John Wiltz v. Todd's Car Wash

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-448

JOHN WILTZ

VERSUS

TODD’S CAR WASH

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION – DISTRICT 4
PARISH OF LAFAYETTE, NO. 0907802
ADAM C. JOHNSON, WORKERS’ COMPENSATION JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of James T. Genovese, Shannon J. Gremillion, and John E.
Conery, Judges.

AFFIRMED.

Michael Benny Miller
Jacqueline B. Manecke
Miller & Miller
Post Office Box 1630
Crowley, Louisiana 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
John Wiltz

Matthew William Tierney
Kristine D. Smiley
Tierney and Smiley, LLC
3535 South Sherwood Forest, Suite 233
Baton Rouge, Louisiana 70816
(225) 298-0770
COUNSEL FOR DEFENDANT/APPELLEE:
Todd’s Car Wash

CONERY, Judge.

The plaintiff, John Wiltz (“Mr. Wiltz”), appeals the judgment of the

Workers’ Compensation Judge (“WCJ”) in favor of Todd’s Car Wash (“Todd’s”).

The WCJ found that Mr. Wiltz’s right eye condition and hypertension were not

causally related to his work accident and injury, awarded Todd’s a credit and offset

for all amounts paid in relation to Mr. Wiltz’s right eye, denied Mr. Wiltz

supplemental earnings benefits (“SEB”) both before and after his termination for

cause, awarded Mr. Wiltz $8,000.00 in penalties, awarded $8,000.00 in attorney

fees, and equally divided the claimant’s costs. For the following reasons, we

affirm.

FACTS AND PROCEDURAL HISTORY

It is undisputed that on January 15, 2009, Mr. Wiltz had a compensable

work accident during the course and scope of his employment at Todd’s when a

metal ball struck his left eye. The injury to Mr. Wiltz’s left eye required medical

treatment, including surgery. He was released to light duty work on March 24,

2009.

Mr. Wiltz claimed that as a result of the accident involving his left eye, he

required treatment for glaucoma in his right eye. Additionally, Mr. Wiltz claimed

that he developed high blood pressure due to the January 15, 2009 accident and

was restricted by his physician to working no more than forty hours a week due to

his unstable hypertension. Mr. Wiltz also sought SEB beginning on his return to

work on March 24, 2009.

In addition to its defense on the merits, Todd’s contended that Mr. Wiltz

violated La.R.S. 23:1208 by submitting fraudulent forms and false testimony to the

WCJ concerning the use of a dolly while moving fifty-five gallon drums. Todd’s

sought dismissal on these grounds.

This matter proceeded to a trial on the merits before the WCJ. Trial began

on November 7, 2011, and was continued to February 14, 2012, as Todd’s had not

completed their case in chief. In the interim, Mr. Wiltz was terminated for cause

from his position with Todd’s on November 15, 2011, for a violation of company

policy. Counsel for both parties stipulated, and the WCJ agreed, that the effect of

Mr. Wiltz’s termination for cause on his claim for SEB would be heard by the

WCJ at the close of Todd’s case in chief. The parties entered into the following

stipulations prior to and during trial:

1. Mr. Wiltz sustained an accident in the course and scope of his
employment with Todd’s on or about January 15, 2009, when a
steel ball hit him in the left eye.

2. Todd’s stipulated to the maximum amount penalties under
La.R.S. 23:1201(F) of $8,000.00.

3. Mr. Wiltz’s average weekly wage as of January 15, 2009, was
$1,000.00.

At the close of evidence, the WCJ took the matter under advisement. On

July 9, 2012, the WCJ rendered oral reasons for judgment on the remaining issues,

finding that Mr. Wiltz failed to meet his burden of proof that his hypertension was

causally related to his accident and that payment for wages or related medical bills

for this condition was not owed by Todd’s pursuant to La.R.S. 23:1201(A) & (E).

