Angelo Bracey v. City of Alexandria

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-16

ANGELO BRACEY

VERSUS

CITY OF ALEXANDRIA

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APPEAL FROM THE
OFFICE OF WORKERS‟ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 11-04410
JAMES L. BRADDOCK, WORKERS‟ COMPENSATION JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Phyllis M. Keaty, Judges.

Gremillion, J., concurs in part and dissents in part and assigns written
reasons.

AFFIRMED.

Lewis O. Lauve, Jr.
Bussey & Lauve, LLC
Post Office Box 8778
Alexandria, Louisiana 71306-1778
(318) 449-1937
Counsel for Defendant/Appellant:
City of Alexandria

Malcolm X. Larvadain
Attorney at Law
626 Eighth Street
Alexandria, Louisiana 71301
(318) 445-3533
Counsel for Plaintiff/Appellee:
Angelo Bracey

KEATY, Judge.

Employer appeals from a judgment rendered by the worker‟s compensation

judge (WCJ) in favor of former employee. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 21, 2010, Angelo Bracey (Bracey) filed a 1008 Disputed Claim for

Compensation (1008) against his employer, the City of Alexandria (the City),

seeking medical treatment pursuant to the Louisiana Workers‟ Compensation Act

(LWCA), La.R.S. 23:1021-1415, for injuries that he sustained in a workplace

accident on May 22, 2009, while he was employed by the City as a firefighter.

Therein, he contended that he injured his right leg and hip when he stepped into a

hole while cutting grass with a push lawn-mower at the fire station. He alleged

that no medical treatment had been authorized, and he sought authorization for an

MRI arthrogram that had been recommended by Dr. Daniel Oas. In an amended

1008 filed on May 21, 2010, Bracey sought an award of statutory penalties and

attorney fees. Bracey filed a separate 1008 on June 14, 2011, seeking

authorization to be seen by Dr. Brett Cascio, an orthopedist specializing in hip

injuries, for the injuries he sustained in the May 22, 2009 workplace accident. On

August 8, 2011, the WCJ signed an order consolidating the two actions for trial

purposes. The matters were tried on May 23, 2012. At trial, the parties stipulated

that Bracey was a City employee on the date of the alleged accident and that the

maximum compensation rate would apply if Bracey were awarded workers‟

compensation benefits. On July 24, 2012, the WCJ issued an oral ruling in favor

of Bracey awarding him Temporary Total Disability Benefits (TTDs); ordering the

City to pay for Bracey‟s continued care for his right labrum tear by Dr. Cascio;

awarding Bracey a $2,000 penalty for the City‟s failure to authorize further

medical care for his injury; awarding Bracey $2,000 in penalties for the City‟s

failure to recognize the validity of his claim; awarding Bracey $7,500 in attorney

fees; and assessing the City with all costs and ordering interest to run on all sums

from the date they were due. Written judgment was signed on October 17, 2012.

The City now appeals, asserting that the trial court erred: 1) in finding that

Bracey established by a preponderance of the evidence that he sustained a work-

related injury that made him in need of medical care and unable to work for the

City; 2) in finding that Bracey proved that the work-related accident had caused a

torn labrum in his right hip; 3) in finding that Bracey established by clear and

convincing evidence his entitlement to TTDs; and 4) in assessing it with penalties

and attorney fees. Bracey has answered the appeal seeking an additional award of

attorney fees to cover the cost of having to defend the appeal.

DISCUSSION

Work-Related Accident

A worker bringing a compensation action against his employer bears the

burden of proving, as a threshold requirement, that he suffered “personal injury by

accident arising out of and in the course of his employment.” Bruno v. Harbert

Int’l Inc., 593 So.2d 357, 360 (La.1992); La.R.S. 23:1031(A). The word

“accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen

actual, identifiable, precipitous event happening suddenly or violently, with or

without human fault, and directly producing at the time objective findings of an

injury which is more than simply a gradual deterioration or progressive

degeneration.” La.R.S. 23:1021(1).

