Michael Broussard v. Country Club Auto Repair, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1116

MICHAEL BROUSSARD

VERSUS

COUNTRY CLUB AUTO REPAIR

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DIST. 03
PARISH OF CALCASIEU, NO. 07-08030
HONORABLE SAM L. LOWERY
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED AND RENDERED.

Mark Zimmerman
4216 Lake Street
Lake Charles, LA 70605
(337) 474-1644
COUNSEL FOR PLAINTIFF/APPELLEE:
Michael Broussard

Kathleen W. Will
Briney, Foret & Corry, L.L.C.
P. O. Drawer 51367
Lafayette, LA 70505-1367
(337) 237-4070
COUNSEL FOR DEFENDANT/APPELLANT:
Country Club Auto Repair

PETERS, J.

The defendant in this workers’ compensation litigation matter, Country Club

Auto Repair, Inc. (Country Club Auto Repair), a Lake Charles, Louisiana automotive

body shop, appeals the judgment of the workers’ compensation judge (WCJ) which

found that the plaintiff, Michael Broussard, suffered a work-related accident and

which awarded him weekly indemnity benefits, reasonable medical treatment, and

statutory penalties and attorney fees. Mr. Broussard answered the appeal seeking an

additional attorney fee award for work performed by his attorney on appeal. For the

following reasons, we affirm the WCJ judgment in all respects and render judgment

in favor of Mr. Broussard and against Country Club Auto Repair in the amount of

$5,000.00 as attorney fees for work performed by Mr. Broussard’s counsel on appeal.

DISCUSSION OF THE RECORD

Mr. Broussard suffered a work-related injury on July 27, 2007, while working

as a body technician for Country Club Auto Repair.1 The accident occurred when

a jack collapsed and caused an automobile to fall on Mr. Broussard as he was

attempting to push the tires back onto a frame-straightening machine from underneath

the fender.

Mr. Broussard reported to Mike Crisp, his immediate supervisor, but Mr. Crisp

did not take the report seriously. When Mr. Broussard requested access to medical

care the next day, Mr. Crisp rejected his request. Mr. Broussard then approached

Wesley Berlin, the company manager, with his claim and was immediately fired.

Two days after the accident, Mr. Broussard presented himself to the LSU -

W. O. Moss Regional Emergency Room (Moss Regional) in Lake Charles,

complaining of pain in his right shoulder, right scapula, neck, and lower back. The

1
The WCJ rejected the employer’s assertion that a compensable accident did not occur and
that issue is not before us on appeal.

emergency room personnel examined him, took x-rays of his right shoulder and knee,

prescribed pain medication and muscle relaxers, and told him to follow up with an

orthopedic surgeon.

Mr. Broussard returned to the Moss Regional emergency room on August 7,

2007, again complaining of pain in his right knee, neck, and back. He was again

given pain medication and was told to return if there was no improvement. On that

day, he saw Dr. Harpal Benipal, an internist at Moss Regional’s outpatient clinic and

his primary care physician. X-rays of Mr. Broussard’s shoulder and knee were

basically negative, but an x-ray of his lumbar spine revealed an old anterior

compression fracture at L2. At various times thereafter, Dr. Benipal prescribed Mr.

Broussard pain medication for his back and neck pain and placed him on anti-

depressants for depression. On May 20, 2008, Dr. Benipal referred Mr. Broussard to

LSU for pain management based on his chronic lower back and neck pain. In

association with this referral, he issued a no work excuse for a three-month period

commencing that day.

Three days after he presented himself to the emergency room on August 7,

2007, Mr. Broussard was involved in a serious automobile accident wherein he

received additional injuries. Mr. Broussard was treated at Moss Regional for this

incident as well when he presented himself to the emergency room complaining of

neck, back, right leg, and left forearm pain. The emergency room physician

concluded that Mr. Broussard suffered from an acute lumbar sprain and from a

lacerated left elbow. He received stitches in his left forearm, was given pain

medication, and released.

2

The next day, Mr. Broussard sought treatment at the Louisiana State University

Health Sciences Center’s Emergency Care Center in Shreveport, Louisiana (LSU

Shreveport). There, he complained of blood in his urine, pain in his chest, left foot,

and right ankle, and an abrasion to his lower right leg. X-rays and CT scans were

performed, which revealed a right inguinal hernia, transverse process fractures at T1,

L2, and L3 on the left, and two fractured ribs on his left side. After a negative

assessment by the Neurosurgery Department, Mr. Broussard was released to return

home.

On August 15, 2007, Mr. Broussard returned to LSU Shreveport after his

family reported him being disoriented and hallucinating after he abruptly stopped his

pain medications. He was hospitalized for five days while undergoing evaluation by

the psychiatry department. He was discharged pursuant to three diagnoses on August

21, 2007: delirium secondary to benzodiazepine withdrawal, hypertension, and major

depressive disorder.

