Harold Julien v. Dynamic Industries, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-520

HAROLD JULIEN

VERSUS

DYNAMIC INDUSTRIES, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 08-06249
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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DAVID E. CHATELAIN*
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and David E. Chatelain,
Judges.

JUDGMENT AFFIRMED. ANSWER TO APPEAL DISMISSED.

David K. Johnson
Johnson, Stiltner & Rahman
Post Office Box 98001
Baton Rouge, Louisiana 70898-8001
(225) 231-0755
Counsel for Defendants/Appellants:
Dynamic Industries, Inc.
Louisiana Workers’ Compensation Corporation

Craig A. Davis
Attorney at Law
111 Mercury Street
Lafayette, Louisiana 70503
(337) 231-5351
Counsel for Plaintiff/Appellee:
Harold Julien

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

CHATELAIN, Judge.

The defendants, Dynamic Industries, Inc. (Dynamic) and Louisiana Workers’

Compensation Corporation (LWCC), appeal a judgment the workers’ compensation

judge (WCJ) rendered in favor of its employee, Harold Julien (Julien). Julien answers

the appeal seeking additional attorney fees and costs for having to defend the appeal.

For the following reasons, we affirm the ruling of the WCJ and dismiss Julien’s

answer to appeal as untimely.

FACTS AND PROCEDURAL HISTORY

Julien worked as an equipment operator for Dynamic at its west yard at the Port

of Iberia where Dynamic built offshore oil and gas platforms. Julien’s primary duties

entailed operating cranes and cherry pickers to transport equipment and material from

the yard to the dock area to be loaded onto barges by the riggers.1 Occasionally,

however, if it was a slow day and there was nothing for him to move with his cherry

picker, Julien’s supervisor would ask him to “give the riggers a helping hand.”

July 23, 2007 had been a slow day for the operators, and Julien’s supervisor

had asked him to help the riggers, who were short-handed that day, take a gangplank

off of a barge so that the barge could be moved. The gangplank was too heavy to be

manually moved. Julien’s supervisor and three or four riggers were on the barge.

Julien and a rigger were on the gangplank rigging it up to a cherry picker with

shackles and chains when the gangplank came apart from the barge causing Julien

and the rigger to fall “out of the air backwards” twelve to fifteen feet to the ground.

They landed on top of a pipe used as a hand railing. Rocks and gravel covered the

ground where they fell. An ambulance took Julien to the emergency room at

1
According to the defendants’ appellate brief, the riggers “were charged with the task of
fixing the platform and its appurtenant equipment to the barges.”

1

Dauterive Hospital for treatment. Later, Dynamic sent Julien to see Dr. Olga Reavill,

its company doctor. Julien testified that on one particular occasion a company van

had picked him up for an appointment with Dr. Reavill. On the way home from the

appointment, Julien was told that he was being terminated for not returning to work.

Julien was initially represented by an attorney who filed an LS-203 “Claim for

Compensation” with the U.S. Department of Labor on September 13, 2007, asserting

a claim under the Longshore & Harbor Workers’ Compensation Act, 33 U.S.C. §§

901-944 (the LHWCA or the Longshore Act). Thereafter, Julien discharged his

original attorney and retained his current counsel of record. Believing that the

LHWCA did not cover Julien’s claim, current counsel filed a 1008 Disputed Claim

for Compensation on July 10, 2008, seeking benefits pursuant to the Louisiana

Workers’ Compensation Act, La.R.S. 23:1021-1415 (the LWCA or the State Act) on

Julien’s behalf. The defendants responded to Julien’s claim by filing a declinatory

exception of lack of subject matter jurisdiction, contending that the Longshore Act

covered the matter. In the meantime, Julien filed a motion to approve his request for

Temporary Total Disability Benefits (TTDs). The defendants’ exception and Julien’s

motion came for hearing before the WCJ on October 24, 2008.2 By judgment dated

December 16, 2008, the WCJ denied Julien’s motion for TTDs and the defendants’

declinatory exception. The judgment directed that “any benefits owed are to be paid

under the State . . . Act and not the Longshore . . . Act.” Thereafter, the defendants

filed an answer and general denial; they sought neither supervisory nor appellate

review of the denial of their exception of lack of subject matter jurisdiction.

