Lafayette Steel Erector, Inc. v. James Constance

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1367

LAFAYETTE STEEL ERECTOR, INC., ET AL.

VERSUS

JAMES CONSTANCE

**********

APPEAL FROM THE
OFFICE OF WORKERS‟ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 11-08894
SAM L. LOWERY, WORKERS‟ COMPENSATION JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Mark Zimmerman
Attorney at Law
4216 Lake Street
Lake Charles, Louisiana 70605
(337) 474-1644
Counsel for Appellee:
James Constance

Eric J. Waltner
Allen & Gooch
Post Office Box 81129
Lafayette, Louisiana 70598-1129
(337) 291-1400
Counsel for Appellants:
Lafayette Steel Erector, Inc.
The Gray Insurance Company

KEATY, Judge.

In this workers‟ compensation case, Appellants, the employer and its

insurer, appeal from a judgment rendered by the workers‟ compensation judge

(WCJ) in favor of claimant. For the following reasons, we affirm the judgment

and award claimant additional attorney fees for work done on appeal.

FACTS AND PROCEDURAL HISTORY

Claimant, James Constance, began working as a welding tacker for

Lafayette Steel Erector, Inc. on September 21, 2009. He allegedly injured his left

ankle and foot in an unwitnessed accident that occurred on October 27, 2009. He

was sixty years of age at the time. Constance returned to work in a modified

capacity until he was laid off on November 6, 2009. Thereafter, Lafayette Steel

and its workers‟ compensation insurer, The Gray Insurance Company, (hereafter

sometimes referred to collectively as Appellants) paid medical benefits and

indemnity benefits to Constance based upon the maximum level allowed at the

time of the accident, $577.00 per week. On March 23, 2010, orthopedic surgeon,

Dr. Christopher Hebert, performed surgery on Constance‟s left foot, which

consisted of a tendon transfer and reconstruction. Constance also claimed that he

later injured his right shoulder in December 2010, when his left foot gave out

while he was walking down stairs and had to grab the handrail to stop himself

from falling. On December 2, 2012, Appellants reduced Constance‟s indemnity to

$416.00 per week in supplemental earnings benefits (SEBs).

The matter proceeded to trial on January 15 and 31, 2013. In oral reasons

for judgment rendered on May 1, 2013, the WCJ found that Constance injured his

left foot and ankle in a work-related accident on October 27, 2009. Appellants‟

La.R.S. 23:12081 defense was denied. Constance was awarded SEBs based on a

zero earnings capacity from December 2, 2012, the date of the benefit reduction,

forward, along with a $2,000.00 penalty for Appellants‟ improper reduction of

benefits. The WCJ found that Constance‟s right shoulder injury was compensable

and not prescribed and awarded him a $2,000.00 penalty for Appellants‟ failure to

reasonably controvert that claim. Because it determined that the initial indemnity

payment to Constance was untimely and not reasonably controverted, he was

awarded a $1,600.00 penalty and a $500.00 attorney fee, both to be paid solely by

Lafayette Steel. Additional attorney fees of $13,900.00 were assessed against

Appellants, and they were ordered to pay litigation expenses totaling $1,173.62.

Finally, Appellants were ordered to pay legal interest on all amounts awarded in

the judgment.

Appellants now appeal, asserting that the WCJ committed legal or manifest

error: 1) in denying their fraud defense; 2) in finding Constance credible; 3) in

finding an accident and injury; 4) in not finding Constance‟s shoulder injury

prescribed; 5) in finding that Constance had no wage earning capacity; 6) in

holding that Constance‟s layoff did not eliminate his right to SEBs; 7) in assessing

penalties and attorney fees against them regarding the reduction of benefits; 8) in

assessing penalties and attorney fees given the significant evidence calling into

question the compensability; and 9) in the quantum of attorney fees awarded.

Constance answered the appeal requesting that this court uphold the judgment of

the WCJ and award him additional attorney fees on appeal.

1
Hereafter, this opinion will refer to La.R.S. 23:1208 as the fraud statute.

2

DISCUSSION

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
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 (alteration in original), writ denied, 02-1164 (La. 6/14/02), 818

So.2d 784.

The workers‟ compensation judge has great discretion to assign
whatever weight he deems appropriate to evidence that has been
admitted. La. Workers’ Comp. Corp. v. Gray, 34,731 (La.App. 2 Cir.
5/9/01), 786 So.2d 310. 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.