On October 3, 2007, Mr. Broussard filed a disputed claim for compensation

against his employer seeking indemnity benefits and medical treatment as well as

penalties and attorney fees for Country Club Auto Repair’s failure to provide these

benefits. After issue was joined, the WCJ authorized a one-time evaluation by Dr.

Dale Bernauer, a Lake Charles orthopedic surgeon.

Trial on the merits initially occurred on April 8, 2009. On July 10, 2009, the

WCJ rendered judgment finding that Mr. Broussard had suffered a work-related

accident on July 25, 2007, and awarded him weekly temporary total disability benefits

(TTD) of $469.52 payable from the date of the accident until modified in the future.

The WCJ also awarded Mr. Broussard all reasonable and necessary medical treatment

3

as might be determined by Dr. Bernauer and awarded him penalties of $2,000.00 for

his employer’s failure to pay indemnity benefits, $2,000.00 for his employer’s failure

to provide medical benefits, and $11,800.00 in attorney fees.

Thirteen days later, on July 23, 2009, Country Club Auto Repair filed a motion

for new trial, asserting that it had acquired evidence of fraudulent statements made

by Mr. Broussard during his testimony at trial. Country Club Auto Repair

subsequently amended its answer to formally raise allegations of fraud on the part of

Mr. Broussard. Over Mr. Broussard’s objections and his own reservations, the WCJ

granted the employer’s motion for new trial and heard the matter a second time on

January 27, 2010. The only changes in the judgment resulting from the second trial

related to the nature of the weekly benefit and the amount of the attorney fee. Instead

of awarding TTD benefits, the WCJ changed the award to supplemental earning

benefits (SEBs) with a zero rate earning capacity. Additionally, the WCJ increased

the attorney fee award by $5,000.00 to $16,800.00.

Country Club Auto Repair suspensively appealed the WCJ judgment, asserting

five assignments of error:

1. The Trial Court erred in not finding fraud under 23:1208 by finding that
plaintiff did not deliberately make false statements under oath about his
ability to work, his ability to perform activities, and the child support
lien in order to obtain workers’ compensation benefits.

2. The Trial Court erred in finding that the injuries claimed by plaintiff
were caused by the alleged work accident of July 25, 2007.

3. The Trial Court erred in not finding that the subsequent motor vehicle
accident of August 10, 2007 was the intervening cause of plaintiff’s
disability and medical treatment.

4. The Trial Court erred in finding plaintiff to be entitled to disability
benefits from July 25, 2007 to the present since plaintiff failed to prove
disability related to the work accident.

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5. The Trial Court erred in assessing penalties and attorney fees against the
employer because the employer had reasonably controverted the claim.

Mr. Broussard answered this appeal, seeking an additional award of attorney

fees for the work his counsel has performed on appeal.

OPINION

The standard of review applying to factual findings in workers’ compensation

matters is the manifest error—clearly wrong standard. Vidrine v. Teche Elect.

Supply, L.L.C., 08-1287 (La.App. 3 Cir. 4/1/09), 6 So.3d 1012, writ denied, 09-964

(La. 6/19/09), 10 So.3d 739.

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], 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. [6/27/03]), 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.

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

La.R.S. 23:1208 Fraud Defense

Country Club Auto Repair’s first assignment of error relates to statements

made by Mr. Broussard in his testimony at the April 8, 2009 trial. Mr. Broussard

testified that he was unable to return to work because he could not bend repetitively,

maintain a bent position, or put weight on his knee. Country Club Auto Repair bases

its fraud defense on surveillance videos taken by two different investigators over two

periods: July 22-24, 2009, and October 20-23, 2009.

The first surveillance video was filmed by Robert Jerry DeFatta, a private

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investigator and owner of DeFatta & Associates Investigative Services. According

to Mr. DeFatta, he learned that Mr. Broussard might be working at Auto Styling, a

Lake Charles automobile customizing, painting, and body shop owned by Mr. Ray

Guillory, and on July 21, he went to the establishment and spoke with Mr. Guillory

concerning a paint job for his vehicle. In the conversation, he asked Mr. Guillory if

Mr. Broussard was there and was informed that Mr. Broussard had left early that day

but would be there the next day.

During the three days that followed, Mr. DeFatta obtained approximately thirty

minutes of video relating to Mr. Broussard. The video depicts Mr. Broussard

emptying a trash can into a dumpster; talking to the employees working on cars;

talking to customers and inspecting damaged vehicles; climbing into and out of a

semi-truck; helping to unload one tire from the back of a car and rolling it into the

shop; walking around vehicles and writing what appears to be estimates; and bending

into a vehicle for several minutes while rubbing at a stain on the floor or floor matt.