2
The record on appeal does not contain a transcript from the October 24, 2008 hearing, and
we are unaware that any such transcript exists.

2

The matter was tried on October 14, 2009. The only witnesses to testify were

Julien and his wife. Following the presentation of testimony, exhibits, and arguments

of counsel, the WCJ orally ruled as follows: (1) that medical treatment for a lumbar

strain and cracked ribs be provided to Julien pursuant to the State Act; (2) that

Julien’s request for a diskogram is denied; (3) that TTDs be reinstated back to the

date Julien was terminated with interest on any past due amounts and that a dollar-

for-dollar credit be allowed for any overpayments due to the prior TTD payments

made pursuant to the Longshore Act; (4) that no penalties or attorney fees be awarded

for the discontinuance of indemnity benefits; (5) that there be a $4,000.00 penalty and

a $4,000.00 attorney fee assessed against the employer for failure to approve and/or

timely reimburse Julien for prescription medications; (6) that Julien undergo a

functional capacity evaluation (FCE) as soon as possible and that the insurer pay for

all necessary medication for Julien’s high blood pressure until the FCE is completed;

(7) that Julien’s counsel be awarded $321.81 for expenses incurred in obtaining

certified medical records; and (8) that the insurer pay for the medical treatment

outlined in Plaintiff’s Exhibits 24, 25, and 26 pursuant to the Louisiana Fee Schedule.

The WCJ signed a written judgment on October 30, 2009.

The defendants timely appealed and are now before this court asserting two

errors. First, they contend that the WCJ erred in failing to find that Julien’s claim fell

within the jurisdiction of the Longshore Act. Next, they contend that the WCJ erred

in awarding Julien compensation and medical benefits.3

3
The defendants also claimed that the WCJ erred in awarding Julien penalties and attorney
fees; however, they failed to brief this issue. Uniform Rules—Courts of Appeal, Rule 2–12.4
provides that “[a]ll specifications or assignments of error must be briefed” and that the “court may
consider as abandoned any specification or assignment of error which has not been briefed.” We
find that the defendants’ failure to advance any argument regarding the propriety of the WCJ’s award
of penalties and attorney fees to Julien constitutes an abandonment of the issue. See Charles v.
Landry, 09-1161 (La.App. 3 Cir. 3/10/10), 32 So.3d 1164.

3

DISCUSSION

This court discussed the standard of review to be employed in workers’

compensation cases in Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App.

3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d

784:

Factual findings in workers’ compensation cases are subject to the
manifest error or clearly wrong standard of appellate review. Smith v.
Louisiana Dep’t of Corrections, 93-1305 (La. 2/28/94); 633 So.2d 129.
In applying the manifest error standard, the appellate court must
determine not whether the trier of fact was right or wrong, but whether
the factfinder’s conclusion was a reasonable one. Stobart v. State, 617
So.2d 880 (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. Id. 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 though convinced that had it been sitting
as the trier of fact, it would have weighed the evidence differently.”
Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

“The determination of coverage is a subjective one in that each case must be

decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220

(La.1981). This court has held that, in light of that standard of review, “great

deference is accorded to the [workers’ compensation judge’s] factual findings and

reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3

(La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La. 4/2/04), 869

So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95),

663 So.2d 57, 61).

Initially we note that the defendants do not challenge the allegation that Julien

suffered a work-related injury. Instead, the defendants focus their argument primarily

on whether Julien’s claim falls within the jurisdiction of the State Act or the

4

Longshore Act and urge us to reverse the WCJ’s determination that it had subject

matter jurisdiction over this matter.

The State Act versus The Longshore Act

The defendants contend that the “situs” requirement for coverage under the

Longshore Act has been satisfied in this case because Julien admitted that his

accident occurred at the Port of Iberia and because there is “no doubt that the Port of

Iberia is [a] dock or an adjoining area customarily used by an employer (herein

Dynamic Industries) in loading or unloading vessels and which is located upon the

navigable waters of the United States.” The defendants offer no jurisprudential

support for their conclusory allegation that Julien’s injury occurred upon the

navigable waters of the United States.