The WCJ further found that Mr. Wiltz failed to meet his burden of proof that his

right eye condition was causally related to the injury to his left eye and awarded

Todd’s a credit for all treatment paid for the right eye pursuant to La.R.S. 23:1206.

Additionally, the WCJ found that Mr. Wiltz failed to carry his burden of proof

showing any further entitlement to SEB pursuant to La.R.S. 23:221(3), either for

2

the time he returned to work on March 24, 2009, through November 15, 2011, or

after his termination for cause on November 15, 2011. The WCJ awarded

$8,000.00 in attorney fees based on the degree of skill and ability exercised by the

attorney, the amount of the claim, the amount recovered for the claimant, the

amount of time devoted to the case, and the results obtained. On the issue of costs,

the WCJ found that as the claimant did not prevail on all issues, and Todd’s

stipulated to the penalties right before trial, only fifty percent of claimant’s costs,

$996.49, would be assessed against Todd’s, with legal interest due according to

law. The WCJ reduced the stipulations and reasons for judgment to a written

judgment on September 28, 2012. The WCJ also dismissed Todd’s claim that Mr.

Wiltz violated the provisions of La.R.S. 23:1208,1 by filing false claim forms and

testifying falsely on the issue of lifting fifty-five gallon drums as a work

requirement.

ASSIGNMENTS OF ERROR

Mr. Wiltz perfected a devolutive appeal from the September 28, 2012

judgment, presenting seven assignments of error:

1.) The workers’ compensation judge erred in failing to award
disability benefits.

2.) It was error for the workers’ compensation judge to require that
Mr. Wiltz first present evidence on Todd’s Car Wash’s Motion to
Terminate Benefits due to Mr. Wiltz being terminated from his job at
Todd’s Car Wash.

3.) The workers’ compensation judge erred in finding that Mr. Wiltz
was terminated for cause and in failing to award any supplemental
earnings benefits (SEB) after his termination from Todd’s Carwash,
LLC.

1
This finding is contained in the WCJ’s July 9, 2012 oral reasons, but is not referenced in
the WCJ’s September 28, 2012 judgment. Since there was no judgment on this issue, there was
no appeal of this issue.

3

4.) The workers’ compensation judge erred in finding that Mr. Wiltz
failed to meet his burden of proof that the right eye condition was
causally related to the work injury.

5.) The workers’ compensation judge erred in finding that Mr. Wiltz
failed to meet his burden of proof and in denying all claims related to
his high blood pressure and hypertension.

6.) The workers’ compensation judge erred in reducing the attorney’s
fees to $8,000.00 when Mr. Wiltz obtained the maximum penalties of
$8,000.00 allowable under La.R.S. 23:1201(F).

7.) The workers’ compensation judge erred in only awarding fifty
percent of Mr. Wiltz’s expenses when Mr. Wiltz obtained the
maximum penalties of $8,000.00 allowable under La. R.S.
23:1201(F).

LAW AND ANALYSIS

“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 (citations omitted).

In Green v. National Oilwell Varco, 10-1041, p. 3 (La.App. 3 Cir. 4/27/11),

63 So.3d 354, 358 (citations omitted), we explained that, “‘[t]he determination of

coverage is a subjective one in that each case must be decided from all of its

particular facts.’ 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.’”

Furthermore, a legal error by the WCJ presents a question of law, which is

reviewed by determining whether the WCJ’s ruling is legally right or wrong.

4

LeBlanc v. Lafayette Consol. Gov’t, 07-1608 (La.App. 3 Cir. 5/28/08), 983 So.2d

1022.

Assignment of Error One - Failure of WCJ to Award Temporary Total
Disability Benefits

Mr. Wiltz asserts he is entitled to temporary total disability (“TTD”) benefits

pursuant to La.R.S. 23:1221(1)(b) for the period of time he missed work after the

accident and after his eye surgery on March 12, 2009.

Todd’s asserts that this issue was raised for the first time on appeal by Mr.

Wiltz and was not presented to the WCJ in the proceedings below, as there is no

ruling from the WCJ as to whether or not Mr. Wiltz is entitled to TTD benefits.

