STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
16-538
ALVIN BARTLEY
VERSUS
SCHLUMBERGER TECHNOLOGY COMPANY AND TRAVELERS INSURANCE COMPANY
************ APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4 PARISH OF LAFAYETTE, NO. 15-03769 ADAM JOHNSON, WORKERS’ COMPENSATION JUDGE
************
JAMES T. GENOVESE JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese, Judges.
AFFIRMED AND RENDERED.
Christopher R. Philipp Law Office of Christopher R. Philipp 117 Caillouet Place Post Office Box 2369 Lafayette, Louisiana 70502 (337) 235-9478 COUNSEL FOR PLAINTIFF/APPELLEE: Alvin Bartley Tobin J. Eason Weiss & Eason, L.L.P. Post Office Box 8597 Mandeville, Louisiana 70470 (985) 626-5358 COUNSEL FOR DEFENDANTS/APPELLANTS: Schlumberger Technology Corporation and Travelers Property Casualty Company of America GENOVESE, Judge.
In this workers’ compensation case, Defendants, M-I LLC d/b/a M-I
SWACO, a Division of Schlumberger Technology Corporation, and its workers’
compensation insurer, Travelers Property Casualty Company of America
(Travelers) (collectively Schlumberger),1 appeal the judgment of the Office of
Workers’ Compensation in favor of Claimant, Alvin Bartley. Mr. Bartley has
answered the appeal. For the following reasons, we affirm and render.
FACTS AND PROCEDURAL HISTORY
Mr. Bartley was employed as a tool technician at Schlumberger when he
allegedly sustained injury during the course and scope of his employment on
March 23, 2015. The alleged accident causing injury was unwitnessed, and Mr.
Bartley never returned to work for Schlumberger after that date.
On the evening of March 23, 2015, Mr. Bartley presented to Lafayette
General Hospital (Lafayette General) emergency room with complaints of pain.
He also sent a text message to his supervisor, Kevin Bonin, advising that he was at
the hospital due to a pulled muscle in his shoulder.
On March 25, 2015, at Mr. Bonin’s request, Mr. Bartley went to
Schlumberger’s office and filled out the necessary paperwork to document a work-
related accident. Mr. Bartley provided a statement to Gerald Landry while at
Schlumberger.2
1 The caption of these proceedings is reflective of the names of the parties as they are named on the Disputed Claim for Compensation instituting this litigation. Defendants answered and formally appeared as M-I LLC d/b/a M-I SWACO, a Division of Schlumberger Technology Corporation and Travelers Property Casualty Company of America. 2 The record reflects that Mr. Landry is an investigator with American Claims Service, Inc. Schlumberger sent Mr. Bartley to be seen by Dr. Gordon Gidman, an
orthopedist, on March 25, 2015. After viewing an x-ray and MRI report, on March
26, 2015, Dr. Gidman immediately referred Mr. Bartley to a neurosurgeon, Dr.
Thomas Bertuccini, for evaluation. Mr. Bartley was seen by Dr. Bertuccini on
March 26, 2015, and Dr. Bertuccini recommended surgery. Schlumberger paid for
these medical examinations and the tests performed in connection with the medical
treatment.
On March 27, 2015, Mr. Bartley gave a second statement explaining how the
accident happened. This statement was given to Christopher Smith, an adjuster
with Travelers.
On April 6, 2015, Schlumberger denied Mr. Bartley’s claim based upon the
medical records it had received from Lafayette General. These records
documented a history of Mr. Bartley denying the occurrence of trauma and that his
pain had been intermittent for over a month. Based upon the contents of the
Lafayette General records, Schlumberger did not approve Dr. Bertuccinni’s
surgical request and denied Mr. Bartley workers’ compensation benefits. Mr.
Bartley then filed a Disputed Claim for Compensation with the Office of Workers’
Compensation.
Following a trial on the merits, the workers’ compensation judge (WCJ)
found that Mr. Bartley met his burden of proving that he sustained an accident
during the course and scope of his employment with Schlumberger and that he was
entitled to workers’ compensation benefits. Additionally, the WCJ ruled that
Schlumberger failed to reasonably controvert Mr. Bartley’s claim, thereby entitling
him to an award of penalties and attorney fees. A formal judgment was signed on
2 March 15, 2016. Schlumberger has appealed said judgment, and Mr. Bartley has
filed an answer to appeal.
ASSIGNMENTS OF ERROR
On appeal, Schlumberger argues that the WCJ erred in finding that Mr.
Bartley “carried his burden of proof proving the course and scope accident and the
causal relationship between [his] medical condition to the alleged course and scope
accident.” Additionally, Schlumberger contends that the WCJ was manifestly
erroneous in finding that Schlumberger “did not reasonably controvert the claim”
and in awarding penalties and attorney fees. Also before this court is Mr. Bartley’s
answer to appeal wherein he seeks an award of additional attorney fees for work
necessitated by Schlumberger’s appeal.
