Charles Evans v. Winn Lumber Company, LLC and Bridgefield Casualty Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 20-28

CHARLES EVANS

VERSUS

WINN LUMBER COMPANY, LLC
AND BRIDGEFIELD CASUALTY INSURANCE COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 2
PARISH OF WINN, NO. 18-08195
JAMES L. BRADDOCK, WORKERS COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

H. Douglas Hunter
Guglielmo, Lopez
306 East North Street
Opelousas, LA 70570
(337) 948-8201
COUNSEL FOR DEFENDANT/APPELLEE:
Bridgefield Casualty InsuranceCompany
Winn Lumber Company, LLC

Joseph Payne Williams
Williams Family Law Firm, LLC
162 Jefferson Street
Natchitoches, LA 71458
(318) 352-6695
COUNSEL FOR PLAINTIFF/APPELLANT:
Charles Evans

EZELL, Judge.

Charles Evans appeals the decision of the workers’ compensation judge

below denying his claims for supplemental earnings benefits (SEBs) and penalties

and attorney fees. For the following reasons, we hereby affirm the decision of the

workers’ compensation judge in part, reverse in part, and render judgment.

Mr. Evans worked as a forklift driver at Winn Lumber Company, moving

pallets of kiln-dried wood to a planer. On December 19, 2017, Mr. Evans was

struck in the left eye by a stacking stick that had become entangled in a conveyor

belt, severely and permanently injuring his eye. As a result of the injury, Mr.

Evans is functionally blind in his left eye. It is undisputed that Mr. Evans was in

the course and scope of his employment when the injury occurred.

After Mr. Evans filed a disputed claim for compensation on December 10,

2018, Winn Lumber’s insurer issued a check for $48,224 for 100 weeks of

disability benefits for loss of vision in his left eye pursuant to La.R.S.

23:1221(4)(i). An additional check was issued for $937 when the insurer

acknowledged the initial payment failed to include bonuses. Mr. Evans proceeded

with his claim, seeking SEBs, which the workers’ compensation judge denied. The

workers’ compensation judge further denied his claims for penalties and attorney

fees for the underpayment of benefits. From that decision, Mr. Evans appeals.

On appeal, Mr. Evans asserts three assignments of error. He claims that the

workers’ compensation judge erred in denying his claims for SEBs, in denying his

claims for penalties and attorney fees, and in not awarding interest on any

disability awards.

Mr. Evans first claims the workers’ compensation judge erred in failing to

award him SEBs at a zero earning capacity. We disagree.

The purpose of SEBs is to compensate an injured employee for the wage-

earning capacity lost as a result of a work-related accident.” Lacaze v. Alliance

Compressors, 03-1566, p. 4 (La.App. 3 Cir. 4/14/04), 870 So.2d 1150, 1154 (citing

City of Jennings v. Dequeant, 96-943 (La.App. 3 Cir. 11/5/97), 704 So.2d 264, writ

denied, 98-610 (La. 4/24/98), 717 So.2d 1174). Initially, “[t]he injured employee

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

resulted in his or her inability to earn [90% or more of the average pre-injury wage]

under the facts and circumstances of the individual case.” Freeman v.

Poulan/Weed Eater, 93-1530, p. 7 (La. 1/14/94), 630 So.2d 733, 739. On review,

an appellate court must not re-weigh evidence or to substitute its own factual

findings just because it may have decided a case differently. Bonin v. Ferrellgas,

Inc., 03-3024 (La. 7/2/04), 877 So.2d 89. Based on the record before this court, we

cannot find error in the workers’ compensation judge’s determination that Mr.

Evans failed to meet his burden of proof.

The workers’ compensation judge did not dispute the finding of the doctors

that Mr. Evans was functionally blind in his left eye, but there was little to no

evidence as to how this affected or related to his ability to earn a living. While Mr.

Evans’ treating ophthalmologist, Dr. Patrick Redmond, was obviously concerned

that Mr. Evans could have problems operating a forklift with his monocular vision,

it is clear from the record that Mr. Evans performed his job for two months with no

problems whatsoever, prior to being terminated for sleeping on the job. Dr.

Redmond stated that he was unaware that OSHA regulations do not prohibit Mr.

Evans from operating a forklift and would allow employers to determine if limited

vision would be dangerous for any particular job. He did not prohibit his

monocular patients from driving vehicles in general, as he deferred that to the

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Department of Motor Vehicles. Moreover, Dr. Redmond did not know that Mr.

Evans had successfully returned to his job, without incident, when he stated that he

felt Mr. Evans could not safely operate heavy machinery.