Mr. Wiltz contends that the issue was before the WCJ based on Mr. Wiltz’s answer

to Section 2 (c) of the Pretrial Questionnaire, entitled “Claims To Be Litigated At

The Hearing,” wherein it states, “Whether claimant is entitled to weekly

compensation benefits.”

The determination of whether a claimant is entitled to TTD benefits is a

factual issue to be decided by the WCJ and is governed by La.R.S. 23:1221(1).

Louisiana Revised Statutes 23:1221(1)(b) & (c) do not allow an award of TTD

benefits if an employee is engaged in any employment or self-employment, and

places the burden on the claimant to prove by clear and convincing evidence the

inability to engage in any kind of employment of any nature.

The WCJ’s oral reasons and judgment do not contain any ruling on Mr.

Wiltz’s entitlement to TTD benefits, nor does the record reflect any notice to the

WCJ by Mr. Wiltz’s counsel of the omission of this issue. The issue of Mr.

Wiltz’s entitlement to TTD benefits was not considered by the lower court.

5

Therefore, Mr. Wiltz’s first assignment of error cannot be considered by this court.

Boudreaux v. State, Dep’t of Transp. & Dev., 01-1329 (La. 2/26/02), 815 So.2d 7.

Assignments of Error Two and Three - Procedural Issues Relating to Mr.
Wiltz’s Entitlement to SEB

Mr. Wiltz’s second and third assignments of error address the issue of Mr.

Wiltz’s termination for cause from his position as manager of the Pinhook Road

location of Todd’s. A Todd’s employee working under Mr. Wiltz’s supervision

drove a customer’s vehicle without a driver’s license and wrecked the vehicle.

Todd’s company policy clearly states: “Only licensed drivers are allowed to

move customer vehicles.”

As previously indicated, counsel for both parties stipulated, and the WCJ

agreed, that the issue of Mr. Wiltz’s termination for cause, and its effect on his

claim for post termination supplemental earning benefits, would be heard by the

WCJ at the close of Todd’s case in chief.

Mr. Wiltz asserts in his second assignment of error that the WCJ erred in

requiring him to present his evidence first on the issue of termination for cause.

We find that the order of trial was within the WCJ’s discretion. The burden to

prove entitlement to SEB remained with Mr. Wiltz, and his termination for cause

was an integral part of that determination.

In Grillette v. Allied Compressors, 05-982 (La.App 3 Cir. 2/1/06), 923 So.2d

774, the claimant contended that regardless of the reason for her termination, she

was restricted to light duty work for the period in question and, therefore, was

entitled to SEB. Her employer contended that because of her “for cause”

termination, she was not entitled to SEB. The court stated, “[a]n employee bears

the burden of proving, by a preponderance of the evidence that the injury resulted

6

in his or her inability to earn ninety percent (90%) or more of the average pre-

injury wage under the facts and circumstances of the individual case.” Grillette,

923 So.2d at 778.

The Grillette court found that Ms. Grillette stipulated she was terminated for

cause for violating company policy and not for any reason related to her light duty

work restrictions and, thus, was not entitled to SEB. “The fact that a job is no

longer available to Grillette due to her ‘for cause termination’ is no different from

her refusing to accept the job in the first place and, thus, terminates her entitlement

to SEB.” Grillette, 923 So.2d at 779. Additionally, in Fusilier v. Slick

Construction, 94-11 (La.App. 3 Cir. 6/1/94), 640 So.2d 788, the court held that a

worker, who had been released to light duty work and refused his employer’s offer

of light duty work at the same wage and hours, was not entitled to SEB.

The burden of proof as to his entitlement to SEB remained with Mr. Wiltz.

The WCJ correctly required Mr. Wiltz to present his case on the issue of

termination for cause. Thus, Mr. Wiltz’s second assignment of error is without

merit.

