Brian Doyal v. Vernon Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-427

BRIAN DOYAL

VERSUS

VERNON PARISH SCHOOL BOARD

**********
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2,
PARISH OF RAPIDES, NO. 04-05616
HONORABLE JAMES L. BRADDOCK,
WORKERS’ COMPENSATION JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Oswald A. Decuir, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Stacey Auzenne, Attorney at Law
P.O. Box 11867
Alexandria, LA 71315
Counsel for Defendant-Appellant:
Vernon Parish School Board

Maria Losavio, Attorney at Law
P.O. Box 12420
Alexandria, LA 71315
Counsel for Plaintiff-Appellee:
Brian Doyal

PAINTER, Judge.

Defendant, Vernon Parish School Board, appeals the denial of its motion to

modify judgment in this workers’ compensation case. For the following reasons, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This matter arises out of a work-related injury suffered by Brian Doyal on

October 9, 2003, when a sheet pan rack toppled against him and knocked him to the

ground. We have previously considered an appeal in this matter and determined that

there was no error in the workers’ compensation judge’s award of continuing medical

treatment of the low back condition and the carpal tunnel surgery recommended by

his physicians. Doyal v. Vernon Parish Sch. Bd., 06-1088 (La.App. 3 Cir. 2/7/07),

950 So.2d 902, writ denied, 07-832 (La. 06/15/07), 958 So.2d 1190.

We previously noted:

This matter was instituted on August 5, 2004[,] when the School
Board filed a “Disputed Claim for Compensation” and, in its pre-trial
statement, asserted that Mr. Doyal fraudulently accepted compensation
benefits while earning in excess of ninety percent of his pre-accident
wage, provided false statements regarding the occurrence of the
accident, and failed to disclose pre-existing back injuries in his
employment questionnaire and in the history provided to physicians who
treated him after the accident. The School Board sought reimbursement
of all indemnity, medical, and mileage benefits. Mr. Doyal filed his own
claim and asserted entitlement to TTD benefits as well as penalties and
attorney’s fees due to the termination of benefits.

The workers' compensation judge denied the School Board's
forfeiture claims, reinstated TTD benefits from the date they were last
paid, and found Mr. Doyal entitled to continued medical care, including
the recommended back surgery and carpal tunnel release. The trial court
awarded $8,000.00 in penalties and $25,000.00 in attorney’s fees
pursuant to La.R.S. 23:1201(I).

Id. at 904-5.

We affirmed the workers’ compensation judge’s ruling in its entirety. Then,

in August of 2009, Defendant filed a motion to modify the judgment, alleging that

Mr. Doyal’s treating physician changed his opinion regarding the necessity of a low

back surgery and that two orthopedic surgeons had concluded that Mr. Doyal had

carpal tunnel syndrome but that it was unrelated to his work injury. Prior to the

1

hearing on this motion, Mr. Doyal’s treating physician again changed his opinion

regarding the necessity of the back surgery. Accordingly, the School Board approved

payment for the back surgery, and the only issue at trial was the carpal tunnel surgery.

The workers’ compensation judge denied the School Board’s motion and stated

that he was not inclined to reverse his previous finding of a causal connection

between the work-related accident and Mr. Doyal’s carpal tunnel syndrome. The

School Board now appeals this ruling. The School Board contends that the workers’

compensation judge committed legal error in denying its motion because: (1) the

School Board is entitled to a modification of the judgment due to a change in Mr.

Doyal’s medical circumstances; i.e., two doctors have now concluded that the carpal

tunnel syndrome was unrelated to the work-related accident, and (2) the medical

evidence is clear and uncontradicted that the carpal tunnel syndrome is unrelated to

the accident at issue. Plaintiff answered the appeal, seeking an award of additional

attorney’s fees for work done on appeal. Defendant filed a motion to strike said

answer, and the resolution of that motion was referred to this panel on the merits. In

his brief to this court, Plaintiff alleges that the trial court erred in denying expert

witness fees, court reporter fees, and costs. However, Plaintiff’s answer to appeal

sought only additional attorney’s fees for work done on appeal. Thus, we do not

consider Plaintiff’s claims for expert witness fees, court reporter fees, and costs. For

the following reasons, we deny Defendant’s motion to strike Plaintiff’s answer to

appeal, and we affirm the ruling of the workers’ compensation judge denying the

motion to modify judgment.