LAW AND DISCUSSION
As in all workers’ compensation cases, Mr. Bartley had the burden of
proving the occurrence of a work-related accident by a preponderance of the
evidence. Sorile v. Lott Oil Co., Inc., 14-1156 (La.App. 3 Cir. 3/4/15), 160 So.3d
178. With respect to an unwitnessed accident, the manner in which this burden can
be met is clearly established in the jurisprudence.
An employee can prove an unwitnessed accident with her testimony alone if “(1) no other evidence discredits or casts serious doubt upon [her] version of the accident; and (2)[her] testimony is corroborated by the circumstances following the alleged incident.” Marange[ v. Custom Metal Fabricators, Inc., 11-2678, p. 6 (La. 7/2/12), 93 So.3d 1253, 1257]. The employee’s testimony may be corroborated by the testimony of coworkers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 10-245 (La. 1/19/11), 56 So.3d 215 (citing Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992)). The WCJ’s determinations that an employee is credible and that she satisfied her burden of proof are factual determinations that should not be disturbed by a reviewing court unless the determinations are “clearly wrong . . . absent a showing of manifest error.” Bruno, 593 So.2d at 361.
3 Franklin v. Calcasieu Parish Sch. Bd., 12-1032, p. 2 (La.App. 3 Cir. 2/6/13), 108
So.3d 907, 909.
In the instant matter, the WCJ stated in his oral reasons that he made “a
specific finding that Mr. Bartley’s testimony was sincere and credible.” In such
instance, this court has opined:
An appellate court cannot reverse a WCJ’s factual findings that are based on a reasonable credibility evaluation if the record “furnishes [a] reasonable factual basis for the trial court’s finding.” Marange, 93 So.3d at 1258 (quoting Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)). When, as here, “there is a 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.” Id.
Id.
In this case, Schlumberger initially paid for Mr. Bartley’s medical treatment.
It later denied his claim when it received the Lafayette General medical records
given the history recorded in those records. Schlumberger relies on those medical
records and the time sheet introduced into evidence to show a contradiction with
Mr. Bartley’s version of the accident. Following a trial on the merits, the WCJ
concluded that Mr. Bartley had met his burden of proving a compensable work-
related accident.
According to Mr. Bartley, the subject accident occurred on March 23, 2015,
between 10:00 a.m. and 11:00 a.m. Mr. Bartley and one other employee3 were
working in one part of the Schlumberger facility while the other employees were
performing inventory in a different area of the facility. Mr. Bartley was operating
an overhead crane moving a magnetic tool. When the magnetic tool attached to
another tool, he attempted to pry the tools apart. In doing so, he claims he injured
3 This employee is referred to only as “Ethan.”
4 his neck. Initially, Mr. Bartley thought he had pulled a muscle, and he testified
that he did not immediately report an accident because he thought it wasn’t
anything significant. After this incident happened, Mr. Bartley took Ibuprofen and
later went home for lunch and to rest. He returned to work intending to do
paperwork for the remainder of the day.
Schlumberger relies upon time sheets introduced into evidence to dispute
Mr. Bartley’s claim that he sustained an accident between 10:00 a.m. and 11:00
a.m. Specifically, Schlumberger argues that the time sheet shows that Mr. Bartley
arrived at work at 7:30 a.m., left the shop at 8:30 a.m., returned to the shop at 1:30
p.m., and then clocked out for the day at 5:00 p.m.
Mr. Bartley testified that the time sheet generated by Schlumberger is
inaccurate and, further, that he does not know how Schlumberger got those hours
because he did not turn in a handwritten time sheet for that pay period since he
never returned to work after March 23, 2015.
Mr. Bartley testified that on the day of his accident, the time clock was
inoperable. When the time clock was not working, the employees were to prepare
a handwritten time sheet. Schlumberger’s Operations Clerk, whose job duties
include entering the employees’ time (from either the time clock punch card or the
employees’ handwritten time sheet), confirmed that the time clock was inoperable
in March 2015. Thus, Mr. Bartley’s time for the day in question would have been
documented by a handwritten time sheet for that day. That handwritten time sheet
would have been turned in to Schlumberger at the end of the work week.
According to protocol, the Operations Clerk would then input the employees’ time,
and a computer-generated time sheet would then be produced. It is this computer-
generated time sheet that was introduced into evidence.
5 Mr. Bartley maintains that the time sheet does not accurately reflect the
hours that he worked on March 23, 2015. Undisputedly, Mr. Bartley never did
return to work after the day of his accident. Thus, according to his testimony, Mr.
