTD. Even if Mr. Gradney did not provide

objective medical evidence beyond April 15, 2008, that he was unable to return to

work, there is no manifest error in the trial court’s evaluation of other evidence in

reaching its determination that Mr. Gradney met his higher burden of proof for the

short period of disability claimed.

I next address the question of proffer. Although I agree with the majority’s

resolution of this issue, I further write to briefly express my concern with the majority

opinion’s statement that LCL should have sought supervisory writs on the lower

court’s evidentiary ruling about its proffer. I respectfully suggest that supervisory

writs are not required in such a case. In fact, as I examine La.Code Civ.P. art. 1636

it is apparent that the very purpose of requiring a proffer is to preserve excluded

testimony for appellate review. See Sher v. Lafayette Ins. Co., 07-2441 (La. 4/8/08),

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988 So.2d 186.

My review of the record indicates an initial instance where LCL mentioned the

need to make a proffer. In response to that request, the trial court instructed LCL to

“proffer it by deposition after the trial.” At that point, LCL neither objected to the

trial court’s ruling nor sought to either “make a complete record . . . or make a

statement setting forth the nature of the evidence” as delineated in La.Code Civ.P. art.

1636(A). The same scenario played out in two other occasions. Without a proffer

being attempted and denied,1 I find LCL waived these objections. Id.; Hudspeth v.

Smith, 42,647 (La.App. 2 Cir. 11/7/07), 969 So.2d 793.

1
As provided in La.Code Civ.P. art. 1636, the trial court may allow “any excluded evidence
to be offered . . . by deposition taken . . . within thirty days subsequent to the exclusion of any such
evidence or the completion of the trial or hearing, whichever is later.” Even though the trial court
allowed LCL to utilize this mode of proffer, the record is void of any evidence that such mode of
proffer was ever attempted.

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