Mr. Wiltz then urges in his third assignment of error that, “[t]he workers’

compensation judge legally erred in even deciding the issue of cause.” Counsel for

Mr. Wiltz, despite the stipulation of counsel and the agreement of the WCJ to have

the issue of termination for cause tried before the WCJ, now argues that Miller v.

Christus St. Patrick Hospital, 12-370 (La.App. 3 Cir. 10/24/12), 100 So.3d 404,

writ denied, 12-2467 (La. 1/11/13), 107 So.3d 619, holds that the issue of

termination for cause must be tried to a state district court. Based on the particular

facts and circumstances of this case, we do not agree. In Cash Point Plantation

7

Equestrian Center, Inc. v. Shelton, 40-647, p. 5 (La.App. 2 Cir. 1/25/06), 920

So.2d 974, 977 (citations omitted), the court stated:

A stipulation has the effect of a judicial admission or
confession, which binds all parties and the court. A stipulation
between the parties in a specific case is binding on the court when not
in derogation of the law; it is the law of the case. A judicial confession
may be revoked only on the ground of error of law.

Counsel for Mr. Wiltz and Todd’s stipulated that the WCJ would make the

determination of whether Mr. Wiltz was terminated for cause by violating Todd’s

company policy. The agreement of the parties allowing the WCJ to hear and

determine the issue of Mr. Wiltz’s termination for cause is a logical continuation of

the WCJ’s previous ruling on Mr. Wiltz’s right to SEB prior to his termination.

Moreover, the determination of whether Mr. Wiltz was terminated for cause is a

crucial and necessary step in order for the WCJ to determine whether Mr. Wiltz

was entitled to SEB post termination. It is well settled that termination for cause

deprives a claimant of the right to claim SEB. Grillette, 923 So.2d 774; Palmer v.

Alliance Compressors, 05-478 (La.App. 3 Cir. 11/2/05), 917 So.2d 510, writ

denied, 05-2440 (La. 3/24/06), 925 So.2d 1231. Thus, we find the stipulation is

binding on the parties and will not be disturbed on appeal. Mr. Wiltz’s third

assignment of error is without merit.

Pre-Termination Entitlement to SEB

At the hearing before the WCJ, Mr. Wiltz claimed that he was entitled to

pre-termination SEB, as his salary post-accident was less than the stipulated

$1,000.00 per week that he was earning prior to the January 15, 2009 accident.

“Factual findings in a workers’ compensation case are subject to the

manifest error or clearly wrong standard of appellate review.” Banks v. Indus.

Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d 551, 556.

8

A claimant is entitled to SEB, under La.R.S. 23:1221(3)(a)(i), “[f]or injury

resulting in the employee’s inability to earn wages equal to ninety percent or more

of wages at time of injury[.]” In Banks, 696 So.2d at 566 (citation omitted), the

supreme court stated:

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. . . .

Once the employee’s burden is met, the burden shifts to the
employer who, in order to defeat the employee’s claim for SEBs. . .
must prove, by a preponderance of the evidence, that the employee is
physically able to perform a certain job. . . .

However, if the employee’s inability to earn ninety percent of his pre-injury

wages is due to “circumstances” other than the work-related injury, he is not

entitled to SEB. Coleman v. Walter Indus., Inc./Jim Walter Homes, 10-1145, p. 9

(La.App. 1 Cir. 2/11/11), 56 So.3d 1258, 1262. The WCJ found based on the law

and the totality of the evidence, citing La.R.S. 23:1221(3) and Piossenot v. St.

Bernard Parish Sheriff’s Office, 09-2793, (La. 1/9/11), 56 So.3d 170, that Mr.

Wiltz failed to carry his burden of proof that he was entitled to any payment of

SEB from Todd’s.

The testimony at trial clearly supported the WCJ’s finding that Mr. Wiltz’s

pre-injury job as manager of three of Todd’s locations was within the classification

of light duty. The WCJ also found that Mr. Wiltz’s post injury and pre-termination

job as manager of the Pinhook location was also within the light duty classification.