Bartley never did turn in a handwritten time sheet to be used for the subsequent
input of his time and production of the computer-generated time sheet. The
Operations Clerk admitted that she did not have Mr. Bartley’s handwritten time
sheet for comparison and testified that they are maintained for two weeks before
they are shredded.
Although it was impossible for the WCJ to compare a handwritten time
sheet with the time sheet introduced at trial, Mr. Bartley was adamant that he did
not work for one hour on March 23, 2015, and clock out at 8:30 a.m. Additionally,
the testimony of his co-employees fails to refute his presence at Schlumberger
between 10:00 a.m. and 11:00 a.m. Mr. Bartley and Ethan were the only two
employees performing work in this area of the shop at that time. The other
employees were performing other duties relative to inventory in different locations.
The testimony established that other employees saw Mr. Bartley during the course
of that day, but their testimony neither proves nor disproves his presence between
10:00 a.m. and 11:00 a.m. For these reasons, we find that neither the witnesses’
testimony nor the time sheet introduced into evidence cast serious doubt or negate
Mr. Bartley’s version of the accident.
Schlumberger contends that the medical records of Lafayette General also
cast serious doubt on Mr. Bartley’s account of the accident. Schlumberger argues
those records indicate that in relating a history to the hospital staff, Mr. Bartley
denied that he experienced a trauma, and he indicated that his pain had been
intermittent in nature for over eight weeks. On the other hand, Mr. Bartley
6 characterizes the records from Lafayette General as containing a “blatantly obvious
error in the electronic medical records[.]”
Mr. Bartley maintains that he related a history to the emergency room nurse
that he had pain for eight hours, not eight weeks as was erroneously documented.
Mr. Bartley testified he told the nurse that he felt neck pain while at work. He
argues that consistent with an accident occurring earlier that day, he also sent a text
message to his supervisor, Mr. Bonin, while he was at the hospital to let Mr. Bonin
know that he was at the hospital for treatment. Mr. Bartley and Mr. Bonin
exchanged more text messages the following day, and, on March 25, 2015, Mr.
Bartley went into the office, as requested by Mr. Bonin, to fill out the appropriate
paperwork to document his work-related accident.
Mr. Bartley notes that on March 25, 2015, he “gave a detailed recorded
statement to American Claims Service, Inc. (ACSI) investigator, Gerald Landry.”
According to Mr. Bartley, he gave the same history to Mr. Landry twenty-four
hours post accident as he had given to the emergency room nurse. Mr. Bartley also
notes that he provided a second statement on March 27, 2015, to the adjuster for
Travelers, Christopher Smith, which related a consistent history. According to Mr.
Bartley, this was the same consistent history he also gave to Dr. Gidman on March
25, 2015, and to Dr. Bertuccini on March 26, 2015. Therefore, Mr. Bartley
concludes that the Lafayette General medical records are simply incorrect, and he
points to the above information which he contends corroborates his account of how
the accident happened.
We have reviewed the evidence that was introduced and find that the
Lafayette General records do indeed contradict Mr. Bartley’s version of how the
accident occurred; however, the two statements given by Mr. Bartley and the
7 medical records from Dr. Gidman and Dr. Bertuccini are consistent and do
corroborate Mr. Bartley’s testimony. In short, the evidence does not cast serious
doubt or negate Mr. Bartley’s version of how the accident happened on March 23,
2015. There are two permissive views of the evidence in this case; as such, the
WCJ’s choice between them cannot be manifestly erroneous or clearly wrong.
Weaver v. La. Wholesale Drug Co., 15-747 (La.App. 3 Cir. 3/2/16), 186 So.3d 366,
writ denied, 16-631 (La. 5/20/16), 191 So.3d 1071. The WCJ made a specific
finding of fact that Mr. Bartley’s testimony was “sincere and credible.”
Considering the WCJ’s factual findings were based on a reasonable credibility
evaluation, we are not permitted to reverse same. Franklin, 108 So.3d 907.
Clearly, there is a reasonable factual basis in the record in support of the findings
of the WCJ, and we conclude that the WCJ did not manifestly err.
Mr. Bartley also bore the burden of proving a causal connection between the
work-related accident and the resultant injury. Broadway v. Shane Mitchell
Logging, Inc., 12-810 (La.App. 3 Cir. 12/12/12), 105 So.3d 1041. Schlumberger
argues on appeal that Mr. Bartley failed to meet his burden of proving “that he
sustained an injury causally related to his employment postion[.]” Although the
WCJ did not make an express finding on the element of causation, implicit in the
judgment awarding workers’ compensation benefits is a determination by the WCJ
that Mr. Bartley’s injuries were causally related to his March 23, 2015 accident.
