Kent Normand v. Dresser Industries, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-522

KENT NORMAND

VERSUS

DRESSER INDUSTRIES, INC.

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APPEAL FROM THE
OFFICE OF WORKERS‟ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 07-08419
JAMES L. BRADDOCK, WORKERS‟ COMPENSATION JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED AS AMENDED.

George A. Flournoy
Flournoy & Doggett
Post Office Box 1270
Alexandria, Louisiana 71309-1270
(318) 487-9858
Counsel for Plaintiff/Appellee:
Kent Normand

Mark A. Watson
Stafford, Stewart & Potter
Post Office Box 1711
Alexandria, Louisiana 71309
(318) 487-4910
Counsel for Defendants/Appellants:
Dresser Industries, Inc.
Liberty Mutual Insurance Company

KEATY, Judge.

Dresser Industries, Inc. (Dresser) and its workers‟ compensation insurer,

Liberty Mutual Insurance Company (Liberty Mutual), appeal a judgment rendered

by the workers‟ compensation judge (WCJ) in favor of its former employee, Kent

Normand (Normand), awarding him benefits, reimbursements, penalties, and

attorney fees. Normand answers the appeal. For the following reasons, we amend

the judgment to award Normand an additional $2,000.00 penalty, affirm as

amended, and award Normand $4,000.00 in attorney fees for work done on this

appeal.

FACTS AND PROCEDURAL HISTORY

Normand injured his neck and back in a forklift accident at work in 2005.

Dr. Clark Gunderson, an orthopedic surgeon, performed a lumbar fusion on

Normand in June of 2007. Normand remained under the active care of

Dr. Gunderson until April 16, 2010, when Dr. Gunderson declared that he had

reached maximum medical improvement (MMI).

Normand filed a 1008 Disputed Claim for Compensation on October 31,

2007, alleging that Dresser was guilty of non-payment and/or untimely payment of

his medical and travel expenses. The matter was tried on July 22, 2010. At the

beginning of trial, the parties stipulated that Normand‟s average weekly wage was

not at issue and that Liberty Mutual was Dresser‟s workers‟ compensation insurer

at all times pertinent to this case. They further stipulated that Normand was paid

temporary total disability benefits (TTDs) up until March 31, 2010. In addition, it

was stipulated that if she were called to testify, Liberty Mutual‟s adjuster, Ginger

Neal, would state that Normand‟s indemnity benefits were discontinued on

March 31, 2010, based on deposition testimony given by Normand that he had

taken retirement from Dresser.

The WCJ issued an oral ruling on October 18, 2010. Written judgment was

rendered on October 20, 2010, declaring that: 1) Normand was entitled to TTDs

from April 1 through April 16, 2010; 2) Normand was entitled to supplemental

earnings benefits (SEBs), based on zero earnings, from April 17, 2010, through the

date of trial and continuing thereafter; 3) Dresser was ordered to reimburse

Normand‟s medical travel expenses of $29.93 and the advance payment of

$1,400.00 for Dr. Charles Aprill‟s initial treatment; 4) Dresser was ordered to pay

the remainder of Dr. Aprill‟s bill for treatment of Normand‟s work injuries; 5)

Dresser was ordered to pay Normand $6,000.00 in penalties under La.R.S.

23:1201(F) for its multiple untimely payments of indemnity benefits, failure to pay

for Dr. Aprill‟s treatment, and failure to fully reimburse Normand‟s medical travel

expenses; 6) Dresser was ordered to pay Normand $8,000.00 in penalties under

La.R.S. 23:1201(I) for its arbitrary discontinuation of plaintiff‟s indemnity benefits;

7) Dresser was ordered to pay Normand‟s attorney a $7,500.00 fee under La.R.S

23:1201(J); and, 8) Dresser was assessed with all costs. A partial new trial was

later granted ordering Dresser to reimburse Normand for his medical travel

expenses of $542.24 and otherwise enforcing the earlier judgment.