Vidrine v. La-Tex Rubber & Specialties, Inc., 07-157, p. 4 (La.App. 3 Cir.

5/30/07), 958 So.2d 146, 149.

The Fraud Defense

Louisiana Revised Statutes 23:1208(A) provides that it is “unlawful for any

person, for the purpose of obtaining . . . any benefit or payment . . . to willfully

make a false statement or representation.” “Any employee violating this Section

shall, upon determination by workers‟ compensation judge, forfeit any right to

compensation benefits under this Chapter.” La.R.S. 23:1208(E).

In order for there to be a forfeiture of workers‟ compensation
benefits under La.R.S. 23:1208, the employer must prove (1) the

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claimant made a false statement or representation, (2) that the
statement was willfully made, and (3) the statement was made for the
purpose of obtaining or defeating any benefit or payment. Resweber
v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7;
Babineaux v. Moss Motors, 06-749 (La.App. 3 Cir. 12/6/06), 944
So.2d 882. However, the mere making of inadvertent or
inconsequential false statements will not result in forfeiture.

Rougeou v. St. Francis Cabrini Hosp., 12-854, p. 5 (La.App. 3 Cir. 2/6/13), 107

So.3d 851, 856.

Appellants assert that Constance violated the fraud statute by denying prior

right-foot-nerve injuries to his doctors, by misstating his inability to drive, by

exaggerating his symptoms when visiting medical providers, and by

misrepresenting his involvement in prior automobile accidents. Constance

counters that he did not know if he had suffered injury to the nerves in his right

foot as a result of motorcycle accident that occurred in the 1990s. There is

evidence, however, that he disclosed the occurrence of that accident and injury to

his orthopedist, Dr. Hebert. Constance submits that it was Dr. Hebert who opined

that such prior accident could have left Constance with a residual nerve problem

in his right foot and possible susceptibility to nerve problems in his feet.

Constance submits that he was mistaken when he stated in deposition that he had

not driven before April 2012 and that he testified truthfully at trial regarding his

driving habits/ability. He also admits that after viewing surveillance video

showing inconsistencies between how he ambulated when attending doctors‟

appointments, Dr. Hebert expressed some concerns about the veracity of his

complaints. Nevertheless, Constance contends that Dr. Hebert maintained his

opinion that Constance suffered a work accident that left him disabled. Finally,

Constance submits that he clarified at trial that he was involved in prior

automobile accidents in which he was not driving at the time. In sum, Constance

4

contends that any of the inaccuracies pointed out by Appellants was either

inconsequential or inadvertent and, thus, did not mandate a conclusion that he

violated the fraud statute.

In denying Appellants‟ fraud defense, the WCJ stated the following in its

oral reasons for judgment:

There are, as could be expected, some minor discrepancies in
parts of his testimony, but the law makes allowances for that if it
appears that a claimant is more confused and forgetful than
conniving. Granted, Mr. Constance is not the best historian, but there
is very little daylight between the essentials of his testimony and the
substance of the medical records.

With regard to the surveillance, the WCJ stated that Constance “presented

reasonable, and I think truthful, explanations for all of the activities caught on the

video” and that, after being shown the video, Dr. Hebert “did not seem impressed,

certainly not enough to consider changing his work status restriction from

„sedentary.‟”

After review of the conflicting testimony and evidence presented at trial, we

find no manifest error in the WCJ‟s finding that Appellants did not carry their

burden of proof regarding Constance‟s violation of La.R.S. 23:1208, especially in

light of the WCJ‟s finding that Constance was a credible witness, as will be

discussed more fully in the following section.

Constance’s Credibility

“In a workers‟ compensation case, as in other cases, the appellate court‟s

review of factual findings is governed by the manifest error or clearly wrong

standard.” Hebert v. C.G. Logan Constr., Inc., 06-612, p. 2 (La.App. 3 Cir.

11/2/06), 942 So.2d 77, 79. “Whether a claimant has carried his burden of proof

5

and whether testimony is credible are questions of fact to be determined by the

workers‟ compensation judge.” Id.