Factual findings in workers‟ compensation cases are subject to
the manifest error or clearly wrong standard of appellate review.
Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94); 633

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So.2d 129. 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. Stobart v.
State, 617 So.2d 880 (La.1993). Where there are two permissible
views of the evidence, a factfinder‟s choice between them can never
be manifestly erroneous or clearly wrong. Id. Thus, „„if the
[factfinder‟s] findings are reasonable in light of the record reviewed in
its entirety, the court of appeal may not reverse, even though
convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently.‟‟ Sistler v. Liberty Mut. Ins. Co.,
558 So.2d 1106, 1112 (La.1990).

Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811

So.2d 1160, 1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d 784.

“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). “[T]he manifest error standard of appellate review applies in

workers compensation cases and great deference is accorded to the [workers‟

compensation judge‟s] factual findings and reasonable evaluations of credibility.”

Central 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).

Bracey testified that while mowing the grass at the fire station on the

morning of May 22, 2009, he stepped into a hole and injured his right hip when he

turned to get out of the hole. Within minutes of the accident, he told his supervisor,

Captain Charles Lane, that he had been injured. He and Captain Lane filled out an

accident report, and he was sent to Dr. Gordon Webb, a physician specializing in

occupational and emergency medicine. Dr. Webb diagnosed him with a strained

right bicep femorous. He told Bracey not to work and scheduled a follow-up

appointment for May 29, 2009. At that visit, Bracey still had complaints of leg

pain, so Dr. Webb ordered him to remain off work until June 8, 2009. When

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Bracey returned to Dr. Webb‟s office on June 5, 2009, he was released to return to

work, effective June 8, 2009, although he still had complaints of leg pain which he

described as “one” on a scale of one to ten. Bracey last saw Dr. Webb in

conjunction with the injuries he sustained in the May 22 work-place accident on

June 23, 2009. At that time, he again reported right leg pain of “one” on a scale of

one to ten. Bracey also reported having increased pain across his right hip since

recently jumping off the tailgate of his truck. According to Dr. Webb‟s notes from

that visit, Dr. Webb believed that this pain represented a new problem, not work

related, as Bracey had not previously had pain across his hip joint.

Bracey was scheduled to work twenty shifts of twenty-four hours each

between June 9 through August 6, 2009, after which he had a scheduled vacation

until September 11, 2009. He worked eleven of those shifts and “laid off” the

remaining nine. Bracing testified that “laying off” meant getting someone else to

cover a shift. He stated that shifts could not be “laid off” due to illness or injury

and that any shifts missed for those reasons “would be coded as „sick time‟ or

„workers‟ comp.‟” When Bracey returned from vacation, he worked six shifts and

“laid off” another two shifts.

Beginning on October 13, 2009, Bracey was off work while treating with

psychiatrist Dr. Edwin Urbi for issues/depression stemming from his wife‟s

disclosure of infidelity. Dr. Urbi released Bracey from his care and cleared him to

return to work on January 7, 2010. On that date, Bracey was seen by Dr. Robert

Rush, a board certified physician in the field of occupation medicine, for injuries

he sustained to his neck and back in a non-work-related automobile accident on

November 28, 2009. Bracey never complained of hip pain to Dr. Urbi. While he

also did not initially complain to Dr. Rush about any hip pain, on January 12, 2010,

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he complained to physical therapist Oday Lavergne that he had “pain in the right

lower extremity especially in the right anterior groin,” leading Lavergne to

recommend that Bracey undergo an MRI arthrogram to assess the cause of his pain.

Thereafter, Bracey requested that the City send him to Dr. Dan Oas, a

specialist in orthopaedic and sports medicine. Dr. Oas first saw Bracey on

March 17, 2010. After examining Bracey, Dr. Oas believed that he had a torn right

labrum, given the type of symptoms he was having and the length of time that

those symptoms had lasted. At that time, Dr. Oas recommended that Bracey

undergo an MRI arthrogram of his right hip along with a contemporaneous

therapeutic injection to enable him to ascertain a better diagnosis of the cause of

his hip pain. According to Andy Storer, an adjuster for the City, further treatment

related to the right hip was denied because he believed that those complaints were

related to the November 2009 automobile accident rather than Bracey‟s May 2009

work accident. Bracey continued treatment with Dr. Oas using his private health

insurance, and on September 29, 2010, he received the recommended MRI

arthrogram and injection to his right hip. The MRI report noted that it was

“suspicious for [a] right sided labral tear.” In early October 2010, Bracey returned

to Dr. Oas and reported that his symptoms had improved and he wanted to return

to work.