Dresser now appeals, asserting that the WCJ committed legal error in

holding that it had the burden of proving that Normand had retired. As a result, it

submits that we should perform a de novo review instead of applying the usual

manifest error standard of review. Next, it claims that the WCJ erred in finding

that Normand had not retired within the meaning of La.R.S. 23:1221(3)(d)(iii).

Normand answered the appeal, seeking an increase in La.R.S. 23:1201(F) penalties

and an award of attorney fees for work done on this appeal.1

1
Although Normand also sought an increase in the original attorney fee award in his
answer to appeal, he waived that claim in his brief to this court.
2

DISCUSSION

“Factual findings in workers‟ compensation cases are subject to the manifest

error or clearly wrong standard of appellate review. 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.” Foster v.

Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160,

1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d 784 (citation omitted). On the

other hand, where the WCJ has made a legal error and a complete record is

available, the appellate court must conduct a de novo review. Grillette v. Alliance

Compressors, 05-982 (La.App. 3 Cir. 2/1/06), 923 So.2d 774.

“An injured worker is entitled to receive temporary total disability benefits

from the date of his disabling injury until either party shows a lawful ground for a

change in his status.” Clark v. State, Dep’t of Corrs., 94-168, p. 3 (La.App. 3 Cir.

10/5/94), 643 So.2d 467, 469. “It is well established in Louisiana jurisprudence

that an employer can change temporary total disability benefits to supplemental

earnings benefits only when the employee has been released back to work by his

treating physician.” Id.

“The purpose of SEBs is to compensate the injured employee
for the wage earning capacity he has lost as a result of his accident.”
Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55
(La.1993). An employee is entitled to receive supplemental earnings
benefits (SEBs) 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.Rev.Stat.Ann. § 23:1221(3)(a) (West Supp.1997).
Banks v. Indus. Roofing & Sheet Metal Works, 96-2840, p. 8 (La. 7/1/97), 696

So.2d 551, 556. Louisiana Revised Statutes 23:1221(3)(d) provides, however, that:

The right to supplemental earnings benefits . . . shall in no event
exceed a maximum of five hundred twenty weeks, but shall terminate:
....

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(iii) When the employee retires; however, the period
during which supplemental earnings benefits may be
payable shall not be less than one hundred four weeks.

In Key v. Monroe City School Board, 45,096, p. 6 (La.App. 2 Cir. 3/10/10),

32 So.3d 1144, 1149-50 (citations omitted), the second circuit explained:

The retirement referred to in § 1221(3)(d)(iii) is not resignation from
work because of disability; it refers only to a worker who has no
intention of returning to work regardless of disability. When a worker
has retired from a heavy work duty job but is still willing to take on
light duty employment within the scope of the limitations imposed by
her disability, then that worker is said not to have withdrawn from the
workforce and is not considered retired under § 1221(3)(d)(iii).
In this case, Dresser voluntarily paid Normand TTDs through March 31,

2010, at which time it discontinued his indemnity benefits based upon testimony

given in his July 20, 2009 deposition that he had retired from Dresser on April 1,

2009. Accordingly, it was not paying Normand any benefits at the time of trial.

Normand testified that because a new employee contract was coming up at

Dresser that May of 2009, he chose to retire in April of 2009 rather than risk losing

benefits that he considered to be “good enough” under the existing contract. With

regard to his current condition, Normand stated that he still had pain in his neck

and back, but not nearly as much as he had previously suffered. He unequivocally

stated, however, that none of his residual complaints from the 2005 accident

played any part in his decision to retire. Normand testified that he had looked in

the newspaper for a job that would not hurt his back or his neck and that he had

spoken to a friend several times about working for him delivering automobiles, but

nothing had been available at those times.

Normand‟s girlfriend of four years, Ruby Bordelon, confirmed that

Normand had looked for work since he left Dresser. When asked if Normand had

ever indicated that he never intended to go back to work, she responded, “[n]o.”