Based on what Mr. Guillory told him and what he observed during the three

days of surveillance, Mr. DeFatta concluded that Mr. Broussard worked for Mr.

Guillory at the Auto Styling business. However, he admitted that he never observed

what Mr. Broussard may or may not have done inside the shop itself and that he never

saw Mr. Broussard perform any heavy-duty body work.

The second surveillance video was filmed by Wallace Dempsey Young, a

private investigator with Littleton’s Claims Services in Lake Charles, and an

associate. Mr. Young testified that they were unable to obtain any video on October

21 because Mr. Broussard remained in the office on that day, and they could not see

what he was doing. He testified that on October 22, he observed Mr. Broussard

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working with another employee on a fender and in the detail area. However, even

then, he was only able to see Mr. Broussard walking in and out of the shop area as he

could not clearly observe the area from his surveillance position. On October 23, the

most he saw was Mr. Broussard working in the detail area and helping sand and

change a mirror on a truck.

Mark Perkins, the owner of Master Mechanics, a Lake Charles automobile

mechanics shop, testified that he observed Mr. Broussard at the former Auto Styling

location leased from him between 2006 and 2008, but admitted that he only saw Mr.

Broussard there sporadically and that he never saw him perform any physical labor;

rather, he acted more in an advisory role. He further testified that Mr. Broussard

wrote approximately five estimates for him at no cost in either 2007 or 2008.

On the other hand, Paul Arceneaux, a friend of both Mr. Broussard and Mr.

Guillory and the father of Mr. Broussard’s girlfriend, testified that he was present in

Mr. Guillory’s business establishment several times per week for two to three weeks

beginning in July 2009, assisting Mr. Guillory with a frame machine he had sold him.

During his visits to the shop, he never saw Mr. Broussard working, although he

acknowledged that Mr. Broussard might have dropped by while he was there.

When called to testify, Mr. Guillory acknowledged that he had known Mr.

Broussard since childhood and that Mr. Broussard often stopped by the shop when

he was unemployed, but he denied ever employing Mr. Broussard. He stated that

when Mr. Broussard would drop by, he would perform little odds and ends, run

errands, or render him any assistance he could—but as a personal favor and not as an

employee. According to Mr. Guillory, the only time he paid Mr. Broussard was

sometime before June or July of 2009 when he paid him $300.00 for assistance in

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writing an estimate for a motor home. Past that payment, the most Mr. Guillory did

for Mr. Broussard was to repay his kindness in helping out around the shop by

purchasing him lunch from time to time.

Mr. Guillory did acknowledge that Mr. Broussard has a key to the shop, but he

denied that he had the responsibility of opening the shop each morning. That job was

assigned to an employee of the shop, Carlton Foreman, although he acknowledged

that he would not mind if Mr. Broussard were to open the shop from time to time.

With regard to his conversation with Mr. DeFatta, he acknowledged that he

recalled being visited by the investigator. He stated that Mr. DeFatta claimed to be

hunting someone to perform insurance work for an insurance company he

represented. When Mr. DeFatta asked him if he had anyone who could help him if

he got behind in his work, he replied that his friend, Mr. Broussard, could assist him

in writing estimates. According to Mr. Guillory, he brought up Mr. Broussard’s name

to the investigator to make him feel comfortable about doing business with Auto

Styling. However, he emphatically denied that Mr. Broussard actually wrote

estimates for Auto Styling.

Mr. Guillory also acknowledged that he loaned Mr. Broussard a truck owned

by him and his brother. However, he testified that the loan had nothing to do with his

business and was intended to provide Mr. Broussard with personal transportation for

him and his daughter. The vehicle was not being used, according to Mr. Broussard,

and it was better to have it driven than to allow it to sit around unused.

Carlton Foreman, the man whom Mr. Guillory testified was assigned the task

of opening the business every day, testified that Mr. Broussard was often at the Auto

Styling shop. However, he denied that Mr. Broussard worked at the shop. Instead,

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according to Mr. Foreman, Mr. Broussard would do little more than sit around, drink

coffee, and visit with Mr. Guillory and others who might be present. According to

Mr. Foreman, body work and detailing were his responsibility, but because he was

just beginning his career, he welcomed pointers from the more experienced Mr.

Broussard.

At the second trial, Mr. Broussard testified that he has not worked since his

July 25, 2007 accident, but acknowledged that he did spend time at the Auto Styling

shop. He acknowledged providing Mr. Guillory with advice, handing him tools,

picking up lunches, and running errands. However, he denied exercising any

supervising authority over Mr. Guillory’s employees, although he did acknowledge

advising them concerning a particular problem when asked. He also acknowledged

that on occasion, he examined vehicles for Mr. Guillory and provided him with

information to be used in completing estimates on the cost of repair. Mr. Guillory

handled the actual calculations involved in preparing the estimate because although

he had previously owned a body shop for eight years, Mr. Broussard could only

approximate the cost of repair because he did not have the expertise to enter the data

into a computer to properly calculate the repair cost.