In fact, the record shows that Mr. Evans was very much capable of working

as a forklift operator at Winn Lumber after his accident, as he performed those

exact duties until he was fired for cause. Mr. Evans had previously been warned

that sleeping at work was a fireable offense but was given a second chance. While

Mr. Evans himself testified that he had some concerns for the safety of others, he

stated that he did the same work as before the injury without complaint, and with

no incidents or accidents. In fact, his immediate supervisor, Billy Stewart, stated

that he did a great job until his termination. His employer, Robert Schutte, testified

that had he not been terminated for sleeping on the job, he would still be employed

at Winn Lumber in his same position. “[A]n injured employee cannot . . .

blatantly violate company policy without the possibility of recourse by the

employer.” Palmer v. Alliance Compressors, 05-478, p. 4 (La.App. 3 Cir. 11/2/05),

917 So.2d 510, 513, writ denied, 05-2440 (La. 3/24/06), 925 So.2d 1231. The fact

that a job is no longer available to an employee solely due to his own actions

terminates his entitlement to SEBs. Id.

There is no other direct evidence in the record concerning Mr. Evans’ ability

to earn 90% of his pre-injury wages. While his prospects being reduced may be a

likely assumption based on Mr. Evans’ education difficulties and the injury, it

remains his duty as a claimant to prove reduced earning capacity in order to be

awarded SEBs. After reviewing the record, we cannot find the workers’

compensation judge was manifestly erroneous in ruling that he did not meet that

burden.

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Mr. Evans next claims the workers’ compensation judge erred in failing to

award him penalties and attorney fees for the undisputed underpayment of

disability benefits. We agree.

Louisiana Revised Statutes 23:1201(F) imposes a penalty for “failure to

provide payment.” Penalties will not be imposed if they are “reasonably

controverted or if such nonpayment results from conditions over which the

employer or insurer had no control.” Id. The determination of whether an

employer or insurer should be cast with penalties and attorney fees is a question of

fact, subject to the manifest error or clearly wrong standard of review. Authement v.

Shappert Eng’g, 02-1631 (La. 2/25/03), 840 So.2d 1181.

A review of the record reveals that Winn Lumber and its insurer failed to

pay Mr. Evans the correct amount of disability benefits because it twice failed to

take bonuses into account when it calculated his average weekly wage. Generally,

penalties are not imposed for simple miscalculations of benefits, but penalties and

attorney fees have been imposed where the insurer gathers incomplete data in

preparing the claim. Stegall v. J. & J Exterminating, 94-1279 (La.App. 3 Cir.

3/1/95), 651 So.2d 400. Here, in calculating Mr. Evans’ average weekly wage,

Winn Lumber’s workers’ compensation insurance adjuster, Glen East, admittedly

failed to take bonuses into account. While the insurer did issue two separate

checks to make the amount correct in the end, the adjustor clearly gathered

incomplete data in preparing the claim. Winn Lumber failed to offer evidence that

the discrepancy was beyond its control or that Mr. Evans’ right to those benefits

was reasonably controverted. The workers’ compensation judge was therefore

manifestly erroneous in failing to award Mr. Evans penalties in the amount $2,000

for Winn Lumber’s failure to pay the correct amount of disability benefits.

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However, because Winn Lumber did quickly pay when made aware of the

deficiencies with little work from counsel for Mr. Evans, we find that the attorney

fees in the amount of $1,000 for the violations is sufficient. We hereby reverse the

decision of the workers’ compensation judge as to penalties and attorney fees and

award Mr. Evans $2,000 in penalties and $1,000 in attorney fees for Winn

Lumber’s underpayment of benefits.

Finally, Mr. Evans claims that the workers’ compensation judge’s denial of

his claims for benefits resulted in the workers’ compensation judge not reaching

the issue of interest on those benefit awards sought. Because we agree with the

workers’ compensation judge that Mr. Evans has not shown he is entitled to the

SEBs sought, this issue is moot and need not be addressed.1

For the above reasons, we hereby affirm the decision of the workers’

compensation judge denying Mr. Evans’ claim for SEBs. We reverse the workers’

compensation judge’s decision denying penalties and attorney fees and render

judgment awarding Mr. Evans $2,000 in penalties and $1,000 in attorney fees for

Winn Lumber’s underpayment of benefits. Costs of this appeal are hereby

assessed against Winn Lumber.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

1
Additionally, La.R.S. 23:1201.3 provides, in relevant part (emphasis ours): “Any
compensation awarded and all payments thereof directed to be made by order of the workers’
compensation judge shall bear judicial interest from the date compensation was due until the date
of satisfaction.” The 100 weeks of benefits paid by Winn Lumber was paid voluntarily and not
ordered by the workers’ compensation judge, who, again, awarded Mr. Evans no benefits at all.

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