With respect to the “status” requirement, the defendants contend that because

the evidence showed that Julien played a “significant and regular role in the

loading/unloading operations” of Dynamic, the trial court erred in concluding that

Julien was not covered under the Longshore Act. In support of their argument, the

defendants refer this court to three decisions published in the Benefits Review Board

Service Longshore Reporter.4

Julien counters that “there is not a scintilla of evidence in the record to prove

that there were navigable waters anywhere near [him] at the time of the [a]ccident”

or that Dynamic is in the business of loading, unloading, repairing, dismantling, or

building vessels. To the contrary, Julien submits that the entirety of the evidence as

to the nature of Dynamic’s business operations came from trial exhibits which

4
See Vega v. Mobil Mining and Minerals, 33 BRBS 319 (ALJ)(1999); Washington v.
McDermott, Inc., 32 BRBS 418 (ALJ)(1998); and Hovell v. Waterman Steamship Corp., 30 BRBS
255 (ALJ)(1996).

5

showed that Dynamic builds platforms for oil and gas companies. Moreover, Julien

submits that the simple fact that he worked at a facility located entirely within the

Port of Iberia, which he describes as “a huge area, comprising many different

employers,” does not prove that he was working on navigable waters or on any area

customarily used by Dynamic for loading, unloading, repairing, dismantling, or

building vessels. Nonetheless, Julien fails to offer any jurisprudential support for his

claim that the “situs” requirement has not been met.

For the Longshore Act to cover an employee, the employee must meet the

“status” and the “situs” requirements listed in the Longshore Act. See Herb’s

Welding, Inc. v. Gray, 470 U.S. 414, 105 S.Ct. 1421 (1985). The “status”

requirement is found in 33 U.S.C. §§ 902(3) and 902(4), which provide, in pertinent

part:

(3) The term “employee” means any person engaged in maritime
employment, including any longshoreman or other person engaged in
longshoring operations, and any harbor-worker including a ship
repairman, shipbuilder, and ship-breaker. . . .

....

(4) The term “employer” means an employer any of whose employees
are employed in maritime employment, in whole or in part, upon the
navigable waters of the United States (including any adjoining pier,
wharf, dry dock, terminal, building way, marine railway, or other
adjoining area customarily used by an employer in loading, unloading,
repairing, or building a vessel).

The “situs” requirement concerns the location where the employee’s work is

performed; it is found in 33 U.S.C. § 903(a), which is entitled “Disability or death;

injuries occurring upon navigable waters of United States,” and provides:

Except as otherwise provided in this section, compensation shall be
payable under this chapter in respect of disability or death of an
employee, but only if the disability or death results from an injury
occurring upon the navigable waters of the United States (including any

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adjoining pier, wharf, dry dock, terminal, building way, marine railway,
or other adjoining area customarily used by an employer in loading,
unloading, repairing, dismantling, or building a vessel).

In Flowers v. Coastal Cargo Co., Inc., 01-656, pp. 3-4 (La.App. 4 Cir.

3/20/02), 815 So.2d 198, 200, writ denied, 02-923 (La. 5/31/02), 817 So.2d 100, the

fourth circuit detailed the analysis employed in determining whether an injured

employee’s remedy falls under the State Act or the Longshore Act, noting:

“Longshore Act coverage is to be determined solely on the basis
on [sic] the provisions of the Longshore Act, and without reference to
the availability which any such ‘employees’ may have to remedies
outside that law.” H.R. Rep. 98–570(I), p. 7, 1984 U.S.C.C.A.N. 2734,
2740. Therefore, it was proper for the Workers’ Compensation Court to
look to the LHWCA to make a determination regarding jurisdiction in
this matter. . . .