Other than the $300.00 testified to by Mr. Guillory, Mr. Broussard denied

receiving income from Mr. Guillory. Additionally, he stated that the $300.00

payment occurred after the initial trial, and, therefore, he did not fail to mention it in

his testimony because it had yet to happen. He acknowledged having a key to Mr.

Guillory’s shop as well as possession of Mr. Guillory’s truck.

Country Club Auto Repair also asserts that Mr. Broussard made false

statements in the first trial concerning a child support lien against him. In his

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deposition, he had stated that he was subject to a child support lien, but at the first

trial, he had testified that he and his former wife had worked out the support issue and

that he only owed her a couple of thousand dollars. At the second hearing, Mr.

Broussard acknowledged that he still had a child support lien against him, that it was

in effect at the time of the first trial, that it amounted to approximately $30,000.00,

and that his former wife was aware of his claim against his former employer.

At the end of the second trial, the WCJ denied the employer’s fraud claim in

its oral reasons for judgment, stating in pertinent part that:

The heart of the defendant’s argument, especially his request for
a new trial, is the accusation of fraud.

I listened carefully to the defendant’s position on this matter and
have concluded that Mr. Broussard was seen standing, walking, and
sitting in a body shop during the period he was [unable] to work. Not
a single witness that I heard saw him doing any physical labor in what
looked like to be rather sporadic visits to his friend’s automobile repair
shop. No surveillance showed him painting a car. Nothing showed him
with a hammer in his hand. He did seem to carry a clipboard on
occasion, but nobody submitted any evidence that he was ever paid a
salary or a commission or anything resembling that on a regular fashion.

Louisiana Revised Statutes 23:1208(A) provides in, pertinent part, that “[i]t

shall be unlawful for any person, for the purpose of obtaining or defeating any benefit

or payment under the provisions of this Chapter, either for himself or for any other

person, to willfully make a false statement or representation.” In order to establish

fraud, an employer must prove: (1) a false statement or misrepresentation by the

employee, (2) that was willfully made, and (3) made for the purpose of obtaining

workers’ compensation benefits. Campbell v. City of Leesville, 07-1061 (La.App. 3

Cir. 1/30/08), 974 So.2d 908, writ denied, 08-491 (La. 4/25/08), 978 So.2d 366.

Proof of fraud results in an employee’s forfeiture of the right to recover any workers’

compensation benefits. La.R.S. 23:1208(E).

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After reviewing the evidence, including the surveillance video, we find no

manifest error in the WCJ’s conclusion that Country Club Auto Repair failed to

establish fraudulent actions by Mr. Broussard sufficient to trigger the forfeiture

provisions of La.R.S. 23:1208(E). In all of the surveillance videos, Mr. Broussard

arrived before the shop employees and opened the shop only once. His girlfriend was

present with him at the time, and the video does not establish whether she or Mr.

Broussard actually opened the door. At all times when he was being videoed at the

shop, Mr. Broussard wore shorts and a tee shirt. He generally left at or after closing

time; sometimes carried a clip board and appeared to be examining vehicles; was seen

talking to other employees and what appeared to be customers; got down on his knees

and bent down several times; once emptied an office-sized trash can; moved vehicles,

including a semi-truck, around the lot; and he used a palm sander on one occasion to

sand the side of a truck. Still, as pointed out by the WCJ, none of the video depicts

Mr. Broussard performing actual automotive body work, other than the use of the

palm sander on one occasion.

The WCJ obviously found Mr. Broussard to be a credible witness2 as well as

that of the other witnesses testifying on his behalf relative to the fraud issue as the

only thing subsequently changed from the previous judgment was the determination

that Mr. Broussard was capable of performing some type of work. The WCJ is in the

best position to judge the witnesses’ credibility, and we find no manifest error in the

WCJ’s factual findings based on its credibility analysis. We find no merit in this

assignment of error.

2
This was so despite the fact that Country Club Auto Repair presented evidence of Mr.
Broussard’s criminal record in the form of a conviction for carnal knowledge of a juvenile as well
as the inconsistencies of his testimony with regard to the child support lien.

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Cause of Injury

In its next two assignments of error, Country Club Auto Repair argues that the

WCJ erred in finding that Mr. Broussard’s injuries were caused by the July 25, 2007

work accident and in failing to find that the August 10, 2007 car accident intervened

as the cause of his disability and medical treatment.