DISCUSSION

A party may re-open a workers’ compensation case, and the workers’

compensation judge may modify an award on the grounds of a change in condition.

La.R.S. 23:1310.8(B). “A party who seeks a modification of a worker’s

compensation judgment must prove by a preponderance of the evidence that the

worker’s disability has increased or diminished.” Lormand v. Rossclaire Constr., 01-

515, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 675, 676. The factual findings of the

2

workers’ compensation judge are entitled to great weight and will not be disturbed

unless clearly wrong. Id.

Defendant’s based their motion to modify judgment, in part, on the deposition

of Dr. Robert L. Morrow, Jr., in which Dr. Morrow stated that he did not think that

he could say with any degree of medical certainty that Plaintiff’s carpal tunnel

syndrome was related to the October 9, 2003 accident. However, we note that Dr.

Morrow did not see Plaintiff until some five years after the accident. Defendant

contends that a change in medical opinion as to the causation of carpal tunnel

syndrome has been made by Plaintiff’s treating physicians and that this evidence did

not exist at the time of the original trial. We do not agree. All of the doctors agree

that Plaintiff has some degree of carpal tunnel syndrome. There is conflicting

testimony as to the cause. We note, however, that Plaintiff complained of pain to his

left wrist immediately after the subject accident and that this court has already

affirmed a finding that the carpal tunnel syndrome was related to this accident.

We agree with the workers’ compensation judge , and this court has repeatedly

recognized that “causation is not necessarily a medical conclusion, and the ultimate

determination as to whether a plaintiff has proved the causation of his disability is

made by the courts and not by medical experts.” Bush v. Avoylles Progress Action

Comm., 07-685, p. 7 (La.App. 3 Cir. 10/31/07), 970 So.2d 63, 68. We cannot say the

workers’ compensation judge was clearly wrong in concluding that Defendant has not

proven a change in circumstances. We, therefore, affirm the denial of the motion to

modify judgment.

We now consider Defendant’s motion to strike Plaintiff’s answer to the appeal.

This court recognized that:

The basis for awarding additional attorney’s fees for services
rendered on appeal is that in order to protect her rights on appeal, the
litigant successful at the trial level must incur additional expenses which
otherwise would not have been incurred. Kleas v. Mayfield, 404 So.2d
500 (La.App. 3 Cir.1981). Normally, when a plaintiff seeks relief that
was denied at the trial level, and such relief is again denied on appeal,
an increase in attorney’s fees for services rendered on appeal is
unwarranted. However, “an appellee who answers the appeal seeking
relief denied him in the trial court but who also successfully defends the

3

trial court judgment should not be deprived of additional attorney’s fees
on appeal when the relief sought in his answer is denied.” Bischoff v.
Old Southern Life Insurance Co., 502 So.2d 181, 186 (La.App. 3
Cir.1987) (Knoll, J. concurring); See also Bischoff, Id. (Guidry, J.
concurring); Latiolais v. Home Insurance Co., 454 So.2d 902 (La.App.
3 Cir.), writ denied, 460 So.2d 610 (1984).

Stacks v. Mayflower Transit, Inc., 95-693, pp. 5-6 (La.App. 3 Cir. 11/2/95), 664 So.2d

566, 569.

Defendant recognizes that Plaintiff made an oral motion for costs, penalties,

and attorney’s fees at the trial of its motion to modify judgment but asserts that

Plaintiff did not seek any relief at the trial court level and is not entitled to any award

of attorney’s fees for any response to this appeal. We disagree with Defendant and

award an additional $3,000.00 in attorney’s fees for work done on appeal.

DECREE

For all of the foregoing reasons, the ruling the workers’ compensation judge

denying Defendant’s motion to modify judgment is affirmed. Furthermore, we deny

Defendant’s motion to strike Plaintiff’s answer to appeal and award an additional

$3,000.00 in attorney’s fees for work done on appeal. All costs of this appeal are

assessed to Defendant, Vernon Parish School Board.

AFFIRMED.

4