The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
03-1310
ROY STROTHER
VERSUS
GUINN OILFIELD SERVICES, L.L.C.
**********
APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NUMBER 02-02617
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
**********
BILLIE COLOMBARO WOODARD
JUDGE
**********
Court composed of Billie Colombaro Woodard, Oswald A. Decuir, and Billy Howard
Ezell, Judges.
AFFIRMED AS AMENDED.
Chris Smith, III
The Smith Law Firm, L.L.P.
Post Office Box 1528
Leesville, Louisiana 71496
(337) 238-1531
Counsel for Plaintiff/Appellee:
Roy Strother
Henry Harvey LeBas
Robert M. Martina
Law Offices of Henry H. LeBas
5750 Johnston Street, Suite 5100
Lafayette, LA 70503
(337) 988-4500
Counsel for Defendant/Appellant:
Guinn Oilfield Services
WOODARD, Judge.
This workers’ compensation appeal arises from an action for disability benefits.
The WCJ found that Roy C. Strother sustained a disabling back injury while in the
course and scope of his employment with Guinn Oil Field Services, L.L.C. (Guinn
Oil). We affirm as amended.
*****
Roy C. Strother worked as a roustabout, which is a physical job that is very
strenuous and requires heavy lifting, for Guinn Oil from September of 2001 to
November 21, 2001.
During one of the last few days of his employment, Mr. Strother injured his
back on the job site, which is referred to as the Glade Branch or the Hunt Plywood
site, while carrying heavy valves, boxes of bolts, and pipe wrenches up three flights
of stairs to the top of a twenty-four-foot tank. According to Mr. Strother, a crane
would have normally carried these materials to the top of the tank but, on this day, the
crane was at another job site.
While making one of his many climbs up to the top of the tank, Mr. Strother
remembered feeling “something burning and pinching in [his] . . . back and . . . left
leg.” When asked at trial if he reported his injury to any of his superiors, he stated
that he reported it to Douglas Cloud, Jr., his “foreman” and brother-in-law. Mr. Cloud
told him to “take it easy” the rest of the day and suggested to him that he might be
hurting because he was not yet accustomed to all the heavy lifting required by this
type of work considering that he started working for Guinn Oil only a couple months
before.
After work, Mr. Strother went home to his wife, Donna Marie Strother, and
their three-year-old son. When he arrived, he said:
I could barely get out of my truck [because] I was hurting so bad.
I like to never made it home. When I got there . . . I sat down on the
steps and she helped me pull my . . . boots off . . . and I . . . stripped
down to my drawers on the steps. And she helped me get . . . into the tub
to take a shower.
1
Mrs. Strother was asked about her husband’s condition on that night. She responded:
“Whenever he came in he looked depressed, and my [husband has] always been high
strung and always hyper, and he was just depressed and I asked him what was wrong
and he said he was . . . hurt.”
That same night, Mr. and Mrs. Strother picked up his brother-in-law, Mr.
Cloud, on their way to a pharmacy. When they asked for the pharmacist’s opinion on
how to relieve a pulled muscle, she recommended that Mr. Strother use “muscle rub
and Aleve” and told him to report his injury to his boss if it did not get any better
within seven days.
Sometime thereafter, Mr. Cloud allegedly called Jerry Guinn, the owner of
Guinn Oil, to find out if the company would be doing some work in Washington,
Louisiana. Mr. Cloud knew that if Guinn Oil did not get hired to do this job, he and
Mr. Strother might get laid off. During their conversation, Mr. Guinn told him that
he had not yet heard anything but he was expecting some news on the Washington job
in a few days.
When the Washington job did not come through, Mr. Guinn informed Mr.
Cloud that he had no choice but to lay off him and Mr. Strother. Later that day, Mr.
Cloud relayed this bad news to his brother-in-law.
On November 26, 2001, Mr. Guinn sent both of them an official layoff notice.