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Burden of Proof

In its brief to this court, Dresser asserts that “[a]n employer can challenge a

claimant‟s claim to workers‟ compensation benefits at any time, with the burden on

the claimant to show by „by clear and convincing evidence, unaided by any

presumption of disability‟ the claimant‟s rights to benefits,” citing in support of

that statement La.R.S. 23:1221(2)(c) and Williams v. Midwest Industrial

Contractors, 04-1856 (La.App. 4 Cir. 5/18/05), 905 So.2d 335. Then, based on the

following statement from the WCJ‟s reasons for judgment, “it was not shown that

Mr. Normand had retired,” Dresser claims that the WCJ erred in placing the burden

on it to prove that Normand had retired.

Dresser‟s argument fails for several reasons. First, the portion of the statute

referred to by Dresser above is found in the section concerning permanent total

disability benefits, not supplemental earnings benefits. Second, because Dresser

chose to stop paying indemnity benefits to Normand instead of simply converting

its payment from TTDs to SEBs, Normand was required to prove that he was

entitled to receive benefits and that Dresser‟s discontinuation of those benefits was

arbitrary and capricious. Normand met his initial burden of proof. He showed that

he was entitled to receive TTDs until Dr. Gunderson declared that he had reached

MMI on April 16, 2010, and that he was entitled to receive SEBs thereafter. Only

then did the burden shift to Dresser to prove that Normand had retired under

La.R.S. 23:1221(3)(d)(iii). There is no merit to Dresser‟s contention that the WCJ

applied the wrong burden of proof regarding whether or not Normand had retired.

Accordingly, we will apply the manifest error standard of review in assessing

Dresser‟s second assignment of error.

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Did Normand Retire?

Dresser claims that the WCJ clearly erred in finding that Normand had not

retired within the meaning of La.R.S. 23:1221(3)(d)(iii), arguing that the totality of

the facts and circumstances indicate that Normand retired and has withdrawn from

the work force. It characterizes Normand‟s efforts to find another job as minimal

and unverifiable.

Normand disagrees, pointing to his testimony that he did not completely

withdraw from the work force, that he did not consider himself fully retired, that he

was willing to work, and that he looked for work within the physical limitations set

forth by Dr. Gunderson. Based on the foregoing, Normand submits that the WCJ‟s

factual determination that he had not retired is not manifestly erroneous and should

be upheld.

The WCJ was presented with conflicting testimony and evidence concerning

whether Normand had retired. Ultimately, the WCJ made the factual

determination that Normand had not retired from Dresser. After reviewing the

record in its entirety, we conclude that that factual determination was not

manifestly erroneous or clearly wrong. Accordingly, there is no merit to Dresser‟s

second assignment of error.

In its brief to this court, Dresser complains that regardless of whether we

affirm or reverse the WCJ, the October 20, 2010 judgment does not address the

retirement issue, thereby leaving unresolved the question of whether the judgment

decided the retirement issue for res judicata purposes. The WCJ clearly stated in

its oral reasons for judgment that “it was not shown that Mr. Normand had retired.”

Nevertheless, the written judgment failed to contain that finding of fact, even

though the retirement question was the chief focus of the trial and even though

resolution of that question was central to the judgment that was rendered.
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Accordingly, we amend the October 20, 2010 judgment to include the following:

“IT IS ORDERED, ADJUDGED, AND DECREED that plaintiff has not retired

within the meaning of La.R.S. 23:1221(3)(d)(iii).”

Penalties

“Awards of penalties and attorney‟s fees in workers‟ compensation [cases]

are essentially penal in nature, being imposed to discourage indifference and

undesirable conduct by employers and insurers. Although the Workers‟

Compensation Act is to be liberally construed in regard to benefits, penal statutes

are to be strictly construed.” Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.

