Edward L. Williams, Sr. v. Pilgrim's Pride Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-59

EDWARD L. WILLIAMS, SR.

VERSUS

PILGRIM’S PRIDE CORPORATION

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 2
PARISH OF NATCHITOCHES, NO. 08-21588
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy, Judges.

REVERSED IN PART AND AFFIRMED
AS AMENDED IN PART.

M. Blake Monrose
Hurlburt, Monrose, Dartez & Ernest
P. O. Drawer 4407
Lafayette, LA 70502
(337) 237-0261
Counsel for Defendant/Appellant:
Pilgrim’s Pride Corporation

George A. Flournoy
Flournoy & Doggett (APLC)
P. O. Box 1270
Alexandria, LA 71309
(318) 487-9858
Counsel for Plaintiff/Appellee:
Edward L. Williams, Sr.

DECUIR, Judge.

Employer appeals a judgment of the workers’ compensation judge awarding

claimant temporary total disability and supplemental earnings benefits, medical

expenses, penalties, and attorney fees. Claimant answers the appeal seeking

additional benefits and attorney fees.

FACTS

Edward Williams was employed as a feed truck driver by Pilgrim’s Pride in

Natchitoches, Louisiana. On September 1, 2008, he completed his day’s work,

parked the company truck, and went to the employee parking lot at approximately

9:00 p.m. He then got in his private vehicle and exited the employee parking lot

entering a roadway connecting to Highway 1. As he approached Highway 1, a pipe

gate, propelled by Hurricane Gustav winds, swung into the roadway and entered the

windshield of Williams’ vehicle and struck him on the back of his right shoulder and

the back of his head.

Williams was treated at Natchitoches Regional Medical Center and Willis-

Knighton/Pierremont for post-concussion syndrome and a partial tear of the rotator

cuff. On January 8, 2009, Dr. Michael Brunet indicated that Williams’ shoulder was

sufficiently healed that he could work. Williams also sought psychological treatment

from Dr. James Quillin for cognitive difficulties associated with the post-concussion

syndrome. Dr. Quillin released Williams to restricted work on May 28, 2009.

Williams claimed to be temporarily totally disabled from September 1, 2008

until his May 28, 2009 release by Dr. Quillin. He also claimed entitlement to

supplemental earnings benefits and continued treatment by Dr. Quillin thereafter.

Pilgrim’s Pride contested his claims and the matter came to trial. The workers’

compensation judge entered a judgment and amended judgment that found:

1. Williams sustained accidental disabling work injuries in the course
and scope of his employment.

2. Williams’ average weekly wage is $784.82.

3. Dr. Quillin’s treatment has been and is medically reasonable and
necessary and Pilgrim’s Pride is responsible for it.

4. Williams is entitled to TTD from September 2, 2008 until May 28,
2009.

5. Williams is entitled to SEB’s based on zero earnings from May 29,
2009 through July 17, 2009 and continuing thereafter in accord with
23:1221 (3).

6. Williams is not entitled to payment for hydrocodone expenses.

7. Pilgrim’s Pride must pay medical expenses listed without fee
schedule discount.

8. Pilgrim’s Pride is to pay $8,000.00 in penalties, $12,000.00 in
attorney fees, and all costs.

9. Pilgrim’s Pride is to pay Rite Aid medication expenses of $238.98
plus legal interest.

10. Williams’ claims for 23:1201 (I) sanctons are denied.

11. Pilgrim’s Pride’s request for medical offset is denied except for
credit of $121.88 related to Pierremont Internal Medical Associates.

Pilgrim’s Pride lodged this appeal and Williams answered.

COURSE AND SCOPE OF EMPLOYMENT

Pilgrim’s Pride argues that the trial court erred in concluding that Williams

suffered an accident in the course and scope of his employment. Specifically, they

argue that he was leaving work at the time of the alleged accident and, therefore, he

is not entitled to compensation benefits.