Appellants contend that they pointed out a myriad of inconsistencies and

discrepancies between Constance‟s testimony and the evidence which shows that

Constance is not credible. For example, Appellants refer to evidence showing that

Constance was getting hydrocodone from the Veteran‟s Administration Medical

Center in Alexandria, Louisiana, (VA) while treating with Dr. Hebert and

Dr. Steven Staires, his pain management physician, and in violation of narcotic

medication agreements that he had signed with them. Appellants also point to

testimony from Drs. Hebert and Staires that Constance‟s reports of pain did not

always follow the ordinary course of recovery. In addition, Appellants submit that

the results of Functional Capacity Evaluations (FCEs) conducted in December

2011 and June 2012 showed discrepancies, such as his ability to descend stairs

despite his complaints of left foot/ankle pain. Finally, Appellants submit that

when showed a photograph purportedly showing Constance‟s foot on June 19,

2012, both Dr. Hebert and Dr. Staires testified that they never observed

Constance‟s foot appearing as it did in the photograph.

Constance counters that the contemporaneous medical evidence from just

two days after his initial accident, the physical therapy records, Dr. Hebert‟s

records, and the testimony of Constance‟s wife corroborate his testimony

regarding the occurrence of a workplace accident and resulting injury to his left

foot. In addition, Constance submits that any breaches caused by his obtaining

duplicate medications from the VA were relatively minor, especially given the

fact that Dr. Staires is still treating him. Constance further submits that while the

extent of his pain may not be within the norm, his doctors nevertheless agree that

6

his work accident caused his current left-foot neuritis that leaves him disabled and

only able to do sedentary work. Finally, Constance argues that the

aforementioned opinions of his doctors remained the same despite their having

acknowledged some inconsistencies in the photograph and in his FCE results.

All of the discrepancies noted by Appellants were made known to the WCJ

at trial, and, despite those discrepancies, the WCJ found Constance to be truthful.

Given the “great deference” owed to the trier of fact, who was able to observe

Constance‟s demeanor on the witness stand, we find no manifest error in the

WCJ‟s determination that Constance was a credible witness. See Rosell v. ESCO,

549 So.2d 840, 844 (La.1989).

Accident and Injury

A workers‟ compensation claimant has the burden of
establishing by a preponderance of the evidence that an accident
occurred on the job and that he sustained an injury. Holiday v.
Borden Chem., 508 So.2d 1381 (La.1987). 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. Bruno v. Harbert Int’l, Inc., 593 So.2d 357
(La.1992). Corroboration of the worker‟s testimony may be provided
by the testimony of co-workers, spouses, friends, or by medical
evidence. Id. Barring circumstances that cast suspicion on the
reliability of the worker‟s uncontradicted testimony, the fact finder
should accept the testimony as true when determining whether the
worker has discharged his burden. Brown v. Kwok Wong, 01-2525
(La.App. 1 Cir. 12/20/02), 836 So.2d 315.

Hebert, 942 So.2d at 79-80.

Appellants contend that Constance failed to satisfy the Bruno criteria

relative to unwitnessed accidents, and, thus, the WCJ erred in finding that he

proved the occurrence of work-related accidents to his left foot and right shoulder.

Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). They insist that because

7

Constance knew that his job was temporary, he had “an incentive to feign an

accident” and, thereby, extend his employment. On the other hand, Constance

submits that the evidence reveals that his supervisor was made aware of the injury

to his left foot on the day it occurred and that an accident report was prepared, and

Constance sought medical treatment with the employer‟s provider of choice

within two days of the October 27, 2009 accident. Constance further submits that

the evidence shows that he reported to both the VA and to Dr. Hebert that he had

injured his right shoulder in December 2010, when he was descending stairs

outside his home and had to catch himself to prevent himself from falling when

his left foot gave out.

The WCJ concluded that Constance sustained a work-related accident that

injured his left foot in October 2009 and that he suffered another accident in

December 2010 that was related to his earlier accident, resulting in an injury to his

right shoulder. His reasons for judgment provide:

Not a single witness came forward to cast any suspicion on Mr.
Constance‟s version of events on the rainy day when he says he
slipped in the mud at a construction site, jamming his left foot into a
hole, causing the injuries for which Dr. Hebert attempted to repair
surgically. The accident seems to have been reported promptly and
correctly. There was certainly nothing in the medical reports to
suggest exaggeration of symptoms.