They needed this document to apply for food stamps and unemployment benefits.
However, Mr. Strother could not get unemployment benefits because his injuries
prevented him from going back to work.
The next day, on November 27, 2001, Mr. Strother called Mr. Guinn to inform
him that he injured his back on the job. This was the first time that Mr. Guinn learned
of his injuries.
Afterwards, Mr. Strother began receiving workers’ compensation benefits from
Montlake Casualty Company (Montlake) together with some medical expenses.
On April 11, 2002, Mr. Strother filed suit, alleging that Guinn Oil and Montlake
paid him an improper amount in weekly compensation benefits, but he later amended
his claim to dispute their refusal to pay him benefits since August 1, 2002 and to
dispute their failure to authorize medical treatment.
On April 29, 2003, the WCJ rendered a judgment in Mr. Strother’s favor,
awarding him: (1) $321.23 in weekly workers’ compensation benefits that were due
2
from November 21, 2001, together with legal interest, but this award was made
subject to a credit for any benefits previously paid; (2) all reasonable medical benefits,
including the surgery his doctor recommended; and (3) $2,000.00 in penalties and
$3,000.00 in attorney fees, together with legal interest from the date of judicial
demand for the Defendants’ initial underpayment of benefits.
Guinn Oil asserts on appeal that the WCJ erred: (1) by finding that Mr. Strother
suffered an injury on the job that qualified as an accident even though he could not
identify an actual and identifiable precipitous event; (2) by finding that he proved, by
a preponderance of the evidence, that he was injured, considering the evidence
presented at trial proving his lack of credibility; (3) by finding that his claim was
compensable under our Workers’ Compensation laws; (4) by finding that he was
entitled to benefits despite circumstantial and direct evidence that cast serious doubt
on his version of his alleged accident and injuries; (5) by not finding that he forfeited
his rights to benefits under La.R.S. 23:1208; and (6) by awarding him penalties and
attorney fees. Mr. Strother answered Guinn Oil’s appeal, contending that the WCJ
should increase the award of penalties and attorney fees.
*****
INJURY
Guinn Oil urges that Mr. Strother did not prove by a preponderance of the
evidence that he sustained a work-related accident because in his statements to
Montlake’s insurance adjuster and his doctors following his accident he failed to
identify a particular incident that caused the occurrence of his pain.
To obtain workers’ compensation benefits, an employee must prove by a
preponderance of the evidence that he suffered a personal injury because of an
accident, arising out of and in the course of his employment.1 We are to construe the
Workers’ Compensation Act liberally, but this does not relax the worker’s burden of
1
La.R.S. 23:1031.
3
proof.2 This determination is a factual one; thus, we will not disturb the WCJ’s
finding unless we deem it to be clearly wrong or manifestly erroneous.3
The Act defines an accident as “an unexpected or unforeseen actual,
identifiable, precipitous event happening suddenly or violently, with or without human
fault, and directly producing at the time objective findings of an injury which is more
than simply a gradual deterioration or progressive degeneration.”4
Specifically, the WCJ in this case found: “Mr. Strother has proven by a
preponderance of the evidence that he suffered an incident on his job during the
course of his employment which qualifies as an accident under the Workers’
Compensation Law.” We agree.
When there is a dispute over the specific date and time of a claimant’s accident,
without the introduction of any evidence to illustrate the contrary, this lack of
specificity will not render his account of the accident insufficient for the purposes of
La.R.S. 23:1021(1).5 Furthermore, the claimant is entitled to the benefit of a
presumption if an otherwise healthy worker suffers an accident at work and,
thereafter, he becomes disabled; we are to presume that there is a causal connection
between the two when medical evidence establishes a reasonable possibility of such
a connection.6 When an employee establishes this presumption of a casual
relationship, the employer has the burden of producing evidence to persuade the trier
of fact that it is more probable than not that a work-related accident did not cause the
plaintiff’s injury.7
Mr. Strother has consistently related his back injury to his carrying of heavy
wrenches and valves up and down ladders at work. Admittedly, there is some
confusion over the exact time and date of his accident; nonetheless, the evidence
2
See Carter v. Wal-Mart Stores, Inc., 02-122 (La.App. 3 Cir. 6/26/02), 820
So.2d 1265, writ denied, 02-2074 (La. 11/1/02), 828 So.2d 573.
