William Brunner v. Naes Corporation and Zurich American Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

24-294

WILLIAM BRUNNER

VERSUS

NAES CORPORATION AND
ZURICH AMERICAN INSURANCE COMPANY

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ON APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 23-02734
THOMAS E. TOWNSLEY, WORKERS’ COMPENSATION JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Candyce G. Perret, Jonathan W. Perry, and Sharon Darville
Wilson, Judges.

AFFIRMED AS AMENDED.

Kirk L. Landry
Virginia J. McLin
Keogh, Cox & Wilson, Ltd.
701 Main Street
Post Office Box 1151
Baton Rouge, Louisiana 70821
(225) 383-3796
COUNSEL FOR DEFENDANTS/APPELLANTS:
NAES Corporation and
Zurich American Insurance Company

Jason R. Bell
SWLA Injury Attorneys, LLC
949 Ryan Street, Suite 130
Lake Charles, Louisiana 70601
(337) 419-3710
COUNSEL FOR CLAIMANT/APPELLEE:
William Brunner

PERRY, Judge.

This is a workers’ compensation claim where the claimant alleges a work-

related leg injury was the cause of a subsequent off-the-job injury. The employer

appeals the judgment of the workers’ compensation judge finding the employer

liable for the claimant’s subsequent injury and the claimant entitled to medical

expenses, temporary total disability benefits, penalties, and attorney fees. For the

reasons that follow, we affirm as amended.

FACTS AND PROCEDURAL HISTORY

William Brunner (“Mr. Brunner”), a welder employed by NAES Corporation

(“NAES”), was involved in a work-related accident on August 26, 2022, when a

beam fell from an overhead crane, striking his right leg and forearm. Mr. Brunner

received indemnity benefits and medical expenses relating to his injuries, which

included surgery on February 8, 2023, for a right hamstring muscle repair, fascia

repair, and application of alpha graphic amniotic tissue performed by Dr. Brett

Cascio (“Dr. Cascio”). Mr. Brunner was ultimately released to return to work by

Dr. Cascio on April 19, 2023.

On June 5, 2023, Mr. Brunner filed a disputed claim for compensation against

NAES and its insurer, Zurich American Insurance Company (hereinafter collectively

referred to as “Defendants”), alleging that he was injured in a work accident on

August 26, 2022, and that “Dr. Cascio restricted [him] from work on 5/18/23[1] but

[Defendants] refused to reinstate indemnity benefits.” In answer, Defendants

acknowledged Mr. Brunner’s August 2022 work accident, injuries, and workers’

compensation coverage; however, Defendants affirmatively asserted Mr. Brunner

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The evidence reveals Dr. Cascio restricted Mr. Brunner from work on May 10, 2023.

“was released to full unrestricted work duty on April 19, 2023 by . . . Dr. Cascio”

and specifically denied liability for “a subsequent intervening injury on or about May

5, 2023[, Mr. Brunner allegedly sustained] ‘while helping a friend move a washer’.”

After trial in this matter in February 2024, the workers’ compensation judge

(“WCJ”) found Mr. Brunner injured his right leg in a work accident on August 26,

2022, and suffered a compensable aggravation to that injury, even though it occurred

away from work when Mr. Brunner helped move a washing machine on May 5,

2023. Additionally, the WCJ: (1) found Mr. Brunner is entitled to temporary total

disability (“TTD”) benefits from May 10, 2023, to the date of trial “and continuing

until he sees Dr. Cascio again when he can address [Mr. Brunner’s] current medical

condition and work status[;]” (2) found Mr. Brunner is entitled to receive medical

treatment from Dr. Cascio for his right leg injury and all bills connected thereto; and

(3) determined Defendants’ refusal to reinstate Mr. Brunner’s indemnity benefits

and denial of his medical benefits was arbitrary and capricious, therefore, Mr.

Brunner was awarded $4,000.00 in penalties and $10,000.00 in attorney fees along

with court costs.2 Judgment to this effect was signed March 11, 2024.

Defendants filed an appeal contesting the WCJ’s judgment. Mr. Brunner filed

an answer to the appeal seeking an additional award of attorney fees for work done

on appeal.

ASSIGNMENTS OF ERROR

On appeal, Defendants assert three assignments of error:

1. The WCJ committed legal error when he failed to apply the
precedent of Buxton v. Iowa Police Department[, 09-520 (La.
10/20/09), 23 So.3d 275,] and failed to find that the superseding

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The WCJ also declared “interest will be on the back due indemnity benefits only as
interest wasn’t plead with regard to anything else.”

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and intervening accident that occurred on May 5, 2023[,] was the
cause of the current condition of the Claimant.