The WCJ further noted that Dr. Hebert‟s records revealed that Constance had

“post operatively wrenched his shoulder” and that Dr. Hebert “directly related the

shoulder experience with the failure of the injured foot to properly support the

claimant‟s body.” After noting that Appellants investigated the initial accident,

verified its occurrence, and found Constance entitled to both medical and

indemnity benefits, the WCJ found that Appellants “did absolutely no

investigation of the shoulder injury,” decided that it was not related to the original

8

compensable work accident, and became “convinced that Mr. Constance was

actively involved in the commission of fraud.”

There is no merit to Appellants‟ argument that Constance‟s testimony

regarding the two accidents was not “corroborated by the circumstances

following” their occurrence or that “other evidence discredits or casts serious

doubt upon [Constance‟s] version of the incident.” Bruno, 593 So.2d at 361.

Moreover, Appellants‟ reliance on Ardoin v. Firestone Polymers, L.L.C., 10-245

(La. 1/19/11), 56 So.3d 215, wherein the claimant did not report his accident to his

employer until eighteen months after its occurrence is readily distinguishable from

the instant matter. Here, the circumstances following both of Constance‟s

accidents corroborated their occurrence, and Appellants‟ accusation that

Constance manufactured those accidents is simply not supported by the evidence.

The WCJ did not err in finding that Constance suffered from an injury-producing

accident at work in October 2009, which led to an additional injury in December

2010.

Shoulder Injury

Appellants argue that Constance‟s claim for the injury to his right shoulder

is prescribed under La.R.S. 23:1209 because he did not make a claim for that

injury until the second date of trial of this matter on January 31, 2013. Constance

disputes that assertion and refers our attention to a VA progress note dated

December 21, 2010, that contains a reference to a right-shoulder injury, a January

11, 2011 demand letter to the insurance adjuster seeking approval of an evaluation

of his shoulder after a recent incident where his left foot gave out, a January 12,

2011 note from Dr. Hebert stating that he was going to refer Constance to a

Dr. Williams for his shoulder pain, and an answer that he filed into the record on

9

December 6, 2011, wherein he listed a right-shoulder injury as one of the matters

in dispute.2

Brenda Guillot, the insurance adjuster who handled Constance‟s file,

admitted at trial that she had received Dr. Hebert‟s note that he was going to seek

a referral to address Constance‟s shoulder injury. In light of that admission,

coupled with the other record evidence showing that Appellants were put on

notice of Constance‟s shoulder injury well within one year of its occurrence and

within the context of this pending claim, we cannot say that the WCJ erred in

concluding that Constance‟s right-shoulder injury was not prescribed.

Wage Earning Capacity

“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 [employer‟s] community or reasonable geographic location.
La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at
1009.

2
Claimant acknowledges that the answer references an October 3, 2011, rather than a
mid-December 2010 shoulder injury, attributing the discrepancy to the fact that he fell several
times due to his left foot giving out.

10

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) (last alteration ours) (footnote omitted). In

Banks, the supreme court stated that to “discharge its burden of proving job

availability,” an employer has to show, amongst other things, “the existence of a

suitable job within claimant‟s physical capabilities and within claimant‟s or the

employer‟s community or reasonable geographic region.” Banks, 696 So.2d at

557 (emphasis added). “By „suitable job,‟ we mean a job that claimant is not only

physically capable of performing, but one that also falls within the limits of

claimant‟s age, experience, and education, unless, of course, the employer or

potential employer is willing to provide any additional necessary training or

education.” Id.

Here, Appellants claim that the WCJ committed manifest error in finding

that they failed to prove that Constance had a wage earning capacity of $9.25 per

hour and was, thus, entitled to a reduced compensation rate based upon that figure.

Appellants base their claim on the testimony of Dawn Marroquin, the vocational

rehabilitation counselor, who after evaluating Constance, located four available

jobs which Constance‟s doctors approved and which Appellants believed

established Constance‟s wage earning capacity.

Constance vehemently disagrees with Appellants‟ argument in this regard,

insisting that the jobs identified by Ms. Marroquin were not suitable in light of the

disability he suffers as a result of his work accident, the strong medicine he takes

for his pain resulting therefrom, and taking into consideration his hearing loss

which is thoroughly documented in the VA records. Constance further submits

11

that he is not qualified for the jobs offered given his advanced age, his lack of

office and computer skills, and his educational level.3

The WCJ determined that Appellants‟ improperly converted Constance‟s

benefits to SEBs because none of the jobs offered by Appellants “came close to

providing what the law calls, „suitable employment.‟” He questioned how

Ms. Marroquin “could overlook the fact that Mr. Constance is profoundly hearing

impaired,” and he determined that the one-day computer course that Ms.