The light duty classification was confirmed by the job analysis performed by the

vocational rehabilitation counselor and Mr. Wiltz’s own treating physician. Thus,

after March 24, 2009, Mr. Wiltz’s release to light duty was, in fact, a release to full

duty work at Todd’s.

9

Mr. Wiltz claimed he could not fulfill all of his previous job responsibilities,

as his job as a manager required him to lift heavy fifty-five gallon drums on a

regular basis. Mr. Wiltz was restricted from lifting more than fifty pounds, and the

drums were around four hundred pounds. Employees would lift the drums, place

the drums on dollies, and use dollies to move the drums when needed. The WCJ

found that Mr. Wiltz’s position as manager did not require him to engage in lifting,

tilting, or moving the fifty-five gallon drums, as there were other employees he

could instruct to place the heavy drums on the dolly and move drums as needed.

Additionally, the WCJ questioned Mr. Wiltz’s “veracity, in particular, his

testimony regarding the lifting of the fifty-five gallon drums.” Other managers at

Todd’s, including the new manager of the Pinhook location, testified that they

were not required to participate in moving the drums and would direct other

employees to do so. The WCJ concluded that Mr. Wiltz’s testimony lacked

credibility on this issue.

The record also clearly supports the WCJ’s finding that Mr. Wiltz failed to

meet his burden of proof that because of the change in his pay status, from

$1,000.00 per week to $18.00 per hour, he was no longer earning ninety percent of

his pre-injury wage post-accident and pre-termination. Prior to his injury, Mr.

Wiltz was paid a weekly salary of $1,000.00 based on his job of managing three of

Todd’s locations. Mr. Wiltz claimed that his job responsibilities and pay changed

after his injury. Shortly after his injury and prior to the surgery on his left eye,

however, Mr. Wiltz requested that he be allowed to manage only one location of

Todd’s due to the stress involved in managing multiple locations. Mr. Wiltz’s

request was granted by his employer, Todd Lemaire. Mr. Lemaire further testified

10

that several different employees had tried to manage multiple locations of Todd’s

and had been unsuccessful.

According to Mr. Lemaire, the change in Mr. Wiltz’s position was also

occasioned by the financial condition of Todd’s, which could no longer afford Mr.

Wiltz’s former managerial position due to a reduction in the number of employees.

Todd’s had filed for Chapter Eleven reorganization under the bankruptcy law. At

Mr. Wiltz’s request, his position was changed to manager of only the Pinhook

location of Todd’s with a pay rate of eighteen dollars per hour.

The Pinhook location of Todd’s is open six days a week from seven forty-

five a.m. to five p.m. The WCJ found that based on Mr. Wiltz’s testimony, he

“consistently worked less than forty hours a week.” He chose to begin his work

day “between eight-fifteen and eight-forty-five a.m., depending on the traffic and

leaves by three-fifteen to pick up his daughter.” Thus, the WCJ found factually

that Mr. Wiltz made a personal decision to work fewer hours, coming into work

late and leaving early to help care for his daughter. The WCJ also found that Mr.

Wiltz continued to wash cars on the side, thereby further supplementing his income.

The WCJ found and the record supports that Mr. Wiltz could have worked

forty-eight hours a week, which would have resulted in a gross wage of $936.00, a

figure in excess of ninety percent of his stipulated average weekly wage of

$1,000.00.2

The evidence in the record clearly supports the WCJ’s finding that when Mr.

Wiltz returned to work in March 2009, until his termination in November 2011, his

reduced hours had nothing to do with his inability to perform any of his duties.

2
Although, Dr. Moore restricted Mr. Wiltz to forty hours a week due to unstable
hypertension, as will be discussed, his hypertension is not causally related to the work-related
accident.

11

The circumstances of his reduced pay were a personal choice by Mr. Wiltz to work

reduced hours, which Todd’s allowed, and was unrelated to his work-related injury.