In Posey v. NOMAC Drilling Corp., 44,428, p. 3-10 (La.App. 2 Cir. 8/12/09),

16 So.3d 1211, 1214-1217, the second circuit discussed this issue at length saying:

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An employee is entitled to compensation benefits if he receives
a personal injury by accident arising out of and in the course of his
employment. LSA-R.S. 23:1031(A); McLin v. Industrial Specialty
Contractors, Inc., 2002-1539 (La.7/2/03), 851 So.2d 1135. The
requirement that an employee’s injury occur “in the course of”
employment focuses on the time and place relationship between the
injury and the employment. McLin, supra; Weber v. State, 93-0062 (La.
4/11/94), 635 So.2d 188. An accident occurs in the course of
employment when the employee sustains an injury while actively
engaged in the performance of his duties during work hours, either on
the employers’ premises or at other places where employment activities
take the employee. McLin, supra, Mundy v. Dept. of Health and Human
Resources, 593 So.2d 346 (La.1992). The requirement that an
employee’s injury “arise out of” the employment relates to the character
or origin of the injury suffered by the employee and whether this injury
was incidental to the employment. McLin, supra; Williams v. Regional
Transit Authority, 546 So.2d 150 (La.1989).

A workers’ compensation claimant has the burden of proving, by
a preponderance of the evidence, that the disability suffered is related to
an on-the-job injury. Modicue v. Graphic Packaging, 44,049 (La.App.
2d Cir.2/25/09), 4 So.3d 968; Taylor v. Columbian Chemicals, 32,411
(La.App. 2d Cir.10/27/99), 744 So.2d 704. The question of whether a
claimant is entitled to compensation benefits is a question of fact, and
a WCJ’s determination may not be disturbed on appeal absent manifest
error. Morrison v. First Baptist Church of West Monroe, 44,189
(La.App. 2d Cir.4/8/09), 7 So.3d 873; Jones v. Hollywood Casino
Shreveport, 42,819 (La.App. 2d Cir. 12/5/07), 972 So.2d 1189. Only
when documents or objective evidence so contradict the witness’s story,
or that story itself is so internally inconsistent or implausible on its face
that a reasonable fact finder would not credit it, may the appellate court
find manifest error. Taylor, supra; Sistler v. Liberty Mutual Ins. Co.,
558 So.2d 1106 (La.1990).

....

Generally, injuries sustained by an employee while traveling to
and from work are not considered to have occurred within the course of
employment and, therefore, are not compensable under the Workers’
Compensation Act. McLin, supra; Brown v. Southern Ingenuity, Inc.,
44,082 (La.App. 2d Cir.2/25/09), 4 So.3d 974. This rule, often referred
to as the “going-and-coming rule,” is premised on the theory that,
ordinarily, the employment relationship is suspended from the time the
employee leaves his work to go home until he resumes his work. McLin,
supra; Yates v. Naylor Indus. Services, Inc., 569 So.2d 616 (La.App. 2d
Cir. 1990), writ denied, 572 So.2d 92 (La.1991).

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However, the well-established “going-and-coming rule” is
subject to the following exceptions recognized by the jurisprudence: (1)
if the accident occurred on the employer’s premises; (2) if the employee
was deemed to be on a specific mission for the employer; (3) if the
employer had interested himself in the transportation of the employee as
an incident to the employment agreement either by contractually
providing transportation or reimbursing the employee for his travel
expenses; (4) if the employee was doing work for his employer under
circumstances where the employer’s consent could be fairly implied; (5)
if the employee was injured while traveling to and from one work site
to another; (6) if the employee was injured in an area immediately
adjacent to his place of employment and that area contained a distinct
travel risk to the employee (“the threshold doctrine”); or (7) if the
operation of a motor vehicle was the performance of one of the duties of
the employment of the employee. L.J. Earnest Const. v. Cox, 30,506
(La.App. 2d Cir. 5/13/98), 714 So.2d 150; Yates v. Naylor Indus.
Services, Inc., 569 So.2d 616 (La.App. 2d Cir. 1990), writ denied, 572
So.2d 92 (La.1991). Whether an exception applies is a question of fact.
L.J. Earnest Const., supra.

The “threshold doctrine” generally involves a special risk
attributable to the location of the work premises that is different from
the risks to which the general traveling public is exposed or that is more
aggravated in the area adjacent to the employer’s premises than
elsewhere. Mundy, supra. Under this doctrine, an employee who meets
with an accident not on his or her employment premises while traveling
to and from work, can recover if he or she successfully proves that (1)
a distinctive travel risk exists for the employee in going to or coming
from work, and (2) the risk exists immediately adjacent to his or her
place of work. Robinson v. Brown, 35,430 (La.App. 2d Cir. 12/19/01),
803 So.2d 396, writ denied, 2002-0912 (La. 3/22/02), 811 So.2d 924;
Templet v. Intracoastal Truck Line Inc., 255 La. 193, 230 So.2d 74
(1969).