Marroquin had Constance complete “did very little to bring this man who reads

and writes at scarcely grade-school level to the technical requirements of some of

the jobs for which he was sent to apply.”

Conflicting evidence was offered at trial regarding Constance‟s ability to

perform the four jobs offered to him by Ms. Marroquin. After being presented

with that evidence and having observed Constance during the two-day trial of this

matter, the WCJ determined that none of those jobs were suitable. Considering all

of the evidence and testimony, we conclude that the WCJ was not manifestly

erroneous or clearly wrong in finding that Appellants failed to prove that

Constance had a wage earning capacity of $9.25 per hour.

Right to SEBs after Layoff

Gregory Mouton, Constance‟s supervisor at Lafayette Steel, testified that

Constance and most of his co-workers were laid off between November 6 and 7,

2009, when the Acadian Center for the Arts job for which they were hired was

completed. Appellants assert that the WCJ erred in finding that Constance was

entitled to SEBs after the date he was laid off, citing Dufrene v. Southern

3
Although Constance testified that he completed the eighth grade, Ms. Marroquin stated
that his reading, spelling, and math abilities measured at the fourth grade level.

12

Industrial Contractors, Inc., 95-759 (La.App. 3 Cir. 1/31/96), 670 So.2d 290, for

the proposition that when an employee is laid off as a result of economic

circumstances, the employer‟s exposure for indemnity benefits ceases. Constance

counters that Dufrene is distinguishable from the instant matter because the

claimant therein was able to resume his work as a pipefitter after his work

accident.

We agree that Dufrene is not controlling in this matter. In that case, we

noted that “[p]laintiff offered no evidence to show that he could not earn ninety

percent or more of his pre-accident wages.” Id. at 293. Here, on the other hand,

Constance presented ample evidence of his inability to do so. The WCJ did not

err in finding Constance entitled to receive SEBs after the date of his layoff.

Penalties and Attorney Fees

“The decision to impose penalties and attorney fees is essentially a factual

issue subject to the manifest error or clearly wrong standard of review.” Weaver v.

S. Erectors, Inc. of Fla., 10-783, p. 13 (La.App. 3 Cir. 12/8/10), 53 So.3d 547, 555.

If an employer discontinues the payment of benefits and “such discontinuation is

found to be arbitrary, capricious, or without probable cause, [the employer] shall

be subject to the payment of a penalty . . . and a reasonable attorney fee for the

prosecution and collection of such claims.” La.R.S. 23:1201(I).

A claim for benefits has been reasonably controverted when the
employer “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.”

Weaver, 53 So.3d at 555 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9

(La. 12/1/98), 721 So.2d 885, 890). “An employer avoids the imposition of

penalties and attorney‟s fees by satisfying its continuing obligation to investigate,

13

assemble, and assess factual information prior to it denying benefits.” Odom v.

Kinder Nursing Home, 06-1442, p. 24 (La.App. 3 Cir. 4/25/07), 956 So.2d 128,

141.

Appellants argue that because their vocational rehabilitation counselor

identified four jobs that were approved by Constance‟s doctors, the WCJ

committed manifest error in finding that its reduction of Constance‟s benefits was

arbitrary and capricious so as to subject it to a penalty and attorney fees.

Constance disagrees and submits that, rather than realistically taking into

consideration his lack of transferrable job skills and his obvious hearing problems,

Appellants improperly used the vocational rehabilitation process to lower his

SEBs and to beef up its claim that he was guilty of fraud. As such, Constance

submits that this court should affirm the WCJ‟s decision to award him a penalty

for Appellants‟ improper reduction of his benefits.

In its oral reasons for judgment, the WCJ found that “[t]he reduction of his

benefits and conversion to S.E.B. status fell short in all aspects of meeting the

minimum requirements for doing so as set forth in [Banks, 696 So.2d 551.]”

Given our affirmation of that finding, we cannot say that the WCJ committed

manifest error in awarding Constance a penalty and attorney fees for Appellants‟

improper reduction of his indemnity benefits.