The WCJ found that this choice by Mr. Wiltz to work reduced hours was the cause

of his inability to earn ninety percent of his pre-injury wages. We affirm the

WCJ’s denial of any SEB to Mr. Wiltz from March 24, 2009, to his termination on

November 15, 2011. Coleman, 56 So.3d at 1262.

Post-Termination Entitlement to SEB

In Palmer v. Schooner Petroleum Services, 02-397 (La.App. 3 Cir. 12/27/02),

834 So.2d 642, writ denied, 03-367 (La. 4/21/03), 841 So.2d 802, a panel of this

court held that termination in and of itself, or without cause, does not destroy a

claimant’s entitlement to SEB. However, when an employee is terminated due to

the claimant’s actions or a violation of company policy, i.e., for cause, he is no

longer entitled to SEB. Grillette, 923 So.2d 774; Palmer v. Alliance Compressors,

917 So.2d 510.

The WCJ found that Mr. Wiltz was terminated for cause for violating Todd’s

company policy by allowing an employee under his supervision to drive a

customer’s vehicle without a driver’s license, causing a wreck and damage to the

customer’s vehicle. The WCJ also found that Mr. Wiltz was aware of the company

policy pertaining to unlicensed drivers and the manager’s responsibility for any

accident involving an unlicensed driver. Two prior incidents involving unlicensed

drivers occurred while Mr. Wiltz was a manager. In only one of the prior incidents

was he present on the site. Evidence in the record indicates that he was warned on

both prior occasions.

Mr. Wiltz testified that the policy was not in effect after the first accident, but

admitted that after the second accident, he was given a warning. The WCJ’s

12

finding that Mr. Wiltz was terminated for cause and, therefore, not entitled to SEB

is fully supported by the record and case law. We affirm the WCJ’s ruling that Mr.

Wiltz is not entitled to post-termination SEB dating from November 15, 2011, as he

was terminated for cause for violating a known company policy.

Analysis of the Fourth Assignment of Error – Right Eye Condition

In his fourth assignment of error, Mr. Wiltz argues the WCJ erred in finding

that Mr. Wiltz failed to meet his burden of proof that his right eye condition was

causally related to his work injury to his left eye.

Mr. Wiltz suffered a work injury to his left eye. He was later diagnosed with

glaucoma in his right eye for which he received medical treatment and surgery paid

for by Todd’s.

The WCJ reviewed the deposition of Dr. Hall, Mr. Wiltz’s treating physician

for his right eye. The WCJ recited verbatim Dr. Hall’s deposition testimony taken

October 28, 2010, in his reasons for ruling confirming that Dr. Hall was unable to

“state with any degree of medical certainty” that Mr. Wiltz’s glaucoma was related

to the work accident. Dr. Hall was asked, “what kind of things can cause pressure

change in the eye?” He responded, “[u]sually, it’s idiopathic. We don’t know.”

Mr. Wiltz had the burden to prove by a preponderance of the evidence that

the medical condition in his right eye is related to his work related accident

involving his left eye. To establish that a claimant is entitled to workers’

compensation benefits, claimant must prove by a preponderance of the evidence

that an accident occurred during the course and scope of his employment, the

accident caused his injuries, and the injury caused his disability. Ceasar v. Crispy

Cajun Rest., 94-30 (La.App. 3 Cir. 10/5/94), 643 So.2d 471, writ denied, 94-2736

(La. 1/6/95), 648 So.2d 931. “The employee has the burden of proving, by a

13

preponderance of the evidence, that the resulting disability is related to an on-the-

job injury.” Buxton v. Iowa Police Dep’t, 09-520, p. 12 (La. 10/20/09), 23 So.3d

275, 283.

Based on the evidence, we find no manifest error and affirm the WCJ’s

finding that Mr. Wiltz failed to carry his burden of proof that his right eye

condition was causally related to the work-related injury to his left eye. We also

affirm the WCJ’s award of a credit to Todd’s, pursuant to La.R.S. 23:1206, for all

costs of medical treatment to Mr. Wiltz’s right eye. Thus, Mr. Wiltz’s fourth

assignment of error is without merit.