The testimony revealed that before allowing Bracey to resume his

employment, the City sent him back to Dr. Webb for a return-to-work examination.

On October 29, 2010, after reviewing the MRI report and examining Bracey,

Dr. Webb issued a report opining that Bracey‟s labrum tear made it “exceedingly

unlikely that [he] will be able to perform his full duties as a fireman and that there

5

is a high risk of injury to himself which could result in serious injury or death to

himself of others should this occur at a critical moment.”

Throughout the time applicable to this matter, Bracey had check-ups at the

Veteran‟s Affairs Medical Center in Alexandria (the VA) as a result of his having

served in the Iraq War as a member of the United States Air Force. During a

routinely scheduled visit on May 27, 2009, Bracey reported that he had been

experiencing right hip pain since stepping in hole while mowing grass at work

several days prior.

The City contends that the WCJ committed manifest error when it found that

Bracey proved that he suffered an injury that made him in need of medical care and

unable to work because Bracey returned to work at full duty on June 8, 2009,

without complaint, and without the need for additional medical care until he was

involved in a non-work-related automobile accident on November 28, 2009. Thus,

while it concedes in its appellant brief that Bracey did suffer a work-related

accident that resulted in his being temporarily disabled due to a strain of his bicep

femorous muscle, the City emphatically denies that the accident caused the torn

labrum which prevents him from returning to his job as a firefighter for the City.

Bracey counters that the City‟s analysis oversimplifies the evidence and

Bracey‟s actual physical injuries. Bracey submits that when Dr. Webb released

him to full duty on June 8, 2009, he was still suffering from right leg pain which he

described as one out of ten, which never disappeared, and which increased when he

put weight on his right leg and turned. He also points to Dr. Webb‟s deposition

testimony wherein he stated that: 1) it can be difficult to pinpoint the exact cause

of hip pain and that doctors often have to take a “wait-and-see” approach, and 2)

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typically, if hip pain resolves quickly it was due to a strain, but if the pain lingers,

it was due to a more serious condition.

Bracey also refers this court to the deposition testimony of Dr. Rush wherein

he stated that hip injuries such as a torn labrum can easily be missed and are

difficult to diagnose. Bracey further points to Dr. Rush‟s opinion that while the

automobile accident that Bracey was involved in on November 28, 2009 may have

aggravated his torn labrum, it did not cause the tear given Bracey‟s physical

condition and complaints when he examined Bracey on January 7, 2010. Bracey

asks this court to consider Dr. Rush‟s belief that the cervical and lumbar strains

Bracey sustained in the automobile accident could have masked his torn labrum

until those more acute injuries had resolved.

Finally, Bracey submits that he was a credible witness, that the medical

evidence supports his claim, and that he carried his burden of proving that he

suffered injuries in a work-related accident that render him incapable of returning

to work as a firefighter for the City.

In its oral reasons, the WCJ found that Bracey proved by a preponderance of

the evidence “that he had an incident that involved him sustaining an injury that

made him in need of medical care and made him incapable of working for the

City.” The WCJ stated that he based this finding primarily on the Alexandria Fire

Department Accident Report, which was completed minutes after the accident,

along with the Supervisor‟s Accident Investigation Report prepared by Captain

Lane later that day, and the Employer Report of Injury/Illness that the City filed

with the Office of Workers‟ Compensation on May 26, 2009. Each of those

reports indicated that Bracey had stepped into a hole or low spot while mowing

grass at the fire station. In two of the reports, it was noted that Bracey hurt his

7

right hip when he turned. In the third, Captain Lane wrote that Bracey‟s groin area

was hurting after the accident. The WCJ also noted that on the date of the accident,

the fire department sent Bracey to Dr. Webb who after examining Bracey,

diagnosed him with a bicep femorous muscle strain of the right leg, which caused

pain from behind his right knee, along the bicep and up into the buttock and hip.