3
See Tate v. Cabot Corp., 01-1652 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, writ
denied, 02-2150 (La. 11/22/02), 829 So.2d 1044.
4
La.R.S. 23:1021(1).
5
Tate, 824 So.2d 456.
6
Allor v. Belden Corp., 393 So.2d 1233 (La.1981).
7
Rideaux v. Franklin Nursing Home, 95-240 (La.App. 3 Cir. 11/22/95), 664
So.2d 750, writ denied, 95-3093 (La. 2/16/96), 667 So.2d 1058.
4
clearly suggests that he sustained a work-related accident sometime during the last
few days of his employment. Dr. Ghanta, who was his family doctor, confirmed that
he never complained of back problems before this time. Yet, two weeks after Mr.
Strother’s last day on the job, Dr. Pope performed an MRI on him, revealing “a large
extruded disc predominantly on the left side at L-5 and S-1 level” that “did produce
some mass effect and some compression of the nerve root at that level.” Moreover,
every doctor who testified believed a work-related accident caused these injuries to
his spine.
In light of this evidence, Mr. Strother clearly benefitted from a presumption that
a work-related accident caused his injuries. Therefore, given Guinn Oil’s failure to
produce any evidence suggesting that anything else caused his injuries, the WCJ
correctly determined that Mr. Strother sustained this injury to his spine while in the
course and scope of his employment with Guinn Oil.
FALSE STATEMENTS OR MISREPRESENTATIONS
In spite of his entitlement to benefits, Guinn Oil believes Mr. Strother forfeited
his right to them by making false statements.
Louisiana Revised Statutes 23:1208 provides, in part:
A. It shall be unlawful for any person, for the purpose of obtaining
or defeating any benefit or payment under the provisions of this Chapter,
either for himself or for any other person, to willfully make a false
statement or representation.
....
E. Any employee violating this Section shall, upon determination
by hearing officer, forfeit any right to compensation benefits under this
Chapter.
This statute applies to any false statement or misrepresentation made by an employee,
specifically, for the purpose of obtaining workers’ compensation benefits.8
At trial, Mr. Strother testified that he told Montlake’s claim adjuster that he had
to climb up six flights of stairs, when he really only had to climb up three flights. In
his reasons for judgment, the WCJ noted that Mr. Strother admitted that this was an
8
Nabors Drilling USA v. Davis, 03-136 (La. 10/21/03), 857 So.2d 407.
5
exaggeration. In addition, there are other examples of his tendency to exaggerate, but
they are all irrelevant.9 “Exaggeration is a natural human failing.”10 Furthermore, Mr.
Strother’s initial inability to pinpoint the exact date and time of his work accident was
not due to any sinister motive and, thus, was insignificant when viewed in light of the
totality of the record.11
Therefore, we agree with the trial court that Mr. Strother never willfully made
false statements that would disqualify him from receiving benefits.
PENALTIES AND ATTORNEY’S FEES
Both Guinn Oil and Mr. Strother dispute the WCJ’s assessment of penalties and
attorney fees.
The WCJ has great discretion when awarding attorney fees and penalties, and
we will not disturb these awards unless they are clearly wrong.12 Louisiana Revised
Statutes 23:1201.2 provides, in part:
Any employer or insurer who at any time discontinues payment of claims
due and arising under this Chapter, when such discontinuance is found
to be arbitrary, capricious, or without probable cause, shall be subject
to the payment of all reasonable attorney fees for the prosecution and
collection of such claims.