Analysis of the Fifth Assignment of Error - Hypertension

In the fifth assignment of error Mr. Wiltz argues the WCJ erred in finding

that he failed to meet his burden of proof that his claim for high blood pressure

and/or hypertension was related to the work related injury to his eye and his stress

on the job.

The WCJ’s reasons reflect that in support of this claim, Mr. Wiltz submitted

a November 30, 2010 letter sent by his counsel, Ms. Manecke, to his treating

physician for this condition, Dr. Moore. The letter stated in pertinent part:

It is my understanding that you recently restricted Mr. Wiltz from
working more than forty hours a week due to unstable hypertension.
Assuming prior to Mr. Wiltz’s job injury, he did not suffer with high
blood pressure or require any treatment for his high blood pressure,
please advise whether you believe that it is more likely than not that
his hypertension is related to stress from his job and injury. And, it is
checked yes.

The WCJ then conducted a review of Mr. Wiltz’s medical records, including

both records from Lafayette General Medical Center dated October 29, 1999, and a

June 17, 2009 report from Dr. Moore under the portion entitled “History of Present

Illness.” From these medical records, the WCJ determined that Mr. Wiltz had

14

previously been diagnosed with and treated for “elevated high blood pressure” in

October 1999. The WCJ also quoted directly from additional progress notes from

Lafayette General, which reflected that on January 19, 2009, under the heading

“History,” it stated, “[h]e has been told that his blood pressure is high. He has an

appointment in two days to see his family doctor about being put on medicine for

his high blood pressure.”

The notes of Dr. Moore on June 17, 2009, also confirm that Mr. Wiltz’s high

blood pressure/hypertension is not related to his work related injury and job stress.

Once again the WCJ quotes, “The hypertension is associated with family history.

The patient’s cardiovascular risk factors include obesity, BMI greater than

30kg/m2, physical inactivity. The patient’s identifiable causes of hypertension

include none.”

The WCJ then further addressed the letter of Ms. Manecke to Dr. Moore on

November 30, 2010, and stated, “The letter to Dr. Moore by Ms. Manecke asked

Dr. Moore to assume prior to Mr. Wiltz’s job injury, he did not suffer with high

blood pressure. This question is flawed and inaccurate based upon, at minimal, the

October 29, 1999, Lafayette General Medical Center ER Physician’s Assessment.”

Based on the WCJ’s reasons, the medical reports in evidence, and the

claimant’s burden of proof, we agree that Mr. Wiltz failed to meet his burden of

proof that his high blood pressure/hypertension was causally related to his on the

job accident. Thus, this assignment of error is without merit.

Analysis of the Sixth and Seventh Assignments of Error – Attorney fees and
Costs

In the sixth and seventh assignments of error, Mr. Wiltz argues that the WCJ

erred in awarding only $8,000.00 in attorney fees and awarding only fifty percent

15

of Mr. Wiltz’s expenses, as Mr. Wiltz obtained the maximum penalties of

$8,000.00 under La.R.S. 23:1201(F).

The WCJ considered “the degree of skill and ability exercised by the

attorney, the amount of the claim, the amount recovered for the claimant and the

amount of time devoted to the case.” He concluded that $8,000.00 was an

appropriate amount based on the facts of the case and the results obtained. Mr.

Wiltz failed to prevail on any of the issues actually litigated, as Todd’s stipulated

to paying the maximum $8,000.00 penalty pre-trial.

Mr. Miller’s affidavit reflects that he spent fifty-seven hours on Mr. Wiltz’s

case prior to trial. He also seeks attorney fees for six hours post-trial for a total of

sixty-three hours at the hourly rate of $225.00. Ms. Manecke’s affidavit reflects

that she spent sixty-eight hours on Mr. Wiltz’s case prior to trial and another eight

hours in preparation of the post-trial memorandum for a total of seventy-six hours

at an hourly rate of $175.00. Together counsel for Mr. Wiltz sought a total of

$27,475.00 in attorney fees for the case.