After having reviewed the testimony and evidence, we cannot say that the

WCJ committed manifest error in finding that Bracey was injured in a work-related

accident that made him in need of medical care and unable to return to his former

job with the City, especially in light of the results of the MRI arthrogram which

showed that he likely had a labrum tear in his right hip and Captain Lane‟s

testimony that even though Bracey worked as a driver, any injured firefighter had

to be 100% to return to work should he be pressed into full duty to fight a fire.

There is no merit to the City‟s first assignment of error.

Causation of Torn Labrum

The City insists that there is an absence of definitive expert testimony to

support the WCJ‟s finding that Bracey‟s torn labrum was caused by his work-

related accident. It submits that Bracey‟s hip injury was more likely caused by his

November 2009 automobile accident, given that he did not voice any complaints of

hip or groin pain to Dr. Urbi when he was being treated for depression at the end of

2009. Bracey disagrees, arguing that he voiced a right hip injury on the date of the

accident and several days later to his physicians at the VA, long before he was

involved in the automobile accident which the City points to as the cause of his hip

injury.

In its reasons for judgment, the WCJ stated that the medical evidence

successfully rebutted the City‟s claim that Bracey did not experience any hip or

8

groin pain until long after his work-related accident. The WCJ made particular

reference to a note in Bracey‟s records from the VA dated May 27, 2009, less than

a week after the lawn mower accident, wherein Bracey described having pain in

his hip that increased when he twisted in a certain way.

After review of the record, we cannot say that the WCJ‟s conclusion that

Bracey‟s torn labrum was caused by his May 2009 work injury was clearly wrong.

The City‟s second assignment of error is without merit.

Entitlement to TTDs

The City posits that the WCJ erred in finding that Bracey proved his

entitlement to TTDs as the facts show that he was able to return to work and earn

his full salary, without complaint and without the need for additional medical

treatment until after being involved in a non-work-related automobile accident six

months after the lawn mower incident at work. Bracey counters that the evidence

supports his claims. He concedes that he may not have effectively communicated

his initial symptoms to Dr. Webb, and he again points to the testimony indicating

that hip injuries can be difficult to explain and diagnose. Finally, Bracey submits

that he was a credible witness and that the City failed to offer any evidence that

would tend to cast any suspicion on the reliability of his testimony.

“The issue of disability within the framework of the workers‟ compensation

law is a legal rather than a purely medical determination. The issue of disability is

determined with reference to the totality of the evidence, including both lay and

medical testimony.” Green v. Nat’l Oilwell Varco, 10-1041, p. 13 (La.App. 3 Cir.

4/27/11), 63 So.3d 354, 363 (citations omitted) (quoting Odom v. Kinder Nursing

Home, 06-1442, p. 5 (La.App. 3 Cir. 4/25/07), 956 So.2d 128, 132).

9

The WCJ concluded that Bracey established his entitlement to TTDs by

clear and convincing evidence. In so concluding, the WCJ noted Dr. Webb‟s

opinion that Bracey‟s labrum tear made him “incapable of performing the job

functions of a driver or fire personnel” for the City. Given our affirmation of the

WCJ‟s finding that Bracey‟s work-related accident was the cause of his torn

labrum, we cannot say that the WCJ manifestly erred in concluding that Bracey

proved his entitlement to TTDs. There is no merit to the City‟s third assignment of

error.

Penalties and Attorney Fees

Louisiana Revised Statutes 23:1201 is the relevant statute in
determining whether an employer should be assessed penalties and
attorney fees for failure to timely pay indemnity or medical benefits.
The statute provides that no penalties or attorney fees shall be
assessed “if the claim is reasonably controverted or if such
nonpayment results from conditions over which the employer . . . had
no control. La.R.S. 23:1201(F)(2). Further, “[t]o avoid the
imposition of penalties and attorney fees for the nonpayment of
benefits, the employer has a continuing obligation to investigate, to
assemble, and to assess factual information before denying benefits.”
Romero v. Northrop–Grumman, 01-24, pp. 10-11 (La.App. 3 Cir.
5/30/01), 787 So.2d 1149, 1156, writ denied, 01-1937 (La.10/26/01),
799 So.2d 1144.