An employee is entitled to compensation benefits if he or she
suffers a personal injury by an accident arising out of and in the course
of employment. LSA-R.S. 23:1031. This court has stated that under
this statute a successful claimant’s proof must show personal injury
which is the result of an accident, which accident arises out of and in the
course of employment. Guillory v. United States Fidelity & Guaranty
Insurance Company, 420 So.2d 119, 122 (La.1982). The chain of
causation required by the statutory scheme as adopted by the legislature
in LSA-R.S. 23:1031 is that the employment causes the accident, the
accident causes injury, and the injury causes disability. Id. The
employee has the burden of proving, by a preponderance of the
evidence, that the resulting disability is related to an on-the-job injury.
See Chapman v. Belden Corporation, 428 So.2d 396, 400 (La.1983).
(Medical testimony, along with claimant’s testimony, suggested only a
possibility of a causal relation between his employment and his
disability.); see also, Anthony v. BE & K Construction, 32,729 (La.App.
2 Cir. 5/10/00), 760 So.2d 608, writ denied, 2000-1673 (La.9/15/00),
768 So.2d 1280.

Buxton v. Iowa Police Dep’t., 09-520, pp. 11-12 (La. 10/20/09), 23 So.3d 275, 283.

Additionally,

Under certain circumstances an aggravation of an injury initially
sustained at work is regarded as compensable, obligating the employer
to continue paying compensation benefits, even though the aggravation
develops away from the premises and when the claimant is no longer
employed by the employer. Stewart v. Hospitals Affiliates International,
Inc. of Baton Rouge, 404 So.2d 944, 945 (La.1981) (A fall at home was
causally connected to an at-work injury that weakened claimant’s leg.)
The aggravation is regarded as a development of the initial accident
even though the aggravation develops away from the employer’s
premises after employment has terminated. Id. The Louisiana
jurisprudence is consistent with “[m]ost jurisdictions” wherein the
general rule is that “natural consequences that flow from the primary
injury are compensable absent an independent intervening cause.”
(Emphasis supplied.) Karenina M. Darmer, Worker’s Compensation for
Off-Site Aggravation of Employment-Related Injuries-Blackwell v.

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Bostitch, 591 A.2d 384 (R.I.1991), 26 Suffolk U.L.Rev. 529, 532-533
n. 18, citing Hanover Insurance Company v. Allstate Insurance
Company, 554 So.2d 1261, 1264-1265 (La.App. 1 Cir.1989) (Parties
stipulated that the off-the-job automobile accident occurred before
claimant had fully recovered from surgery to his knee necessitated by a
work injury; the surgeon testified the knee was still highly susceptible
to injury.) Commentary has noted that “[i]f, as might be the case with
an automobile accident following the work-related accident, there is no
causal relationship between the two injuries, any complications [ought]
properly to fall outside the employer’s responsibilities.” 13 H.
ALSTON JOHNSON, III, LOUISIANA CIVIL LAW TREATISE:
WORKERS’ COMPENSATION § 236 at 555 (4th ed.2002).

The key question is the relationship between the second injury
and the initial, work-related injury. The courts have held that an
accident occurring away from work is compensable, where the
work-related injury has not healed at the time of the accident, and as
such, rendered the employee susceptible to further aggravating injuries.
See Hughes v. General Motors Guide Lamp Division, 469 So.2d 369,
376 La.App. 2 1985). (Testimony of two physicians, plus that of lay
witnesses, established an “overwhelming preponderance of the
evidence” of a causal relationship between the two injuries.)

Another example is Carter v. Rockwood Insurance Company,
341 So.2d 595 (La.App. 2 Cir.1977), which arose when an employee’s
continued weakness in her leg initiated by an on-the-job accident caused
a fall in the bath tub. The second accident, which resulted during
normal activity, was a natural and anticipatable consequence of the
work-related accident. The work-related injury prevented plaintiff from
catching herself and thereby was a contributing cause of the fall itself;
the work-related injury caused plaintiff to fall with greater force than she
otherwise would have, contributing to the severity of the fall; the
work-related injury had caused osteoporosis of the leg bone and thereby
contributed to the severity of the second injury. The court concluded the
nature of the original knee injury was such that the chance of subsequent
re-injury was a foreseeable risk and consequence. Carter, 341 So.2d at
598-600.

Id. at 283-84 (alterations in original).

In the matter before us, the employer has not appealed the WCJ’s determination

that Mr. Broussard suffered a work-related accident, and, therefore, that issue is not

before us. Thus, the only issue before us is whether the August 10, 2007 automobile

accident intervened to cause Mr. Broussard’s current disability.

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At the outset, we note that there exists very little medical evidence of Mr.

