Viney J. Silas v. Sowela Technical College

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1022

VINEY J. SILAS

VERSUS

SOWELA TECHNICAL COLLEGE

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION – DISTRICT 3
PARISH OF CALCASIEU, NO. 09-07578
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Oswald A. Decuir, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED AND RENDERED.

Marcus Miller Zimmerman
4216 Lake Street
Lake Charles, LA 70605
(337) 474-1644
COUNSEL FOR PLAINTIFF/APPELLEE:
Viney J. Silas

Anthony Paul Palermo
Nicholas R. Bursavich
Breazeale, Sachse & Wilson, L.L.P.
P. O. Box 3197
Baton Rouge, LA 70821-3197
(225) 387-4000
COUNSEL FOR DEFENDANT/APPELLANT:
Sowela Technical College

Ezell, Judge.

Sowela Technical College (Sowela) appeals the decision of the workers’

compensation judge finding that Viney J. Silas suffered a workplace accident that

required the payment of disability benefits. Sowela also appeals the awards of

penalties and attorney fees for the failure to pay those benefits. Ms. Silas has

answered the appeal, seeking additional attorney fees for work done on appeal. For

the following reasons, we affirm the decision of the workers’ compensation judge.

Ms. Silas was employed by Sowela as a clinical nursing instructor on

December 10, 2008, when she alleges she injured her knee pushing a large box of

books. She continued work that day, but saw her primary care physician the next

day for the pain. She continued to work until the Christmas holidays because the

school was a nurse short. However, Ms. Silas claims she told her human resources

manager and Sowela’s chancellor of the accident. This was not contradicted by

Sowela. Her knee continued to get worse until her last day of work, January 4,

2009. She was referred to Dr. Geoffrey Collins, an orthopedic surgeon, who

performed an arthroscopic procedure on her on January 27, 2009. He found that

Ms. Silas had osteoarthritis, but with pain exceeding the expectations of that

diagnosis. When this surgery did not help, Ms. Silas could not return to work. She

was terminated on May 4, 2009. Dr. Collins later performed a partial knee

replacement on May 13, 2009, which also did not alleviate the pain. Ms. Silas

eventually filed this current claim for workers’ compensation in October, 2009.

Subsequently, Ms. Silas had a complete knee replacement on February 23, 2010,

performed by Dr. Vasilios Matthews. After that surgery, she was able to return to

a similar position teaching, but only in a part-time manner.

The workers’ compensation judge found that Ms. Silas suffered a workplace

accident, awarded temporary total disability benefits from January 4, 2009, until

April 14, 2010, when Ms. Silas returned to part-time work. He awarded

supplemental earnings benefits (SEB) thereafter. The workers’ compensation

judge also awarded Ms. Silas $4,000.00 in penalties for Sowela’s failure to timely

pay benefits and $12,600.00 in attorney fees. From that decision, Sowela appeals.

Sowela asserts three assignments of error on appeal. It claims the workers’

compensation judge erred in finding an injury resulted from a workplace accident;

in awarding Ms. Silas SEB; and in awarding penalties and attorney fees against it.

Ms. Silas answers, seeking additional attorney fees for work done on appeal.

The standard for reviewing a workers’ compensation judge’s decision was

discussed by this court in Butterfield v. Turner Industries, 06-1098, pp. 3-4

(La.App. 3 Cir. 2/7/07), 951 So.2d 476, 479, writ denied, 07-507 (La. 4/27/07),

955 So.2d 692 (alteration in original):

In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879
So.2d 112, 117, the supreme court stated:

In worker’s compensation cases, the appropriate
standard of review to be applied by the appellate court to
the OWC’s findings of fact is the “manifest error-clearly
wrong” standard. Brown v. Coastal Construction &
Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704
So.2d 8, 10, (citing Alexander v. Pellerin Marble &
Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706,
710). 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, 630 So.2d at 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.2003), 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. The determination of whether injury
occurred in the course and scope of employment is a
mixed question of law and fact. Winkler v. Wadleigh
Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817
So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-
0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).
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This court, in Monceaux v. R & R Const., Inc., 05-533, p. 6
(La.App. 3 Cir. 12/30/05), 919 So.2d 795, 799-800, writs denied, 06-
585 (La.5/5/06), 927 So.2d 325, 06-636 (La.5/5/06), 927 So.2d 317,
noted the following:

The Louisiana Supreme Court, in Bruno v. Harbert
International Inc., 593 So.2d 357, 361 (La.1992),
expounded on what proof will satisfy an employee’s
burden in proving a work-related injury:

A worker’s testimony alone may be
sufficient to discharge this burden of proof,
provided two elements are satisfied: (1) no
other evidence discredits or casts serious
doubt upon the worker’s version of the
incident; and (2) the worker’s testimony is
corroborated by the circumstances following
the alleged incident. West v. Bayou Vista
Manor, Inc., 371 So.2d 1146 (La.1979);
Malone and Johnson, 13 Louisiana Civil
Law Treatise, Workers’ Compensation, §
253 (2d Ed. 1980). Corroboration of the
worker’s testimony may be provided by the
testimony of fellow workers, spouses or
friends. Malone & Johnson, supra; Nelson v.
[Roadway Express, Inc., 588 So.2d 350
(La.1991)]. Corroboration may also be
provided by medical evidence. West, supra.
In determining whether the worker has discharged
his or her burden of proof, the trial court should accept as
true a witness’s uncontradicted testimony, although the
witness is a party, absent “circumstances casting
suspicion on the reliability of this testimony.” West, 371
So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d
1381, 1383 (La.1987). The trial court’s determinations
as to whether the worker’s testimony is credible and
whether the worker has discharged his or her burden
of proof are factual determinations not to be
disturbed on review unless clearly wrong or absent a
showing of manifest error. Gonzales v. Babco Farm,
Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied,
536 So.2d 1200 (La.1988) (collecting cases).