6/29/99), 737 So.2d 41, 46 (citation omitted). An appellate court reviews the

WCJ‟s decision to award penalties and attorney fees using the manifest

error/clearly wrong standard of review. Ducote v. La. Indus., Inc., 07-1536

(La.App. 3 Cir. 4/2/08), 980 So.2d 843.

In his answer to appeal, Normand contends that the WCJ erred in awarding

him a single $2,000.00 penalty for the multiple instances where Dresser either

made late payments or failed to pay his medical travel expenses. In brief, he points

to nine separate demands for travel expenses that were made to Dresser, each of

which was paid late or not at all. Normand acknowledges, however, that because

of the statute‟s cap, Dresser cannot be assessed more than $8,000.00 in penalties.

Dresser chose not to address the additional penalties issue, even though Normand‟s

answer to appeal was filed several weeks before its appellate brief was due.

Louisiana Revised Statutes 23:1201(F) provides that an employer‟s

“[f]ailure to provide payment in accordance with this Section” shall result in

assessment of a penalty of up to $2,000.00 for any claim up to a maximum of

$8,000.00 regardless of the number of penalties imposed. Here, the WCJ awarded

Normand a total of “$6,000 in 23:1201(F) penalties due to defendant‟s multiple
7

untimely payments of indemnity benefits, failure to pay for Dr. Aprill‟s treatment

and failure to reimburse fully plaintiff‟s medical travel expenses.” In choosing to

award Normand a single $2,000.00 penalty for Dresser‟s having made

“exceedingly late” payments of his medical travel expenses, the WCJ found that

Normand had not met his burden of proof of his entitlement to multiple penalties

as there was no evidence presented to show why those payments were made late.2

The WCJ justified the single penalty by noting that penalty statutes are to be

strictly construed and by distinguishing this matter from Burnett v. Village of

Estherwood, 09-680, p. 6 (La.App. 3 Cir. 12/9/09), 25 So.3d 997, 1001, where this

court found that three separate penalties were due where “there were three separate

mileage submissions which were either underpaid or paid late for different

reasons.”

Once Normand provided clear evidence that he had made multiple requests

to Dresser to reimburse him for separately incurred medical travel expenses and

that Dresser had either failed to pay or made late payment of those expenses, he

met his burden of proving that he was entitled to multiple penalties up to the

maximum allowed by the statute. The burden should have shifted to Dresser to

prove why each of those requests were either paid late or not paid, including

whether those late or non-payments were due to a single clerical error, such as was

the case in Ducote, 980 So.2d 843. The WCJ erred in holding Normand

responsible for the lack of evidence as to Dresser‟s reason(s) for late or non-

payment and in awarding him only a single penalty for Dresser‟s late or non-

payment of his medical travel expenses. Accordingly, we award Normand an

additional $2,000.00 penalty under La.R.S. 23:1201(F).

2
In its oral reasons for judgment, the WCJ admitted that he “came into confusion” when
trying to reconcile Normand‟s demand letters for medical travel expenses with Dresser‟s
payment log.
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Attorney Fees

In his answer to appeal, Normand requests additional attorney fees for work

done on this appeal. In Nash v. Aecom Technology Corp., 07-990, p. 8 (La.App. 3

Cir. 2/6/08), 976 So.2d 263, 268, this court held that “[a] workers‟ compensation

claimant is entitled to an increase in attorney fees to reflect additional time

incurred in defending an employer/insurer‟s unsuccessful appeal.” We award

Normand an additional attorney fee of $4,000.00 for the work done on appeal.

DECREE

For the foregoing reasons, we amend the October 20, 2010 judgment to

award Normand an additional $2,000.00 penalty and to include the following

language: “IT IS ORDERED, ADJUDGED, AND DECREED that plaintiff has

not retired within the meaning of La.R.S. 23:1221(3)(d)(iii).” We affirm as

amended and award Normand $4,000.00 in attorney fees for work done on this

appeal.

AFFIRMED AS AMENDED.

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