2. The WCJ committed legal error in awarding indemnity benefits
under the Louisiana Workers’ Compensation Law where
Claimant did not meet the statutory definition and evidence was
presented that Claimant can work in some capacity.

3. The WCJ committed manifest error in awarding penalties and
attorney fees because the claim was reasonably controverted.

APPELLANTS’ ARGUMENTS

Defendants argue Mr. Brunner sustained a new injury while moving a

washing machine on May 5, 2023. They contend the washing machine incident was

an intervening accident wholly unrelated to Mr. Brunner’s work-related injury. As

such, Defendants contend the WCJ erred in finding they are liable for any injury Mr.

Brunner sustained in the washing machine incident, any disability arising therefrom,

or any workers’ compensation benefits thereafter.

Defendants contend Mr. Brunner did not prove by clear and convincing

evidence that he is unable to engage in any employment and, thus, entitled to TTD

benefits. Defendants allege the evidence presented at trial, which includes the

testimony of Dr. Cascio, established that Mr. Brunner is able to return to work in

some capacity. Thus, they argue the WCJ legally erred by awarding TTD benefits.

Finally, Defendants contend the WCJ was manifestly erroneous in finding that

Mr. Brunner is entitled to statutory penalties under La.R.S. 23:1201(F), as well as

an award of attorney fees. Defendants argue they have reasonably controverted Mr.

Brunner’s workers’ compensation claim; thus, the WCJ erred in awarding penalties

of $4,000.00 and attorney fees in the amount of $10,000.00.

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APPELLEE’S POSITION

Mr. Brunner argues he reinjured/aggravated his work-related hamstring injury

while helping his friend move a washing machine on May 5, 2023. He contends his

subsequent off-the-job injury was related to, or caused by, his work-related injury.

Thus, Mr. Brunner asserts the WCJ correctly held Defendants are responsible and

the Defendants wrongly denied his claim for workers’ compensation benefits.

Mr. Brunner contends the WCJ did not err in awarding TTD benefits.

According to Mr. Brunner, Dr. Cascio restricted him from work on May 10, 2023,

and the evidence at trial, specifically the testimony of Dr. Cascio, proves he has

never been released from this restriction.

Mr. Brunner argues Defendants articulated no objective reason for refusing to

approve medical treatment and pay indemnity benefits after Dr. Cascio restricted

him from work on May 10, 2023. He further alleges that Defendants did not seek

an opinion from Dr. Cascio on the aggravation and did nothing to investigate the

aggravation; thus, Mr. Brunner asserts the WCJ properly awarded him penalties and

attorney fees for Defendants’ denial of his claim.

In his answer to appeal, Mr. Brunner seeks an additional award of attorney

fees for work done on appeal.

STANDARD OF REVIEW

Appellate courts review the factual determinations in workers’ compensation

cases using the manifest error or clearly wrong standard of appellate review. Smith

v. Packaging Corp. of Am., 22-171 (La.App. 3 Cir. 11/30/22), 354 So.3d 132, writ

denied, 23-001 (La. 2/24/23), 356 So.3d 343. The manifest error or clearly wrong

standard of review was explained by the supreme court in Stobart v. State, through

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Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993) (internal citations and

quotation marks omitted), as:

[T]he issue to be resolved by a reviewing court is not whether the trier
of fact was right or wrong, but whether the factfinder’s conclusion was
a reasonable one. Even though an appellate court may feel its own
evaluations and inferences are more reasonable than the factfinder’s,
reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review where conflict exists in the
testimony. However, where documents or objective evidence so
contradict the witness’s story, or the story itself is so internally
inconsistent or implausible on its face, that a reasonable factfinder
would not credit the witness’s story, the court of appeal may find
manifest error or clear wrongness even in a finding purportedly based
upon a credibility determination. Nonetheless, this Court has
emphasized that the reviewing court must always keep in mind that if
the trial court or jury’s findings are reasonable in light of the record
reviewed in its entirety, the court of appeal may not reverse, even if
convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently.

LAW AND DISCUSSION

Defendants first assignment of error challenges the WCJ’s ruling, which holds

them responsible for Mr. Brunner’s May 2023 injury. To support their position,

Defendants rely to a great extent on the Louisiana Supreme Court’s holding in

Buxton, 23 So.3d at 286, which emphasized the “requirement that the subsequent

injury flow from the work-related injury and not be caused by an intervening

accident wholly unrelated to the work-related injury.”

According to Defendants, Mr. Brunner was doing well and had been released

to full duty work by his treating physician until he injured himself while helping a

friend move a washing machine. Defendants point to the deposition of Dr. Cascio,

whom they allege testified Mr. Brunner could have suffered the same torn hamstring

simply by moving the washing machine. Thus, Defendants contend the incident

with the washing machine was an intervening and superseding cause of Mr.

