James Long v. Bengal Transportation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 13-793

JAMES LONG

VERSUS

BENGAL TRANSPORTATION

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 12-06213
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery,
Judges.

AFFIRMED AS AMENDED.

H. Douglas Hunter
Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P.
306 East North Street
P. O. Drawer 1329
Opelousas, LA 70571-1329
(337) 948-8201
COUNSEL FOR DEFENDANT/APPELLANT:
Bengal Transportation

Eugene A. Ledet, Jr.
Dalrymple & Ledet, L.L.C.
1450 Dorchester Drive (71301)
P. O. Drawer 14440
Alexandria, LA 71315
(318) 442-1818
COUNSEL FOR PLAINTIFF/APPELLEE:
James Long

EZELL, Judge.

In this workers’ compensation case, Bengal Transportation Services appeals

the decision of the workers’ compensation judge (WCJ) below awarding James

Long supplemental earning benefits (SEB), as well as penalties and attorney fees.

For the following reasons, we hereby affirm the decision of the WCJ.

Mr. Long was injured in a workplace accident on June 24, 2011, while

working for Bengal as a truck driver. He suffered a left ankle fracture, requiring

surgery. Bengal does not dispute the workplace injury. Dr. Catherine Johnson, Mr.

Long’s orthopedist, determined that Mr. Long was at maximum medical

improvement status on May 22, 2012, and he was released to return to work at

medium duty. A functional capacity evaluation (FCE) was conducted which

concluded that Mr. Long would be able to perform his pre-accident job with

modifications. Specifically, the FCE restricted Mr. Long from squatting or

crouching, limited walking to thirty minutes at a time, and limited him to thirty

pounds of pushing and/or pulling.

Bengal hired Buster Fontenot, a vocational rehabilitation specialist, to

perform a job assessment on Mr. Long. He concluded that Mr. Long could return

to work at Bengal in a position where he would drive only, not binding his loads.

This position was approved by Dr. Johnson. Unfortunately, this position did not

exist at Bengal; drivers are required, under federal law, to inspect their trucks and

trailers before every run, as well as their loads before the run, within the first fifty

miles, and thereafter every 150 miles or three hours of drive time, whichever

comes first, and readjust the bindings if needed. Mr. Long was instead offered his

prior position at full duty, which required him to climb, stoop, squat, and kneel in

order to perform the inspections. When he did not report for work at his old

position, Bengal terminated SEB and Mr. Long filed the current workers’

compensation action.

After trial, the WCJ determined that Mr. Long established that he was

unable to earn ninety percent of his pre-injury wages and that Bengal failed to

show that there was a position available for him which would pay him at least 90%

of his pre-injury earnings. Moreover, the WCJ determined that the termination of

benefits was arbitrary and capricious. Bengal was ordered to reinstate SEB and

was assessed a $4,000.00 penalty and attorney fees of $7,500.00 for the suspension

of benefits. From that decision, Bengal appeals.

Bengal asserts two assignments of error on appeal. It claims that the WCJ

erred in awarding Mr. Long SEB, and that the WCJ erred in awarding him

penalties and attorney fees for the termination of his benefits.

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.

Bengal first claims that the WCJ erred in awarding Mr. Long SEB after he

was able to return to work as a truck driver.

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“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 (alteration 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 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.

According to Mr. Long’s testimony, he is unable to squat, kneel, stoop,

crouch, or crawl. This is corroborated by the FCE, as well as the medical records

of Dr. Johnson. It’s further clear from the testimony of Bengal’s representative

and safety director, Ms. Dana Myers, that there was never a job available to Mr.

Long only driving a truck. The only job that that was available to him at Bengal

was his full prior employment, which entailed inspections of his truck and load as

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frequently as four to five times a day under federal law. Mr. Long testified that

these inspections would require him to squat, kneel, stoop, crouch, or crawl - all

tasks he could not physically perform and that he was restricted from doing by his

physician. Accordingly, there is a reasonable factual basis for the WCJ’s finding

that Mr. Long had established that he’s entitled to SEB. As that finding is

supported by the record, it cannot be manifestly erroneous. This assignment of

error is without merit.

Finally, Bengal claims that the WCJ erred in granting Mr. Long penalties

and attorney fees for its termination of Mr. Long’s benefits. The Louisiana

Supreme Court discussed the meaning of “reasonably controverting a claim” in

Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890,

as follows:

In general, one can surmise from the plain meaning of the words
making up the phrase “reasonably controvert” that in order to
reasonably controvert a claim, the defendant must have some valid
reason or evidence upon which to base his denial of benefits. Thus, to
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 determination of whether an employer should be cast with penalties and

attorney fees in a workers’ compensation case is essentially a question of fact and

subject to the manifest error/clearly wrong standard of review. Reed v. Abshire, 05-

744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224.

The record before this court does not show that the WCJ erred in granting

Mr. Long penalties and attorney fees for Bengal’s failure to pay SEB. The medical

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records show that the one job Mr. Long was cleared for by his doctor was for a

position where he would drive only. This position, as stated by Ms. Myers, did not

exist. In fact, Ms. Myers testified that the only position ever offered him back his

old job at full duty, which he could not perform due to his injury and the

restrictions imposed by his physician. The fact that Mr. Long was never offered

the imaginary driving-only position shows that Bengal did not rely on Mr.

Fontenot’s report prior to the termination of benefits, as it knew the job offered

required more than driving only. Bengal cannot rely on a report by a vocational

rehabilitation specialist as reasonably controverting Mr. Long’s claims when

Bengal itself admitted that the report was faulty. There is no evidence the WCJ’s

awards of penalties and attorney fees were manifestly erroneous. Thus, this

assignment of error is also without merit.

Mr. Long has answered this appeal seeking additional fees for work done on

appeal. Considering our decision affirming the judgment, Mr. Long is entitled to

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

For the above reasons, the decision of the WCJ is hereby affirmed. Mr.

Long is awarded additional attorney fees of $3,000.00 for work performed on this

appeal. Costs of this appeal are hereby assessed against Bengal Transportation.

AFFIRMED AS AMENDED.

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