Felton Mallery v. Dynamic Industries, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1221

FELTON MALLERY

VERSUS

DYNAMIC INDUSTRIES, INC., ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 9
PARISH OF IBERIA, NO. 09-07132
ELIZABETH C. LANIER, WORKERS’ COMPENSATION JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of J. David Painter, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

AFFIRMED AS AMENDED.

David K. Johnson
Johnson, Stiltner & Rahman
Post Office Box 98001
Baton Rouge, Louisiana 70898-8001
(225) 231-0875
Counsel for Defendants/Appellants:
Dynamic Industries, Inc.
Louisiana Workers’ Compensation Corporation

Mark L. Riley
Glenn Armentor Corporation
300 Stewart Street
Lafayette, Louisiana 70501
(337) 233-1471
Counsel for Plaintiff/Appellee:
Felton Mallery

KEATY, Judge.

In this workers’ compensation case, Defendants, Dynamic Industries, Inc.

(Dynamic) and Louisiana Workers’ Compensation Corporation (LWCC), appeal a

judgment of the workers’ compensation judge (WCJ) in favor of Dynamic’s former

employee, Felton Mallery. For the following reasons, we amend, affirm as

amended, and award Mallery additional attorney fees.

FACTS AND PROCEDURAL HISTORY

Mallery worked for Dynamic as a painter/sandblaster. He was injured on

September 26, 2006, when a forklift caught a beam and dragged it onto his right

leg, fracturing it. He developed low back pain as a result of his injury. On June 2,

2009, Mallery underwent lumbar surgery. He began suffering with neck pain

several weeks later.

Mallery filed a 1008 Disputed Claim for Compensation (1008) in August

2009, alleging that Dynamic had failed to authorize and/or pay for his healthcare

expenses, including several cervical nerve block injections and the purchase of a

muscle stimulator. He sought penalties and attorney fees, contending that

Dynamic had failed to reasonably controvert his claim.

At the start of the June 30, 2011 trial in this matter, the parties stipulated that:

1) Mallery was employed by Dynamic on the date of the accident, and the accident

was in the course and scope of his employment; 2) Mallery is receiving benefits at

the rate of $478 per week, the maximum amount allowed on the date of his

September 26, 2006 accident; 3) if called to testify, Mallery would state that his

initial injuries were to his leg and low back, that his cervical problems arose after

his 2009 lumbar surgery, and that he desires to have the cervical surgery suggested

by Dr. John Cobb. No witnesses were called by either party, and Mallery offered

as exhibits his records from Dr. Cobb, his orthopedic surgeon.

At the conclusion of the two-day trial, the WCJ issued a ruling from the

bench finding that Mallery’s cervical complaints were related to his original work

injury and that Defendants were responsible for all reasonable and necessary

medical treatment related to his cervical spine, including the surgery recommended

by Dr. Cobb. The WCJ assessed Defendants with $7,000 in attorney fees and the

following penalties: $2,000 for failing to recognize the cervical conditions as

related; $2,000 for failure to authorize the cervical surgery; and $2,000 for failure

to authorize post-surgical care and other medical treatment of Mallery’s neck. A

written judgment in conformance with the oral ruling was signed on August 12,

2011.

Defendants now appeal. First, they claim that the WCJ erred in ordering

them to pay for the cervical surgery recommended by Dr. Cobb because the

surgery is unrelated to Mallery’s September 26, 2006 work-related accident. Next,

they claim that the WCJ erred in awarding penalties and attorney fees for their

failure to authorize the cervical surgery. Mallery answers the appeal, seeking

additional attorney fees for the work done in answering and defending this appeal.

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).

In Green v. National Oilwell Varco, 10-1041, pp. 3-4 (La.App. 3 Cir.

4/27/11), 63 So.3d 354, 358, we explained:

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“The determination of coverage is a subjective one in that each
case must be decided from all of its particular facts.” Jackson v. Am.
Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in
light of that standard of review, “great deference is accorded to the
[workers’ compensation judge’s] factual findings and reasonable
evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3
(La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315
(La. 4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-
39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

In Pender v. Southern Farm Bureau Casualty Insurance Co., 280 So.2d 599

(La.App. 3 Cir. 1973) (Pender II), the claimant had suffered two work-related

accidents in a one-and-one-half year time period. He later had surgery and

suffered a serious infection as a complication of the surgery, which resulted in a

lengthy period of convalescence and left him depressed. Claimant’s employer

changed workers’ compensation insurers during the period between his two

accidents. On appeal, claimant asserted that the second accident contributed to his

disability. This court decided that it did not. In doing so, we looked to our earlier

decision in Pender v. National Fire and Marine Insurance Co., 255 So.2d 95

(La.App. 3 Cir.), writ denied, 255 So.2d 355 (La.1971) (Pender I), wherein we

determined that the claimant had been totally and permanently disabled since the

first accident. We then stated in Pender II:

[P]laintiff offered no new evidence that could in any way be
considered as demonstrating that the [second] accident played a
greater role in effecting his disability…. Instead his evidence served
only to show the continuing disability that he is experiencing because
of the infection that followed his operation and the mental depression
that his lengthly [sic] convalescence produced. The fact still remains
that what made his surgery necessary was the [first] accident, as was
decided by this court in the previous case. By cause and effect it
follows that any complications of said surgery were likewise the result
of the [first] accident. If the [second] ‘accident’ had no bearing on
plaintiff’s ailment it likewise could have no bearing on any surgical
procedures made necessary by that ailment or on any consequences of
the surgery.

Pender, 280 So.2d at 602 (emphasis added). See also Deville v. Townsend Bros.