Brunner’s current medical condition.

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Defendants argue that the facts of this case are exactly what the supreme court

reviewed under Buxton, 23 So.3d 275. We disagree, finding Buxton is

distinguishable from the case before us. Though both Buxton and Mr. Brunner

suffered subsequent off-the-job injuries, the similarity ends there.

In Buxton, 23 So.3d 275, the claimant alleged he aggravated a work-related

back injury when he was involved in a second accident where the vehicle he was

driving collided with a cow. The supreme court explained that when determining

whether an employee is entitled to workers’ compensation benefits for an injury

suffered after a work-related injury, “[t]he key question is the relationship between

the second injury and the initial, work-related injury.” Id. at 284. The supreme court

reversed the lower courts’ determinations that the claimant’s work-related back

injury was a cause of the off-the-job injuries suffered by the claimant when his

vehicle hit a cow, stating:

[T]here was no proof that Buxton was predisposed to injury by the
[work-related] accident. . . . There was no evidence that the work-
related injury predisposed Buxton to future injury such as disc problems
in the lumbar region that appeared after the severe collision with the
cow, but not before.

Id. at 286.

In the instant case, Dr. Cascio testified that Mr. Brunner was predisposed to

injury by his work-related accident. On April 19, 2023, Dr. Cascio found Mr.

Brunner to be relatively improved—he had no pain, swelling, numbness, or popping.

Following the washing machine incident, Mr. Brunner reported a pulling sensation

where he had the surgery, as well as increased pain. Dr. Cascio restricted Mr.

Brunner from working and ordered an MRI, which confirmed that Mr. Brunner’s

hamstring repair was intact. Though a nonwork-related accident, Dr. Cascio testified

that he considered the hamstring strain and resulting pain Mr. Brunner suffered while

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helping a friend move a washing machine to be a natural or expected consequence

of his original work-related injury. Thus, the record contains proof that Mr.

Brunner’s work-related injury predisposed him to future injury to his hamstring.

Based on our review of the facts in this case, we cannot conclude that the WCJ erred

in determining Mr. Brunner’s work-related leg injury was the cause of his

subsequent off-the-job leg injury.

Defendants second assignment of error addresses the WCJ’s ruling granting

TTD benefits. Defendants allege that Dr. Cascio opined Mr. Brunner had reached

maximum medical improvement and could be released to work. Thus, Defendants

argue the WCJ legally erred in awarding Mr. Brunner TTD benefits.

Under La.R.S. 23:1221(1), to be entitled to TTD benefits, a claimant must

prove by clear and convincing evidence that he is unable to work. This burden

requires “introducing objective medical evidence supporting the existence of a

disabling condition.” Johnson v. T.K. Stanley, Inc., 00-1000, p. 9 (La.App. 3 Cir.

2/28/01), 781 So.2d 760, 766 (footnote omitted).

The evidence reveals Mr. Brunner was released from his restriction from

working in April 2023 by Dr. Cascio; however, following the incident with the

washing machine in May 2023, Mr. Brunner was again placed on “no work” status

by Dr. Cascio. Dr. Cascio testified that this restriction remained until the last

appointment Mr. Brunner had with him in June 2023, since Mr. Brunner had no more

recent follow-up care. Mr. Brunner testified his treatment with Dr. Cascio ended

due to Defendants’ refusal to approve, and his lack of ability to afford, any further

medical treatment. When asked whether Mr. Brunner was able to return to work,

Dr. Cascio testified it was possible Mr. Brunner was able to return to work, but he

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could not answer that question until he examined Mr. Brunner and/or arranged a

functional capacity evaluation.

Based on Dr. Cascio’s medical opinion, the WCJ found Mr. Brunner satisfied

his burden of proof. We find no manifest error in the WCJ’s decision.

Defendants’ final assignment of error challenges the WCJ’s awards of

penalties and attorney fees under La.R.S. 23:1201(F). Defendants argue they

presented a valid legal defense and, therefore, penalties and attorney fees should not

have been awarded.

The penalties for failure to make timely payments of compensation and/or

medical expenses are set forth in La.R.S. 23:1201(F), which provides, in pertinent

part (emphasis added):

[F]ailure to provide payment in accordance with this Section . . . shall
result in the assessment of a penalty in an amount up to the greater of
twelve percent of any unpaid compensation or medical benefits, or fifty
dollars per calendar day in which any and all compensation or medical
benefits remain unpaid . . . together with reasonable attorney fees for
each disputed claim; however, the fifty dollars per calendar day penalty
shall not exceed a maximum of two thousand dollars in the aggregate
for any claim. The maximum amount of penalties which may be
imposed at a hearing on the merits regardless of the number of penalties
which might be imposed under this Section is eight thousand
dollars. . . . Penalties shall be assessed in the following manner:

....