While Ms. Silas’ accident was unwitnessed, her testimony regarding the

accident and how it occurred was not contradicted in any way by Sowela. As

noted by the workers’ compensation judge in his reasons for judgment, Ms. Silas

stated she told her boss and human resources director about the accident. Sowela

failed to depose them or call them as witnesses to rebut this claim. Furthermore,

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other than her near absent history to Dr. Collins, her medical records note that she

told her other health care providers that she suffered a work injury on or around

October 10, 2008, as she claims in this dispute. Finally, Dr. Collins noted that,

while she did have osteoarthritis, that it could have been aggravated by an accident

as described by Ms. Silas. After reviewing the record before this court, we are

unable to find evidence that the workers’ compensation judge’s finding that Ms.

Silas suffered a workplace injury is clearly erroneous.

Sowela next claims that the workers’ compensation judge erred in in

awarding Ms. Silas SEB after she was able to return to part-time work.

“The purpose of [SEBs] is to compensate the injured employee
for the wage earning capacity he has lost as a result of his accident.”
Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840
(La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive
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.
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
of the individual case. Banks, supra at 556. “In determining if an
injured employee has made out a prima facie case of entitlement to
[SEBs], the trial court may and should take into account all those
factors which might bear on an employee’s ability to earn a wage.”
Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989)
(quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d
1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee
overcomes this initial step that the burden shifts to the employer to
prove, by a preponderance of the evidence, that the employee is
physically able to perform a certain job and that the job was offered to
the employee or that the job was available to the employee in his or
the employee’s community or reasonable geographic location. La.
R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.

Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793, pp. 4-5 (La.

1/9/11), 56 So.3d 170, 174 (alterations in original)(footnote omitted). “In

determining whether a [workers’ compensation judge’s] finding that an employee

has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a

reviewing court must examine the record for all evidence that bears upon the

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employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord

Container Corp., 97-688, p.8 (La. 12/2/97), 704 So.2d 1161, 1166.

Here, Ms. Silas testified that due to the need for quick responses, abrupt

movements, and constant bending and stooping, she would be unable to return to

full- time work. This, again, was uncontradicted. While Dr. Collins encouraged

her to return to work when her job was being threatened, he returned her only to

light duty. And, this action was taken a few brief weeks before he performed a

partial knee replacement on Ms. Silas. Dr. Matthews did not release her to full

work. While her job title may be similar to that which she held at Sowela, it is

clear from the record that Ms. Silas was not able to work full time and that the

workers’ compensation judge was not manifestly erroneous in finding that she was

unable to earn ninety percent of her pre-accident wages.

Finally, Sowela claims the workers’ compensation judge erred in awarding

Ms. Silas penalties and attorney fees for its failure to pay her indemnity benefits.

“The applicable standard of review in determining whether a defendant should be

cast with penalties and attorney fees is the manifest error-clearly wrong standard.”

Bennett v. Pilgrim’s Pride, 07-753, p. 10 (La.App. 3 Cir. 12/12/07), 972 So.2d 423,

429, writ denied, 08-103 (La. 3/7/08), 977 So.2d 907. In Brown v. Texas-LA

Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890, the supreme court

stated:

[T]o determine whether the claimant’s right has been reasonably
controverted, thereby precluding the imposition of penalties and
attorney fees under La. R.S. 23:1201, a court must ascertain whether
the employer or his insurer engaged in a nonfrivolous legal dispute or
possessed factual and/or medical information to reasonably counter
the factual and medical information presented by the claimant
throughout the time he refused to pay all or part of the benefits
allegedly owed.

The workers’ compensation judge found that Sowela was aware of Ms.

Silas’ injury soon after it occurred based on her undisputed testimony, yet Sowela
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did little to nothing in the way of either treatment or investigation of her claim over

the next nine months until she filed her claim. Sowela simply let her exhaust her

accumulated leave until it ran out, then fired her with no evidence her claims were

false or exaggerated. Thereafter, Sowela seems to have solely relied on Ms. Silas’

arthritis to counter her claims. The law is clear that where an employer “fails to

properly investigate a claim, it subjects itself to penalties and attorney fees.”

Guillory v. Bofinger’s Tree Serv., 06-86, p. 15 (La.App. 1 Cir. 11/3/06), 950 So.2d

682, 692. Again, while she did have pre-existing osteoarthritis, Dr. Collins

testified that an accident such as hers could aggravate/precipitate the pain she

suffered. The record before this court is devoid of any medical evidence that

suggests Ms. Silas’ arthritis alone reasonably controverts her claim. Moreover,

there is no evidence the workers’ compensation judge’s awards of penalties and

attorney fees were manifestly erroneous. We note that Ms. Silas has answered this

appeal seeking additional fees for work done on appeal. Considering our decision

affirming the workers’ compensation judgment, Ms. Silas is entitled to additional

attorney fees for work done on appeal, and same will be awarded.

For the above reasons, the ruling of the workers’ compensation judge is

hereby affirmed. Ms. Silas is awarded additional attorney fees of $2,000.00 for

work performed on this appeal.

AFFIRMED AND RENDERED.

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