Appellants next argue that even if this court finds no error in the WCJ‟s

finding that Constance suffered compensable accidents and did not violate the

fraud statute, we should, nevertheless, find that the WCJ erred in awarding

Constance any penalties and attorney fees because of what it terms “significant

evidence calling into question” those findings. Constance disagrees, alleging that

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Appellants ignored the evidence and unreasonably maintained that he fabricated

his shoulder injury to bolster his claim for benefits.

With regard to Constance‟s right shoulder injury, the WCJ found:

Undeterred by Dr. Hebert‟s request that his patient be
evaluated by Dr. Williams, the insurer decided that the shoulder
incident was not due in any fashion to the job ankle injury.

I am still unclear as to precisely how the adjuster reached that
conclusion. It certainly was not the result of any investigation
because the record shows that there was none.

From all accounts, it looks as if the insurer did a very thorough
investigation of the initial work accident and then two years later
decided it was all wrong. Then, she did absolutely no investigation
of the shoulder injury and promptly decided her decision was totally
correct.

It appears that at some point, for some reason, the insurer
became convinced that Mr. Constance was actively involved in the
commission of fraud, and then spent a great deal of time, effort, and
resources in proving it.

The record provides ample support for the WCJ‟s conclusion that

Appellants did not reasonably controvert the compensability of Constance‟s right

shoulder injury. Accordingly, we find no manifest error in the WCJ‟s award of a

penalty and attorney fees on that basis.

Quantum of Attorney Fees

An appellate court reviews the amount of attorney fees that a WCJ awards a

claimant under the abuse of discretion standard. Duplechain v. Town of Church

Point, 12-475, 12-476 (La.App. 3 Cir. 12/19/12), 107 So.3d 800.

Appellants argue that the amount of attorney fees awarded to Constance

should be significantly reduced. Their argument focuses on the fact that

Constance originally asserted that he was due penalties on several bases and that,

over the course of trial, more bases were added while others were withdrawn.

15

Citing Magbee v. Federal Express, 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d

1048, Constance counters that an attorney fee award should be based on his

attorney‟s efforts in regard to the entire litigation rather than on only the time

spent on penalty-related issues. In addition, Constance points out that not only did

he prevail on all of the issues which he presented to the WCJ, but he was also

successful in defending Appellants‟ claims that he was guilty of committing fraud

and that he was never injured at all.

In its oral reasons for judgment, the WCJ remarked that Appellants insisted

that Constance “was little more than a clever, conniving malingerer who staged

and faked his 2009 injury in the first place” and that he “commit[ed] fraud in

exaggerating his symptoms and by making material misrepresentations for the

sole purpose of getting tax-free workers‟ compensation payments.” After

reviewing the evidence, however, the WCJ determined that “[t]here was virtually

no good reason to have questioned the occurrence of this accident in 2009, and

there appears to be no better reason to bring the issue up some three of four years

later.” The WCJ further found that there was “nothing in the medical reports to

suggest exaggeration of symptoms.”

Given the extremely contentious nature of this dispute, the amount of work

that Constance‟s attorney devoted to this matter,4 and the success that Constance‟s

attorney achieved on behalf of his client, we find no abuse of discretion in the

amount of the attorney fees award.

4
Constance‟s attorney, Mark Zimmerman, filed a Fee Petition as an exhibit at trial
wherein he detailed the seventy-two hours he spent on this matter.

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Constance’s Answer to Appeal

Constance answered Defendant‟s appeal seeking additional attorney fees

for the work done on appeal. “Awards of attorney fees in workers‟ compensation

cases are essentially penal in nature, and are intended to deter indifference and

undesirable conduct by employers and insurers toward injured employees.” Smith

v. Quarles Drilling Co., 04-179, p. 6 (La. 10/29/04), 885 So.2d 562, 566. 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.” Accordingly, we award Constance

additional attorney fees of $4,000.00 for the work done on this appeal.

DECREE

For the forgoing reasons, the judgment in favor of James Constance and

against Lafayette Steel Erector, Inc. and The Gray Insurance Company is affirmed.

We award Constance additional attorney fees in the amount of $4,000.00 for work

done on this appeal. Costs of this appeal are assessed against Lafayette Steel

Erector, Inc. and The Gray Insurance Company.

AFFIRMED.

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