Const. Co., 284 So.2d 110 (La.App. 3 Cir. 1973) (an employer’s liability for

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compensation for initial injury is not diminished if the disability from that injury is

aggravated or prolonged due to complications that follow).

“The law is settled that an employer accepts an employee as he finds him,

and that ordinarily the Workmen’s Compensation Act affords coverage if a work-

connected accident precipitates or accelerates a pre-existing disposition or disease

into becoming a present disability.” Porter v. Augenstein Const. Co., 280 So.2d

861, 864 (La.App. 3 Cir. 1973).

Cervical Condition

On appeal, Defendants argue that “there can be no credible argument” that

Mallery’s cervical complaints are directly related to his September 2006 work

accident because they did not arise until nearly three years later. As they interpret

Dr. Cobb’s records, Mallery suffered from a degenerative condition in his neck

that “simply progressed over the intervening years following his work accident.”

Defendants further contend that cervical complaints are not a “normal” risk

associated with lumbar surgery.

Mallery counters that we should affirm the WCJ because the jurisprudence

holds that complications resulting from or arising out of a surgery or other medical

treatment necessitated by a work-related accident are related to the original

accident and compensable in workers’ compensation. With regard to Defendants’

claim that cervical complications are not a “normal” risk of lumbar surgery,

Mallery points out that Defendants offered no evidence in support of their

argument. He further submits that the jurisprudence does not contain such a

requirement.

In its oral ruling in Mallery’s favor, the WCJ noted that prior to his back

surgery, Mallery had no complaints related to his neck. However, as documented

in Dr. Cobb’s records, within several weeks of his surgery, Mallery began
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suffering from neck pain. The WCJ further noted that, while Dr. Cobb noted in

several reports that Mallery’s cervical issues were likely related to the way that he

was positioned during his lumbar surgery, the Defendants offered absolutely no

evidence to contradict Dr. Cobb’s finding of a causal link between Mallery’s

cervical complaints and his original work-related accident.

Our review of Mallery’s records from Dr. Cobb confirm that he did not

suffer from cervical problems before his lumbar surgery and that on several

occasions, Dr. Cobb noted that Mallery’s cervical issues were likely related to his

positioning during his lumbar surgery. No evidence was offered by Defendants to

challenge the evidence submitted by Mallery. As a result, we find no manifest

error in the WCJ’s conclusion that Mallery’s cervical complaints were related to

his September 2006 work accident as those complaints arose as a result of the

lumbar surgery necessitated by the 2006 accident, regardless of the time that

elapsed between Mallery’s initial injury and the onset of his cervical complaints.

See Pender, 280 So.2d 599. Further, as we noted in Porter, 280 So.2d 861, an

employer is liable for its employee’s injuries if a work-related accident causes a

pre-existing condition to become symptomatic. Thus, it is of no moment that

Mallery may have suffered from any degenerative cervical condition before his

lumbar surgery as that condition did not become symptomatic until after that

surgery. Defendants’ first assignment of error lacks merit.

Penalties and Attorney Fees

Louisiana Revised Statutes 23:1201(F) provides that a claimant is entitled to

an award of penalties and attorney fees for its employer’s failure to pay

compensation or medical benefits unless the WCJ finds that the employer

reasonably controverted the claim or that nonpayment was the result of conditions

not under control of the employer.
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“Awards of penalties and attorney’s fees in workers’ compensation 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 this case, the WCJ assessed Defendants with a $2,000 penalty for failing

to recognize the cervical conditions as related; a $2,000 penalty for failure to

authorize the cervical surgery; and another $2,000 penalty for failure to authorize

post-surgical care and other medical treatment of Mallery’s neck. Defendants were

assessed with $7,000 in attorney fees.

On appeal, Defendants contend that because they reasonably controverted

Mallery’s claims associated with his complaints regarding his neck, this court

should reverse the WCJ’s imposition of penalties and attorney fees. Alternatively,

they contend that even if we were conclude that the WCJ did not err in imposing

penalties against it, the WCJ nonetheless erred in imposing more than a single

$2,000 penalty. Defendants do not challenge the amount of attorney fees awarded.

Mallery counters that penalties were properly awarded because Defendants failed

to conduct “an investigation or seek any medical opinion as to the connexity and

causality” of his cervical complaints. He also points out that La.R.S. 23:1201(F)

authorizes the imposition of multiple penalties up to $8,000.

We are convinced that the WCJ did not manifestly err in finding that

Defendants failed to reasonably controvert Mallery’s claim for benefits concerning
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his cervical complaints as they apparently relied on nothing more than the opinion

of their insurance adjuster in denying his claim. Nevertheless, we conclude that

the WCJ erred in awarding Mallery a penalty for failing to authorize the cervical

surgery recommended by Dr. Cobb and a separate penalty for failing to authorize

post-surgical care and medical treatment for his neck, as those penalties are

duplicative. Counsel for Mallery admitted as much at oral arguments. See Haws v.

Prof’l Sewer Rehab., Inc., 98-2846 (La.App. 1 Cir. 2/18/00), 763 So.2d 683.

Accordingly, we reduce the award of penalties due Mallery to a total of $4,000.

Answer to Appeal

In his answer to appeal, Mallery requests additional attorney fees for having

to answer and defend 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 Mallery an additional attorney fee of $3,000 for the work done on

appeal.

DECREE

For the forgoing reasons, we amend the judgment of the WCJ to reduce the

penalties awarded to $4,000. In all other respects, we affirm. We award Felton

Mallery additional attorney fees of $3,000 for having to answer and defend this

appeal. Defendants, Dynamic Industries, Inc. and Louisiana Workers’

Compensation Corporation are cast with all costs of this appeal.

AFFIRMED AS AMENDED.

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