Mr. Bartley maintains that while performing work at Schlumberger, he
injured his neck. The only evidence contradicting his claims are the medical
records from Lafayette General discussed above. Schlumberger also argues that
the medical records of Dr. Gidman and Dr. Bertucinni reflect a degenerative
condition. However, an aggravation of a pre-existing condition is compensable.
8 Turner v. Lexington House, 14-1264 (La.App. 3 Cir. 4/15/15), 176 So.3d 1071,
writ denied, 15-952 (La. 8/28/15), 176 So.3d 405. In this case, based upon the
record, we find Mr. Bartley satisfied his burden of proving that his injury was
causally related to the work-related accident of March 23, 2015.
On the issue of penalties and attorney fees, Schlumberger argues that it “was
more than reasonable after receiving the medical records wherein the employee
denied any accident” to deny Mr. Bartley’s claim. We disagree.
Louisiana Revised Statutes 23:1201 governs the award of penalties and attorney fees in workers’ compensation cases. The failure to authorize necessary medical treatment is considered a failure to furnish medical benefits, as required by La.R.S. 23:1203, and will subject the employer to penalties and attorney fees pursuant to La.R.S. 23:1201(F). However, penalties and attorney fees “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.” La.R.S. 23:1201(F)(2).
Prince v. Superior Energy Servs., L.L.C., 15-728, pp. 10-11 (La.App. 3 Cir.
12/16/15), 181 So.3d 961, 968, writ denied, 16-111 (La. 3/4/16), 188 So.3d 1063
(footnote omitted). A WCJ’s finding that the action of an employer warrants the
imposition of a penalty is a factual finding which is reviewed by an appellate court
for manifest error. Johnson v. Great West Cas. Co., 15-981 (La.App. 3 Cir.
3/16/16), 186 So.3d 1276, writ denied, 16-703 (La. 6/3/16), 192 So.3d 753.
In the instant matter, the WCJ’s oral reasons reflect that the basis for the
imposition of penalties was Schlumberger’s denial of benefits after having
obtained Mr. Bartley’s medical records from Lafayette General “without any
further investigation[.]” We agree with the WCJ.
“‘To avoid penalties and attorney[’]s fees for the nonpayment of benefits,
the employer or insurer is under a continuing duty to investigate, to assemble, and
to assess factual information before denying benefits.’” Ardoin v. Calcasieu
9 Parish Sch. Bd., 15-814, p. 4 (La.App. 3 Cir. 2/3/16), 184 So.3d 896, 900, writ
denied, 16-641 (La. 5/27/16), 192 So.3d 738 (quoting George v. Guillory, 00-591,
p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209, overruled on other grounds,
Smith v. Quarles Co., 04-179 (La.10/29/04), 885 So.2d 562). Although the
medical records from Lafayette General understandably raised questions about Mr.
Bartley’s claim, at that point, Schlumberger had paid Mr. Bartley’s medical
expenses and had additional information corroborating the occurrence of the
accident which, at the very least, warranted further investigation, which
Schlumberger failed to conduct.
Mr. Bartley had provided two consistent statements relating the manner in
which he was injured. Additionally, the medical records from Dr. Gidman and Dr.
Bertuccini contained the same history. Thus, we find no manifest error in the
WCJ’s determination that based upon the evidence, Schlumberger did not
reasonably controvert Mr. Bartley’s claim when it failed “to investigate, to
assemble, and to assess factual information before [discontinuing] benefits.” Id.
Finally, in his answer to appeal, Mr. Bartley seeks an award of additional
attorney fees for the work necessitated by the present appeal. “‘An increase in
attorney’s fees is awarded on appeal when the defendant appeals, obtains no relief,
and the appeal has necessitated more work on the part of the plaintiff’s attorney,
provided that the plaintiff requests such an increase.’” Turner, 176 So.3d at 1087
(quoting McKelvey v. City of Dequincy, 07-604, pp. 11-12 (La.App. 3 Cir.
11/14/07), 970 So.2d 682, 690). In the case at bar, considering our ruling herein in
favor of Mr. Bartley, we find that attorney fees in the amount of $3,000.00 are
warranted for the work done on the appeal of this case.
10 DECREE
For the reasons set forth above, the judgment of the Office of Workers’
Compensation in favor of Alvin Bartley is affirmed. Additionally, we render
judgment herein in favor of Alvin Bartley against M-I LLC d/b/a M-I SWACO, a
Division of Schlumberger Technology Corporation, and Travelers Property
Casualty Company of America in the amount of $3,000.00 for the work done on
appeal. Costs of this appeal are assessed to M-I LLC d/b/a M-I SWACO, a
Division of Schlumberger Technology Corporation, and Travelers Property
Casualty Company of America.