Pursuant to La. R.S. 23:1035.2 of the WCA, “no compensation
shall be payable in respect to the disability or death of an employee
covered by the Federal Employer’s Liability Act, the Longshoremen’s
(sic) and Harbor Worker’s (sic) Compensation Act, or any of its
extensions, or the Jones Act.”

The Flowers court upheld the WCJ’s finding that jurisdiction over the injured

worker’s claim fell under the Longshore Act, noting that his “injury occurred while

[he] was engaged in maritime activities.” Id. Unfortunately, however, the opinion

does not go into detail regarding the location where the employee was working, the

work that the employee was engaged in, or the circumstances surrounding his injury.

Nevertheless, in Bercegeay v. Cal-Dive International, Inc., 583 So.2d 1181

(La.App. 1 Cir.), writ denied, 589 So.2d 1070 (La.1991), a diesel mechanic who was

injured on land in the workshop on his employer’s premises, which included facilities

for docking the employer’s two vessels, filed suit under the Jones Act, and in the

alternative, under the Longshore Act. In reversing the trial court’s grant of summary

judgment in favor of the employer and dismissing the mechanic’s Jones Act claim,

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the appellate court noted that a material issue of fact remained regarding whether the

mechanic’s injury occurred upon navigable waters. As a result, because a question

remained as to whether the mechanic’s claim was covered under the Longshore Act,

summary judgment dismissing his alternative Jones Act claim “cannot be supported

on the basis . . . that coverage of a worker under the LHWCA precludes that worker

from entitlement to Jones Act benefits.” Id. at 1185.

Although the questions before us today differ from those faced by the

Bercegeay court, we are nonetheless convinced that the decision provides sound

guidance to the resolution of the issue of whether the WCJ erred in finding that

Julien’s claim fell within the jurisdiction of the State Act. The record before us

contains no evidence on the issue of whether Julien was injured upon the navigable

waters of the United States or any adjoining area Dynamic customarily used in

loading, unloading, repairing, dismantling, or building vessels. At oral argument,

counsel for the defendants insisted that the exception of lack of subject matter

jurisdiction was reurged at the trial on the merits.5 Although the transcript reflects

that the issue of jurisdiction was discussed at trial, the transcript does not reflect that

the exception was officially reurged. Likewise, there is no order in the record

resetting the defendants’ jurisdictional exception for hearing. In addition, we note

5
The defendants, citing The Daniel Ball, 77 U.S. 557 (1870), also contended at oral argument
that a waterway navigable in fact constitutes a waterway navigable in law. Despite defendants’
contention to the contrary, a cursory review of this state’s jurisprudence shows that the navigability
of a waterway is never presumed. See Buckskin Hunting Club v. Bayard, 03-1428, p. 9 (La.App. 3
Cir. 3/3/04), 868 So.2d 266, 272 (in the context of a property lessee’s action seeking to enjoin
hunters from entering property, this court stated that “navigability is not presumed” but, rather, “is
a burden to be carried by the party asserting navigability”); Shell Oil Co. v. Pitman, 476 So.2d 1031
(La.App. 3 Cir. 1985) (in the context of an oil companies’ concursus petition to obtain resolution of
an ownership dispute over royalties, this court noted that the party asserting the navigability of a
waterway must prove it because it cannot be presumed); Guillory v. Bertrand, 375 So.2d 144
(La.App. 3 Cir.), writ denied, 378 So.2d 434 (La.1979) (in the context of a suit arising from a
collision between two boats on Bayou Lacassine, this court determined that because there was no
evidence offered to prove that the Bayou was a navigable stream, it would apply Louisiana’s general
tort law, rather than maritime law, because navigability is not presumed).

8

that the record on appeal contains no transcript or exhibits from the October 24, 2008

hearing. Thus, even if testimony and evidence regarding the exception was presented

to the WCJ at the earlier hearing, no such evidence or testimony has been presented

to this court. Moreover, no evidence or testimony was presented at trial which could

be viewed as a basis for the WCJ to reconsider her prior determination that any

benefits found to be owed to Julien were payable under the State Act.

