Houston Freeman, Jr. v. West Fraser, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-691

HOUSTON FREEMAN, JR.

VERSUS

WEST FRASER, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF GRANT, NO. 11-09477
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

John Craig Jones
Attorney at Law
131 Hwy 165 South
Oakdale, LA 71463
(318) 335-1333
COUNSEL FOR PLAINTIFF-APPELLEE:
Houston Freeman, Jr.

John Joseph Rabalais
Heather W. Blackburn
Rabalais, Unland & Lorio
200 Caroline Court
Covington, LA 70433
(985) 893-9900
COUNSEL FOR DEFENDANT-APPELLANT:
West Fraser, Inc.

PICKETT, Judge.

West Fraser, Inc. appeals a judgment of the trial court finding Houston

Freeman sustained a compensable injury and awarding workers’ compensation

benefits, penalties, and attorney fees.

STATEMENT OF THE CASE

Freeman suffered a contusion to his hip when he fell at work on December

28, 2010. His doctor released him to light-duty work in late February 2011. West

Fraser offered him a position as a security guard checking in trucks beginning on

March 7, 2011, where he only had to do limited walking. Freeman worked twelve

hours the first day, and then four hours on the next day before he claimed the pain

to his hip was too great to continue. West Fraser offered him a position where he

had to do no walking, but Freeman never replied to their offer. Freeman claimed

he never received notice of the new position but told his cardiologist that he

suffered heart problems because of the stress associated with his employer calling

him back to work. His cardiologist indicated he was unable to work from March

24, 2011 through May 17, 2011, due to shortness of breath and chest pain. West

Fraser cut off Freeman’s benefits effective March 2, 2011.

On May 3, 2011, Dr. Mark Dodson, Freeman’s treating physician for his hip

injury, indicated in response to a query that he agreed with the opinion of a second

doctor that Freeman’s hematoma to his hip had completely resolved. He also

agreed with the suggestion of a work-hardening program. Dr. Dodson also

prescribed treatment for Freeman with a pain management specialist. Freeman

eventually completed the work-conditioning program. On September 19, 2011,

Dr. Dodson stated that Freeman had reached maximum medical improvement. He

began treating with a pain management specialist in January 2012, continuing

through October 2012.

The workers’ compensation judge (WCJ) found that Freeman suffered a

workplace injury on December 28, 2010. The WCJ awarded temporary total

disability (TTD) benefits from March 2, 2011 through September 19, 2011, and

supplemental earnings benefits (SEB) from September 20, 2011. The WCJ found

that West Fraser was responsible for the pain management treatment prescribed by

Dr. Dodson. The WCJ found that Freeman did not commit fraud by giving false

information for the purpose of receiving benefits. Finally, the WCJ assessed a

penalty of $4,000.00 against West Fraser for terminating Freeman’s benefits on

March 2, 2011, and additionally awarded $15,000.00 in attorney fees. West Fraser

now appeals.

ASSIGNMENTS OF ERROR

On appeal, West Fraser asserts five assignments of error:

1. The workers’ compensation judge erred in awarding Freeman
temporary total disability benefits from March 2, 2011, through
September 19, 2011.

2. The workers’ compensation judge erred in holding that Freeman was
entitled to supplemental earnings benefits starting September 20,
2011.

3. The workers’ compensation judge erred in failing to find Freeman was
entitled to pain management treatment.

4. The workers’ compensation judge erred in failing to find Freeman
violated La.R.S. 23:1208.

5. The workers’ compensation judge erred in awarding penalties and
attorney fees.

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DISCUSSION

The WCJ’s finding that Mr. Freeman suffered a workplace injury on

December 28, 2010, is not in dispute. The question posed by West Fraser is

whether the workplace injury, a deep contusion of his left hip, caused Freeman to

become temporarily totally disabled.

Louisiana Revised Statutes 23:1221(1)(c) states, in pertinent part:

[C]ompensation for temporary total disability shall be awarded only if
the employee proves by clear and convincing evidence, unaided by
any presumption of disability, that the employee is physically unable
to engage in any employment or self-employment, regardless of the
nature or character of the employment or self-employment, including
but not limited to any and all odd-lot employment, sheltered
employment, or employment while working in any pain,
notwithstanding the location or availability of any such employment
or self-employment.

The WCJ found that Freeman met this burden of proof and awarded TTD benefits

from March 2, 2011 through September 19, 2011. We review the finding of the

WCJ under the manifest error standard of review. Arnold v. Cavanaugh Aviation,

95-433 (La.App. 3 Cir. 10/4/95), 663 So.2d 329. In order to prove a matter by

clear and convincing evidence, a claimant must demonstrate that the existence of a

disputed fact is much more probable than its nonexistence. Bundren v. Affiliated

Nursing Homes, Inc., 94-808 (La.App. 3 Cir. 2/1/95), 649 So.2d 1177. After

reviewing the record in its entirety, we find the WCJ committed manifest error in

finding Freeman proved that the contusion to his hip caused him to be temporarily

totally disabled after March 2, 2011. While the evidence shows that he was in pain

because of his injury, his physician released him to light-duty work in late

February 2011. West Fraser attempted to provide Freeman with a light-duty

position on March 7, 2011, and then modified the position when Freeman claimed

he could not walk the short distances required of him because of the pain. The

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record does show that Freeman could not work from March 24, 2011 through May

17, 2011, because of an unrelated heart condition. On May 3, 2011, even Dr.

Dodson, Freeman’s treating physician, believed that the contusion had resolved.

We note also that the record shows that Freeman applied for social security

disability benefits because of his other health problems. Taken as a whole, we find

Freeman did not meet his burden of proving by clear and convincing evidence that

he was entitled to TTD benefits because of the injury he sustained to his hip.

We further find that the evidence shows that Freeman was not entitled to

SEB either because of his injury. Freeman has shown no inclination to seek

employment, either with West Fraser or with another company, since he walked

off the job on March 8, 2011.

Our finding that Freeman is not entitled to workers’ compensation benefits

leads us to further conclude that West Fraser was not arbitrary and capricious in

terminating Freeman’s benefits. Thus, we reverse the award of penalties and

attorney fees.

Dr. Dodson and the employer’s choice of doctor and the IME physician

disagreed about whether Freeman was entitled to pain management treatment. We

find that the WCJ did not commit manifest error in finding the treatment necessary.

We affirm the judgment of the WCJ on this issue.

We also find that the WCJ did not err in finding that Freeman did not

commit fraud so as to forfeit benefits pursuant to La.R.S. 23:1208. He told several

different stories at different times about how the injury occurred and the severity of

it. He often seemed to exaggerate his symptoms to the medical professional

treating him. We agree with the WCJ, though, that there was no intent to defraud.

CONCLUSION

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The judgment of the WCJ awarding TTD benefits, SEB, and penalties and

attorney fees is reversed. The judgment of the WCJ ordering West Fraser to pay

for pain management treatments is affirmed, as is the judgment finding Freeman

did not commit fraud. Costs of this appeal are assessed in equal parts to West

Fraser and Freeman.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

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