In this case, our review of the record revealed no evidence to indicate that

Williams was on a mission for Pilgrim’s Pride at the time of the accident. In fact, the

evidence shows that Williams had completed his shift. Williams was driving his

personal vehicle at the time of the accident and was not on a mission or returning

from a mission for Pilgrim’s Pride at the time of the accident. However, the trial

court found that the alleged accident occurred on Pilgrim’s Pride’s property. While

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Pilgrim’s Pride disputes this finding, our review of the record reveals no manifest

error on the part of the workers’ compensation judge.

Pilgrim’s Pride also argues that the trial court erred in finding the accident

happened as described by Williams. While we can see how Pilgrim’s Pride might

find the scenario implausible, we do not agree that it is impossible. Accordingly we

cannot say the workers’ compensation judge’s determination is manifestly erroneous.

AVERAGE WEEKLY WAGE

Pilgrim’s Pride next contends that the workers’ compensation judge erred in

calculating Williams’ average weekly wage as $784.42. Pilgrim’s Pride contends the

actual calculation should be $762.70. Williams answered this appeal seeking an

increase of the average weekly wage to $787.89. Neither Pilgrim’s Pride nor

Williams point to any specific error of law made by the workers’ compensation judge

in reaching the average weekly wage of $784.42.

Our review of the record reveals that Williams was primarily paid by the load.

However, he also received some hourly wages for overtime, safety meetings, and

holidays. The hourly rate for these was sometimes determined by extrapolating from

a projected number of anticipated loads and other times by some other method not

clearly defined. Under these circumstances, and based on our own calculations, we

find no error in the workers’ compensation judge’s determination that Williams’

average weekly wage was $784.42. This assignment has no merit.

WORKERS’ COMPENSATION FEE SCHEDULE

Pilgrim’s Pride argues that the workers’ compensation judge erred in ordering

it to pay Williams’ medical bills without benefit of the workers’ compensation fee

schedule. We agree.

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There is no statutory authorization for the workers’ compensation judge’s

ruling, and this case is distinguishable from Smith v. Roy O. Martin Lumber Co.,

03-1441 (La.App. 3 Cir. 4/14/04), 871 So.2d 661, writ denied, 04-1311 (La. 9/24/04),

882 So.2d 1144. In Smith, the claimant was forced to pay for his own medical

expenses because of the employer’s refusal. Williams did not have to bear that

burden in this case. Accordingly, we reverse the judgment of the workers’

compensation judge insofar as it orders Pilgrim’s Pride to pay Williams’ medical bills

“without fee schedule discount.”

MEDICAL EXPENSE OFFSET

Pilgrim’s Pride alleges the workers’ compensation judge erred in denying it an

offset for payments made by Blue Cross as provided for in La.R.S. 23:1212. We

agree.

The workers’ compensation judge found that Pilgrim’s Pride failed to prove

any payments other than one to Piermont Internal Medical Associates for a total offset

of $121.88. See Lemons v. Georgia Pacific Corp., 42,950 (La.App. 2 Cir. 2/13/08),

976 So.2d 307, writs denied, 08-587, 08-590 (La. 5/2/08), 979 So.2d 1288, 1289;

Authement v. Wal-Mart, 02-2434 (La.App. 1 Cir. 9/26/03), 857 So.2d 564. After

reviewing the record, we find that Pilgrim’s Pride paid 75% of Williams’ insurance

premium. Accordingly, we amend the judgment of the workers’ compensation judge

to grant Pilgrim’s Pride the total medical offset requested which requires an

additional credit of $8,853.00 (75% x $11,804.00) for payments made by Blue Cross

to Willis Knighton Medical Center and the claimant.

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RITE-AID BILL

Pilgrim’s Pride claims the workers’ compensation judge erred in finding it

liable for a Rite-Aid bill in the amount of $232.98. After reviewing the evidence

submitted, we find no manifest error. This assignment has no merit.

INDEMNITY BENEFITS

Pilgrim’s Pride contends the workers’ compensation judge erred in finding

Williams entitled to temporary total disability benefits. In the alternative, Pilgrim’s

Pride argues that no TTD should be owed after January 8, 2009. At that time, Dr.

Brunet indicated that Williams’ shoulder injury no longer prevented him from

working.

In order to prove entitlement to temporary total disability benefits or to

permanent total disability benefits, a claimant must demonstrate by clear and

convincing evidence that he is physically unable to engage in any employment,

including working while in any pain. La.R.S. 23:1221(1)(c) and (2)(c). Disability

is a question of fact. Jones v. Universal Fabricators, 99-1370 (La.App. 3 Cir.