(Emphasis added.) An act is arbitrary and capricious when it is done willfully and
without consideration of the facts and circumstances presented, or it is one based on
an unfounded motivation.13
After his accident, Mr. Strother told Montlake’s insurance adjuster that he hurt
himself on November 21, 2001 at the Glade Branch site. However, some evidence
suggested that he might have actually worked at another job site on that day, although
9
See Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991).
10
Id. at 354.
11
See Attaway v. Farley’s Glass Co., 430 So.2d 705 (La.App. 2 Cir. 1983).
12
See George v. M & G Testing and Services, Inc., 95-31 (La.App. 3 Cir.
7/19/95), 663 So.2d 79, writ denied, 96-39 (La. 3/8/96), 669 So.2d 403.
13
Flagg v. Hixson Funeral Home, 02-878 (La.App. 3 Cir. 2/5/03), 838 So.2d
174.
6
the Defense never proved that this was true. Nevertheless, even if this could be
proved, any mix up concerning the exact date of its happening would not have
affected our determination that a work-related accident caused Mr. Strother’s injuries.
Yet, given this confusion, Guinn Oil’s discontinuance of benefits, on August 1, 2002,
was not arbitrary or capricious; thus, it does not owe Mr. Strother attorney fees under
La.R.S. 23:1201.2.
On the other hand, the WCJ correctly surmised that Guinn Oil owed Mr.
Strother penalties and attorney fees for its failure to pay benefits under La.R.S.
23:1201, which provides, in part:
F. Failure to provide payment in accordance with this Section
shall result in the assessment of a penalty in an amount equal to twelve
percent of any unpaid compensation or medical benefits or fifty dollars
per calendar day, whichever is greater, for each 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. Penalties shall be
assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either
the employer or the insurer, depending upon fault. . . .
(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.
(Emphasis added.) An employee is not entitled to penalties and attorney fees for the
employer’s failure to pay benefits timely when the employer or insurer reasonably
controverted the employee’s claim for benefits, or when the nonpayment resulted from
conditions over which it had no control.14 Thus, if the employer or insurer had a valid
reason for its denial of benefits, the WCJ should assess neither penalties nor attorney
fees under La.R.S. 23:1201.15
It is undisputed that, initially, Montlake paid Mr. Strother an incorrect amount
in benefits due to the insurance adjuster’s error in calculating Mr. Strother’s wages.
The WCJ can assess penalties and attorney fees for the underpayment of
14
Tate, 824 So.2d 456; La.R.S. 23:1201(F)(2).
15
Id.
7
compensation benefits when the employer or insurer does not offer proof that the error
in calculation was beyond their control.16 Since the Defendants offered no such proof,
the underpayment of Mr. Strother’s benefits was unjustified. As such, we affirm the
WCJ’s award of penalties and attorney fees.
In Mr. Strother’s answer to Guinn Oil’s appeal, he requests an additional award
of attorney fees for the work done on appeal. A workers’ compensation claimant is
entitled to an increase in attorney fees to reflect the additional time incurred in
defending an employer’s unsuccessful appeal.17 We award Mr. Strother $2,000.00 in
attorney fees for the time his counsel spent preparing this appeal.
CONCLUSION
We affirm the WCJ’s determination that Mr. Strother sustained his spinal
injuries in a work-related accident. We also affirm his award of penalties to
Plaintiff/Appellee. Furthermore, we amend the WCJ’s award of attorney fees to
Plaintiff/Appellee to include an additional $2,000.00 for the work done on this appeal.
We assess all costs of this appeal to the Defendants/Appellants.
AFFIRMED AS AMENDED.
16
Alexander v. B.F. Trappey & Sons, 93-549 (La.App. 3 Cir. 3/9/94), 635 So.2d
269.
17
George v. Guillory, 00-591(La.App. 3 Cir. 11/2/00), 776 So.2d 1200.
8