Broussard’s physical condition between the day of the work-related accident and the

automobile accident of August 10, 2007.3 This lack of medical evidence is caused

partially because Country Club Auto Repair fired Mr. Broussard immediately after

he reported his accident and refused, thereafter, to provide him with any medical

treatment other than the one court-ordered evaluation by Dr. Bernauer which took

place after the automobile accident.

Dr. Bernauer did not see Mr. Broussard until May 28, 2008. Mr. Broussard

provided the doctor with a history of the work-related injury as well as the injuries

he sustained in the automobile accident. After performing a physical examination,

Dr. Bernauer ordered MRIs of Mr. Broussard’s lumbar spine, left shoulder, and right

knee. He noted also that Mr. Broussard suffered from a preexisting neck and back

condition.4

Mr. Broussard returned to Dr. Bernauer on June 25, 2008, with continuing

complaints of pain in his right knee, lower back, and left shoulder. The MRIs had not

yet been performed; Dr. Bernauer instructed Mr. Broussard to return a month later for

reevaluation. There is no record that this occurred.

Dr. Gregory Gidman, a Lafayette, Louisiana orthopedic surgeon, examined Mr.

Broussard on September 24, 2008, at Country Club Auto Repair’s request. At that

time, Mr. Broussard complained of a sharp, dull pain in his lower back and right

3
The entire medical record is contained in the treatment Mr. Broussard received from the
Moss Regional emergency room on July 27 and August 7, 2007.
4
Mr. Broussard had a history of back injuries extending as far back as 1998, when he injured
his back after stepping off a pipe rack and falling. This accident prevented him from working for
three years. In 2001, he suffered an abrupt onset of parascapular pain after throwing a bundle of
newspapers. In 2006, he was involved in an automobile accident wherein his vehicle was rear ended
by another. At the time of the work-related accident now before us, he was openly taking pain
medication whenever the pain in his back flared up.

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lateral thigh down to the lateral three toes of his foot, and left shoulder pain,

anteriorly. Mr. Broussard described the back pain to the doctor as varying from

moderate to severe; the knee pain to moderate; and the shoulder pain to moderate.

He told Dr. Gidman that moving and walking made his pain worse but that the pain

was relieved by standing still, stretching, and moving around or lying down.

After conducting an examination and a medical record review, Dr. Gidman

opined a diagnosis of chronic lower back pain, left shoulder strain, and right knee

strain. He found the clinical examinations of Mr. Broussard’s lumbar spine, left

shoulder, and right knee to be essentially normal, with no surgical lesions identified.

Dr. Gidman recommended that Mr. Broussard undergo a self-directed home therapy

program and that he be encouraged to return to work. He said that he would restrict

Mr. Broussard to light duty work initially and that he would restrict him from medium

to very heavy lifting, repetitive prolonged forward stooping, prolonged and/or

repetitive bending, long-lasting unchanged positions, and avoidance of any activities

requiring sudden maximum efforts or exposure to continuous vibratory motions.

Dr. Gidman testified that MRIs of Mr. Broussard’s lower back, left shoulder,

and right knee could be obtained, but he opined that any substantial pathology

identified from the MRIs would likely be a result of the August 10 car accident. Dr.

Gidman stated that he examined post-accident pictures of Mr. Broussard’s car. He

described the “entire central third of the windshield was totally destroyed.” He

further stated that “it would be more probable, due to the significant trauma of his

motor vehicle accident, that any pathology in his knee or lumbar spine would be more

directly related to his motor vehicle accident than his Workers’ Compensation

injury.”

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Dr. Benipal testified to Mr. Broussard’s long history of back pain prior to his

work-related accident. With regard to his current back condition, Dr. Benipal stated

that Mr. Broussard’s injury is related to both his work accident and the August 10,

2007 car accident. However, he declined to give an opinion as to which accident

caused Mr. Broussard’s injury based on his opinion that this determination does not

relate to his specialty of internal medicine. He did state that because of Mr.

Broussard’s past accident history, he is prone to back injuries.

Mr. Broussard testified that while he had the car jacked up on July 25, he was

up underneath the car’s fender well with his shoulder, pushing on the car in order to

move it onto the ramp. When the jack slipped off, he stated that the car fell back on

top of him. He said that he felt pain in his back as a result of this incident, which he

reported to Mr. Crisp. Mr. Broussard testified that when he determined the next day

that he was unable to work, he again reported the injury to Mr. Crisp, and then to Mr.

Berlin, who fired him.

Mr. Broussard testified that when the vehicle fell on him, he immediately felt

pain in his back. He stated that in the August 10, 2007 automobile accident, he hit

the corner post of the car’s passenger-side front windshield with his head and hit the

windshield with his arms. He asserted that, thereafter, his lower back pain became

much more severe, but that in time it improved. However, he stated that the lower

back pain related to his work-related injury remained the same.