An employer avoids the imposition of penalties
and attorney‟s fees by satisfying its continuing obligation
to investigate, assemble, and assess factual information
prior to it denying benefits. Furthermore, the decision to
award penalties and attorney‟s fees is factual in nature
and will not be reversed on appeal absent manifest error.

Odom [v. Kinder Nursing Home], 956 So.2d at 141-42
(citations omitted). “The purpose of imposition of penalties and
attorney fees is to discourage indifference and undesirable conduct by
employers and insurers.” Burns v. Interstate Brands Corp., 09-705, p.
7 (La.App. 3 Cir. 2/3/10), 30 So.3d 271, 277.

Green, 63 So.3d at 364.

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While the City asserts that the WCJ erred in awarding Bracey penalties and

attorney fees, it fails to offer any support for its assertion, instead merely offering

the conclusory statement that the WCJ erred in finding that it acted arbitrarily

and/or capriciously in the handling of Bracey‟s claim. Bracey counters that the

WCJ did not manifestly err in finding that the City failed to reasonably controvert

his claim for surgery and other medical benefits, noting that the WCJ found him to

be credible.

In awarding Bracey penalties and attorney fees, the WCJ found that given

the fact that records from the VA Medical Center showed that Bracey had

complained of sharp right hip pain on a May 27, 2009 visit, the City‟s continued

resistance to recognize the validity of Bracey‟s claim that his right hip pain was

attributable to his May 2009 work accident and its failure to authorize further

medical care for Bracey‟s hip injury was arbitrary and capricious.

After having reviewed the testimony and evidence, we cannot say that the

WCJ committed manifest error in finding that Bracey had proved his entitlement to

penalties and attorney fees. The City‟s final assignment of error has no merit.

Bracey’s Answer to Appeal

Bracey answered the City‟s appeal to request that it be awarded additional

attorney fees for work done on 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 Bracey additional attorney fees of $4,000 for the costs associated with

having to defend this appeal.

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DECREE

The judgment rendered by the workers‟ compensation judge in favor of

Angelo Bracey is affirmed in its entirety. Bracey is awarded additional attorney

fees of $4,000 for work performed on this appeal. All costs of this appeal are

assessed against the City of Alexandria.

AFFIRMED.

12

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-16

ANGELO BRACEY

VERSUS

CITY OF ALEXANDRIA

GREMILLION, J., concurs in part and dissents in part and assigns written

reasons.

I agree with my colleagues that the primary issue is whether Mr. Bracey

injured his right hip as a result of the unwitnessed May 22, 2009 accident wherein

he allegedly stepped in a hole. In my view, the weight of the evidence suggests

that he did not.

I find that the weight of the evidence suggests that he sustained a minor

strain to a muscle in his right leg, resulting in only missing a few weeks from work

and minimal pain.

Further, I find that the weight of the evidence indicates that the right hip

injury was caused by a separate, unrelated incident wherein Mr. Bracey jumped

from a truck in June 2009 or an unrelated automobile accident that occurred in

November 2009 or a combination of those two unrelated incidents.

Nevertheless, it is also true that Mr. Bracey did tangentially reference his

right hip in a visit to Dr. Gordon Webb shortly after the subject work-related

accident and again when he made an unrelated visit to the V.A. Medical Center

about a week after the work-related accident.

This evidence, in my opinion, does not rise to the level of a preponderance.

It does, however, fit within the broad bounds of the manifest error of review. Thus,

I agree with my colleagues that there is no basis in this record to reverse the

workers’ compensation court with regard to its conclusion that Mr. Bracey was

disabled as a result of this accident. I, therefore, join my colleagues in affirming

that portion of the trial court’s ruling.

However, I respectfully disagree with the majority’s decision to affirm the

penalties and attorney fees. In addition to the fact that the weight of the evidence

suggested that Mr. Bracey did not injure his right hip in the subject work-related

accident, there is also specific evidence in this record indicating that Mr. Bracey

denied a hip injury altogether. And, there is evidence that a medical care provider

specifically determined that the right hip injury was caused by an unrelated

accident. Thus, I find that the employer reasonably controverted Mr. Bracey’s

assertion that his right hip was injured in the subject work-related accident. I

would, therefore, reverse the workers’ compensation court’s award of penalties and

attorney fees.

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