2/9/00), 758 So.2d 856, writ denied, 00-742 (La. 5/12/00), 762 So.2d 13.

After reviewing the record, we find no error in the workers’ compensation

judge’s award of TTD benefits up until Dr. Quillin’s May 28, 2009 release.

However, beyond that point we find the evidence does not support supplemental

earnings benefits. An employee is entitled to receive supplemental earnings benefits

if he sustains a work-related injury that results in his inability to earn ninety percent

(90%) or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). Initially, the

employee bears the burden of proving, by a preponderance of the evidence, that the

injury resulted in his inability to earn that amount under the facts and circumstances

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of the individual case. Freeman v. Poulan/Weed Eater, 93-1530 (La. 1/14/94), 630

So.2d 733. We find no evidence establishing that supplemental earnings benefits are

due to Williams.

Accordingly, the judgment of the workers’ compensation judge is reversed

insofar as it orders the payment of SEB’s.

DIRECT PAYMENTS TO NON-PARTY MEDICAL PROVIDERS

In his answer, Williams alleges that there is a conflict between the circuits and

within this circuit regarding whether medical expenses should be paid to the claimant

or directly to the medical providers. Williams bases his argument on the cases of

Rosella v. DeDe’s Wholesale Florist, 607 So.2d 1055 (La.App. 3 Cir. 1992) and

Gentile v. Baton Rouge Gen. Med. Ctr., 95-0348 (La.App. 1 Cir. 11/9/95), 665 So.2d

422, arguing that a judgment cannot grant relief or determine rights of entities not

party to the litigation.

We are not persuaded by this argument. The trial court judgment does not

grant relief to the non-party medical providers or determine their rights. It merely

orders Pilgrim’s Pride to pay the designated expenses. This is consistent with recent

cases in this circuit. See Moss v. Tommasi Constr., Inc., 09-1419 (La. App. 3 Cir.

5/5/10), 37 So.3d 492, writs denied, 10-1243, 10-1306 (La. 9/17/10) 45 So.3d 1054,

1057; Johnson v. Conagra Poultry Co., 09-646 (La.App. 3 Cir. 12/9/09), 26 So.3d

982, writ denied, 10-350 (La. 4/16/10), 31 So.3d 1067.

Finally, with regard to Williams’ question regarding who gets legal interest on

medical expenses, we find that the legal interest is payable to the claimant unless

owed to the provider under the terms of its agreement with the claimant.

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PENALTIES AND ATTORNEY FEES

Pilgrim’s Pride contends the workers’ compensation judge erred in awarding

penalties and attorney fees. Williams answers, seeking an increase in attorney fees

for work on this appeal.

Penalties and attorney fees are not due to a claimant where the employer has

a bona fide dispute as to whether the employee is entitled to benefits. Willis v. Alpha

Care Home Health, 01-638 (La. 6/15/01), 789 So.2d 567. Additionally, an employer

will not be penalized for bringing a close factual or legal issue to the court for

resolution. Granger v. Nelson Logging, 96-223 (La.App. 3 Cir. 12/4/96), 685 So.2d

400.

In this case we find the workers’ compensation judge erred in awarding

penalties and attorney fees. The fact that Williams’ accident occurred after his work

hours, outside of the Pilgrim’s Pride parking lot, in his personal vehicle, gave rise to

legal questions regarding whether the accident was within the course and scope of his

employment. The only evidence offered that Pilgrim’s Pride owned the roadway or

the gate were photographs of the Pilgrim’s Pride sign and gate near the accident

scene. Under the circumstances, Pilgrim’s Pride should not be penalized for bringing

the issue to court. Accordingly, the judgment of the workers’ compensation judge

awarding penalties of $8,000.00 and attorney fees of $12,000.00 is reversed.

Likewise, Williams’ prayer for additional attorney fees on appeal is denied.

DECREE

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

is reversed insofar as it orders Pilgrim’s Pride to pay medical expenses without

benefit of the workers’ compensation fee schedule, awards supplemental earnings

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benefits, and grants penalties and attorney fees. The judgment is amended to grant

Pilgrim’s Pride the full medical offset requested and affirmed. In all other respects

the judgment is affirmed. All costs of these proceedings are taxed equally between

the parties.

REVERSED IN PART AND AFFIRMED AS AMENDED IN PART.

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