With regard to the effect of his prior injuries, Mr. Broussard testified that he

was still taking pain medication as of the time of his work accident. However, prior

to the July 25, 2007 work-related accident, his pain was sporadic.

In his oral reasons for judgment, the WCJ found little variance between the

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evidence presented at the first trial and that introduced at the second trial. The WCJ

stated in part:

The fact is Mr. Broussard had a pre-existing back problem and
that he regularly and rather openly took pain medication while at work
is also information which was readily displayed and previously
discussed.

One of the arguments most strenuously urged by the defendants
centers around the undisputed fact that on August the 10th of 2007,
which was about three weeks or so after the alleged accident at work,
Mr. Broussard was involved in an automobile accident. The employer
insists that even if Mr. Broussard is disabled or injured, then the root
cause of his problem is probably the traffic accident and not the work-
related accident.

Reduced to its barest essentials, the employer’s position is that
Mr. Broussard is attempting to piggy back his automobile injury onto a
workers’ compensation claim. In a word, Mr. Broussard has and is
committing out and out fraud, as the employer sees it.

....

The medical records, even those from the employer’s physician,
paint a picture of a worker with back problems whose situation was
aggravated by a work accident. The motor vehicle accident, according
to the medical records, in all likelihood aggravated his back problems
even more. Employee[’s] counsel is correct in its assertion that no
doctor ever opined that the injury from the work accident had healed, or
even improved, by the time of the auto accident.

The clear inference from these reports is that after the Honda
work incident, his lower back was very vulnerable to aggravation, which
apparently was provided by the auto accident.

There’s no substantive evidentiary support, certainly nothing
persuasive, for the employer’s position that the motor vehicle accident
on August the 10th precludes the claimant from pursuing a workers’
compensation claim for the July 25th incident at work.

After considering the record before us, we cannot say that the WCJ erred in

finding that Mr. Broussard’s injuries were caused by the July 25, 2007 work accident

or that the August 10, 2007 car accident was not an intervening cause of the disability

for which he seeks treatment. In reaching our conclusion, we note that Country Club

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Auto Repair’s efforts to disprove Mr. Broussard’s claim is fatally defective due to the

dearth of medical evidence following the work accident. Because Country Club Auto

Repair refused to provide any medical treatment to Mr. Broussard until ordered to do

so by the WCJ on May 27, 2008, the WCJ was limited to considering Mr. Broussard’s

testimony and Moss Regional’s medical records in determining whether the work

accident caused his lower back injury and the further effect that the August 10

accident had on his lower back. As both of these determinations required the WCJ

to reach decisions as to Mr. Broussard’s credibility (and we have already affirmed

that decision), we will not disturb these reasonable evaluations on appeal.

Accordingly, we affirm the WCJ’s finding that Mr. Broussard’s injuries were a result

of the July 25, 2007 work-related accident. We further affirm the WCJ’s finding that

the August 10, 2007 car accident was not an intervening cause of his disability and

required medical treatment.

Disability

In its next assignment of error, Country Club Auto Repair argues that the WCJ

erred in finding that Mr. Broussard is entitled to indemnity benefits from the date of

his work accident, as he failed to prove a disability as a result of this accident.

Mr. Broussard testified that he has not worked since his accident, as he still

suffers pain in his lower back. He explained that body work includes replacing roofs,

quarter panels, bed sides, cradles, and bumpers—and that this involves heavy lifting

as some bumpers weigh between 100-120 pounds. He did state, however, that he

could perform some light-duty body work such as changing a headlight or using a

sander, so long as these duties did not require standing and squatting too

long—activities that aggravate his back. Additionally, while he stated that he could

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do some bending, repetitive bending causes him excruciating pain. On some days,

according to Mr. Broussard, the pain is so severe that he is forced to remain in bed.

He stated that while he might have three to four decent days, when his back begins

to hurt, the pain can persist for as much as a week at a time. His only relief is bed rest

and constant hot baths.

Since his accident, Mr. Broussard stated that he has only earned $300.00 from

assisting Mr. Guillory with the estimate for a motor home. However, he denied

working for Mr. Guillory. He stated that while at Auto Styling, he sits around, drinks

coffee, talks, and offers advice to Mr. Guillory. He also admitted running some

errands for Mr. Guillory and writing down information for estimates; he denied

completing the estimates. He stated that Mr. Guillory takes the information he has

gathered and enters it into the computer in order to compile the exact amount.

Mr. Broussard testified that his only income since the accident was the $300.00

paid to him by Mr. Guillory and that Country Club Auto Repair has not offered him

vocational rehabilitation assistance or any light duty position.5 If a light duty position

were offered, Mr. Broussard asserted, he would return to work.