A “judgment of a trial court is presumed correct, absent any record evidence

indicating the contrary.” Williams v. Williams, 07-541, p. 7 (La.App. 3 Cir.

10/31/07), 968 So.2d 1234, 1239 (citing Steinhoff v. Steinhoff, 03-24 (La.App. 3 Cir.

4/30/03), 843 So.2d 1290). Accordingly, there is no basis from which this court

could conclude that the WCJ erred in finding that Julien’s claim fell within the

jurisdiction of the State Act. Because of our ruling, we need not discuss whether the

evidence showed that Julien met the “status” requirement for coverage under the

Longshore Act. Therefore, the defendants’ first assignment of error lacks merit.

Julien’s Entitlement to Compensation and Medical Benefits

The defendants next contend that even if Julien’s claim falls under the State

Act, Julien failed to prove his entitlement to continuing medical and indemnity

benefits because the evidence does not disclose any cause for Julien’s continued

complaints of pain and disability.

Julien describes the defendants’ contention as ridiculous. Julien submits that

the defendants wrongfully terminated his compensation benefits in October of 2009

despite the fact that Dr. John Cobb, his treating physician, stated that he was unable

to work. Moreover, he stresses that despite Dr. Cobb’s medical opinion, the

9

defendants have refused to approve any additional testing to determine the source of

his pain or to approve any continuing medical treatment or prescription benefits.

Dr. Cobb signed a work status report on September 15, 2008, stating that Julien

was unable to work pending diagnostic testing.6 On March 16, 2009, Dr. Cobb

recommended that Julien undergo a lumbar MRI due to his continued symptoms that

“sound disc related that we have been unable to confirm.”7 At that time, Dr. Cobb

noted that Julien was still unable to work. In addition, there is a note in Julien’s

records dated July 1, 2009, wherein Dr. Cobb stated that Julien had chronic lower

back pain of undetermined etiology that did not appear to be disc related and he

recommended that Julien see Dr. Daniel Hodges for treatment with a pain

management program.8 Again, Dr. Cobb opined that Julien was unable to work at the

time.

Our review of the record shows that the WCJ was presented with two views of

Julien’s current medical condition. On the one hand, Julien testified that he continues

to suffer from pain, and he presented evidence from his treating physician which

indicated that he is in need of further testing to determine the source of his pain and

disability. On the other hand, the defendants submit that all of the diagnostic tests

performed on Julien to date have either shown normal results or have failed to show

any disc involvement and that none of the tests have revealed the source of Julien’s

continued complaints. The WCJ concluded that Julien had met his burden of proving

his continued entitlement to benefits under the State Act. It is well established that

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

6
See Plaintiff’s Exhibit 4.
7
See Plaintiff’s Exhibit 8.
8
See Plaintiff’s Exhibit 19.

10

them can never be manifestly erroneous or clearly wrong.” Foster, 811 So.2d at

1162. After having considered the record in its entirety, including all of the medical

records the parties submitted, we are unable to say that the WCJ erred in awarding

Julien compensation and medical benefits. Therefore, the defendants’ second

assignment of error is without merit.

ANSWER TO APPEAL

Julien filed an answer to appeal seeking additional attorney fees and costs for

having to defend the appeal. The defendants filed a motion to dismiss Julien’s

answer to appeal, claiming that the answer was untimely because it had not been filed

“not later than fifteen days after the return day or the lodging of the record whichever

is later.”9 In this case, the latter of those two dates was the notice of lodging, which

was mailed to the parties on April 30, 2010. Because Julien’s answer was not

postmarked until June 14, 2010, it will be dismissed as having been untimely filed.

DECREE

For the foregoing reasons, we affirm the October 30, 2009 judgment of the

workers’ compensation judge in favor of Harold Julien and against Dynamic

Industries, Inc. and Louisiana Workers’ Compensation Corporation. We dismiss the

answer to appeal Harold Julien filed as having been untimely filed. All costs of this

appeal are assessed against the defendants.

JUDGMENT AFFIRMED. ANSWER TO APPEAL DISMISSED.

9
See La.Code Civ.P. art. 2133.

11