(2) This Subsection shall not apply if the claim is
reasonably controverted or if such nonpayment results
from conditions over which the employer or insurer had
no control.

The Louisiana Supreme Court has long held, “The purpose of imposition of

penalties and attorney fees is to discourage indifference and undesirable conduct by

employers and insurers.” Authement v. Shappert Eng’g, 02-1631, p. 11 (La.

2/25/03), 840 So.2d 1181, 1188. When determining whether penalties and attorney

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fees should be imposed on an employer, the crucial inquiry is “whether the employer

had an articulable and objective reason to deny benefits at the time it took action.”

Id. “To reasonably controvert a claim, an employer must have sufficient factual and

medical information to reasonably counter the factual and medical information

provided by the employee.” McCarty v. State, Off. of Risk Mgmt., 94-33, p. 5

(La.App. 3 Cir. 10/5/94), 643 So.2d 886, 889.

“The decision to assess penalties and attorney fees is a question of fact that is

in the great discretion of the WCJ, and it should not be reversed on appeal absent

manifest error.” Jeansonne v. Dep’t of Pub. Safety & Corr. Youth Servs., Off. of Juv.

Just., 17-635, p. 9 (La.App. 3 Cir. 6/6/18), 247 So.3d 893, 900–01, writ denied, 18-

1148 (La. 10/29/18), 254 So.3d 1209. The factors used in determining attorney fees

in workers’ compensation cases are “the degree of skill and ability exercised, the

amount of the claim, the amount recovered for the plaintiff, and the amount of time

devoted to the case.” Naquin v. Uniroyal, Inc., 405 So.2d 525, 528 (La.1981).

In his ruling regarding these awards, the WCJ declared, in relevant part:

Given the employer and insurer have a continuing duty to
investigate the claim, this court opines that [Defendants] should have
inquired with Dr. Cascio as to whether the 5-5-23 incident aggravated
Mr. Brunner’s original injury and caused a change in his work status
that was related thereto, or that it was an intervening and subsequent
accident that injured his leg and was not related to the work accident.

As such, and given Dr. Cascio’s trial testimony, [Defendants
have] not reasonably controverted the claim; therefore, the refusal to
reinstate indemnity and approve medical treatment following the April
19, 2023, return to work [order] was arbitrary and capricious and gives
rise to penalties and attorney[] fees.

The record indicates that Defendants denied Mr. Brunner’s entitlement to

workers’ compensation benefits based on their analysis of Buxton, 23 So.3d 275, and

their conviction that its holding applied to the facts in this case, which formed the

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basis of their argument that the incident with the washing machine was an

intervening and superseding cause of Mr. Brunner’s current medical condition. The

WCJ rejected those arguments, and we have affirmed his rulings. “Reliance on an

erroneous interpretation of a law subjects the employer to penalties and attorney

fees.” Smith, 354 So.3d at 144. Thus, we find the WCJ did not manifestly err in

awarding penalties and attorney fees based on the arbitrary and capricious denial of

Mr. Brunners’ workers’ compensation claim.

Mr. Brunner’s Answer to Appeal

Mr. Brunner has requested additional attorney fees for the work incurred as a

result of this appeal. As stated by this court in Smith, 354 So.3d at 144:

“The award of additional attorney fees is warranted when the
claimant successfully defends its judgment.” Thomas Med. Grp.,
APMC v. Stine, LLC, 10-580, p. 5 (La.App. 3 Cir. 12/8/10), 52 So.3d
993, 997. “Generally, when an award for attorney’s fees is granted [by
the WCJ], additional attorney’s fees are proper for work done on appeal
[so as] to keep the appellate judgment consistent with the underlying
judgment.” Wilczewski v. Brookshire Grocery Store, 08-718, p. 18
(La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ denied, 09-456 (La.
4/13/09), 5 So.3d 170.

Thus, based upon counsel’s successful defense of the WCJ’s judgment, we award an

additional attorney fee of $5,000.00.

DECREE

For the foregoing reasons, the judgment appealed from is affirmed, as

amended, to award additional attorney fees in the amount of $5,000.00 for work

done on appeal in favor of the claimant, William Brunner, and against

Defendants/Appellants, NAES Corporation and Zurich American Insurance

Company. All costs of this proceeding are assessed against Defendants/Appellants,

NAES Corporation and Zurich American Insurance Company.

AFFIRMED AS AMENDED.

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