With regard to physical restrictions, Dr. Gidman suggested that Mr. Broussard

should be restricted to light duty work, and this would preclude medium to heavy

lifting, prolonged forward stooping, prolonged and/or repetitive bending, long-lasting

unchanged positions, and any activities requiring sudden maximum efforts or

exposure to continuous vibratory motions. Dr. Benipal suggested that on May 20,

2008, he found Mr. Broussard incapable of returning to any type of work and

suggested that he would recommend that he not return to work for at least three

5
It is undisputed that Country Club Auto Repair has paid no weekly benefits and no medical
expenses.

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months.

The WCJ awarded Mr. Broussard TTD benefits based on the evidence

presented at the first hearing. However, after the second hearing, the WCJ changed

Mr. Broussard’s indemnity benefits from TTD benefits to SEBs and based the SEBs

on a zero earning capacity.

Louisiana Revised Statutes 23:1221(3)(a) provides an employee with SEBs if

he proves by a preponderance of the evidence his inability to earn ninety percent or

more of his pre-accident wages as a result of his work accident, under the facts and

circumstances surrounding his claim. Williams v. Averitt Express, Inc., 08-1343

(La.App. 3 Cir. 4/1/09), 7 So.3d 160. Once the employee satisfies his burden, the

burden shifts to the employer to prove that the employee is physically capable of

performing a certain job, that the job was offered to him, or that it was available to

him or within his or the employer’s geographic region. Banks v. Indus. Roofing &

Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551; La.R.S.

23:1221(3)(c)(i). An award of SEBs is a finding of fact, which will not be reversed

on appeal absent a finding of manifest error. Cooper v. St. Tammany Parish Sch. Bd.,

02-2433 (La.App. 1 Cir. 11/7/03), 862 So.2d 1001, writ denied, 04-434 (La. 4/23/04),

870 So.2d 300.

The WCJ’s June 7, 2010 judgment states that Mr. Broussard’s average weekly

wage is $704.24, and Country Club Auto Repair has not appealed that determination.

Based on the light-duty restrictions placed on Mr. Broussard by Dr. Gidman, we find

no error in the WCJ finding that Mr. Broussard was unable to perform the heavy work

required of a body technician. Moreover, the record is devoid of any efforts made by

Country Club Auto Repair to assist Mr. Broussard in returning to gainful

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employment. Rather than helping Mr. Broussard, all of Country Club Auto Repair’s

efforts centered on proving fraud on Mr. Broussard’s part in order to evade its

workers’ compensation obligations. We find no merit in this assignment of error and

affirm the WCJ’s judgment awarding Mr. Broussard SEBs, based on a zero-rate

earning capacity.

Penalties and Attorney Fees

In its final assignment of error, Country Club Auto Repair argues that the WCJ

erred in assessing it with penalties and attorney fees as it reasonably controverted Mr.

Broussard’s claim. We find this assertion by Country Club Auto Repair to be without

any merit. Country Club Auto Repair did nothing to investigate the claimed accident

or to assist Mr. Broussard after he reported his work accident. Instead, it fired him

as soon as he reported his injury. Although it gave no reason for Mr. Broussard’s

termination in the July 26, 2007 statement it presented to him, it later redacted its

records on July 27, to state that it terminated Mr. Broussard due to “[u]nacceptable

quality of work, leaving work without permission, inferior production time[.]” It

further stated that Mr. Broussard “created a scene at the work place after being

term[inated] . . . had to eventually call police to have him escorted off the premisis

[sic] . . .Now is saying he has a WC injury . . . did not report this until after he was

fired[.]”

Louisiana Revised Statutes 23:1201(F) provides for the imposition of penalties

when an employer fails to provide indemnity benefits or medical benefits to its

injured employee and, in this case, all of Country Club Auto Repair’s actions focused

on avoiding its obligations at all costs. We find no error in the WCJ’s award of

$4,000.00 in penalties and $16,800.00 in attorney fees.

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Mr. Broussard’s Answer to the Appeal

We award Mr. Broussard an additional $5,000.00 in attorney fees for the work

performed by his counsel in successfully defending this appeal. Minor v. J. & J.

Carpet, Inc., 10-45 (La.App. 3 Cir. 6/2/10), 40 So.3d 434.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’

compensation judge in all respects. We render judgment in favor of Michael

Broussard and against Country Club Auto Repair, Inc. in the amount of $5,000.00,

said judgment representing an award of attorney fees for legal services rendered by

Mr. Broussard’s counsel on appeal in successfully defending the workers’

compensation judge’s judgment. Finally, we assess all costs of this appeal to Country

Club Auto Repair, Inc.

AFFIRMED AND RENDERED.

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