Our supreme court, in McCarroll v. Airport Shuttle, Inc., 00-1123, p. 9 (La.

11/28/00), 773 So.2d 694, 700 (citations omitted), stated:

In our determination of the respective rights of the employee
and the attorney to the statutory attorney fees, a persuasive factor is
the methodology used to calculate the amount of the statutory attorney
fees. The only limitation on the amount is the reasonableness of the
fee awarded by the judge. The amount awarded rests within the
discretion of the workers’ compensation judge, as long as that amount
is supported by the record. Some of the factors taken into account by
the judge in fixing the amount of the fee are the degree of skill and
ability exercised by the attorney, the amount of the claim, the amount
recovered for the employee, and the amount of time the attorney
devoted to the case.

“Awards of penalties and attorney’s fees in workers’ compensation are

essentially penal in nature, being imposed to discourage indifference and

16

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

standard of review. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08),

980 So.2d 843.

Given our supreme court’s directive in McCarroll, we find no manifest error

in the WCJ’s award of $8,000.00 in statutory attorney fees. As previously

indicated, Mr. Wiltz did not prevail on any of his claims at trial and was awarded

$8,000.00 in statutory penalties based on a stipulation of the parties at the

beginning of trial. The parties also stipulated that the injury to Mr. Wiltz’s left eye

was work related and that his average weekly wage was $1,000.00.

As additional support for the WCJ’s holding on this issue, Todd’s urges on

appeal that testimony at trial questioned the basis of an affidavit submitted by of

one of the attorneys for Mr. Wiltz. Counsel for Todd’s sought to strike the

affidavit as not based on counsel’s personal knowledge, but on a review by

counsel’s secretary. In addition, Mr. Wiltz’s counsel was unable to state whether

there were duplicate time estimates for work performed by co-counsel.

The WCJ is allowed great discretion in the decision to award attorney fees.

Frank v. City of Lake Charles, 04-820 (La.App. 3 Cir. 11/10/04), 887 So.2d 679.

The supreme court in McCarroll, however, does require that the attorney fee

awarded be reasonable. Other panels in this circuit have affirmed awards where

$8,000.00 in statutory penalties were awarded, and counsel was awarded amounts

ranging from $5,000.00 to $10,000.00 in attorney fees. Mitchell v. Artcrete, Inc.,

17

09-492 (La.App. 3 Cir. 12/9/09), 24 So.3d 1000; Burnette v. Village of Esterwood,

09-680 (La.App. 3 Cir. 12/9/09), 25 So.3d 997.

The WCJ’s reasons clearly considered the directive given by the supreme

court in McCarroll in its determination that the award of $8,000.00 in attorney fees

was reasonable in this case. We agree and affirm the judgment of the WCJ.

Assessment of Costs

Mr. Wiltz contends the WCJ erred in only assessing fifty percent of the

claimant’s costs to Todd’s in the amount of $996.49 and seeks the full amount of

costs of $1,992.98. The decision of the WCJ in awarding costs is governed

pursuant to Section 6609 of the Workers’ Compensation Hearing Rules and directs

that the awarding of costs shall also be governed by La.Code Civ.P. art. 1920.

Louisiana Code of Civil Procedure Article 1920 allows a trial court to “render

judgment for costs, or any part thereof, against any party, as it may consider

equitable.” Thus, the determination of the award of costs is within the sole

discretion of the trial court and must not be disturbed on appeal unless there is an

abuse of that discretion. Middlebrooks v. Int’l Indem., 95-1364 (La.App. 3 Cir.

3/6/96), 670 So.2d 740. We find no abuse of discretion by the WCJ in ruling that

each party was to bear fifty percent of the costs.

DISPOSITION

For the foregoing reasons, we affirm the judgment in all respects. The costs

of this appeal are assessed to John Wiltz.

AFFIRMED.

18