STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-16
ANGELO BRACEY
VERSUS
CITY OF ALEXANDRIA
**********
APPEAL FROM THE OFFICE OF WORKERS‟ COMPENSATION, DISTRICT 2 PARISH OF RAPIDES, NO. 11-04410 JAMES L. BRADDOCK, WORKERS‟ COMPENSATION JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
Gremillion, J., concurs in part and dissents in part and assigns written reasons.
AFFIRMED.
Lewis O. Lauve, Jr. Bussey & Lauve, LLC Post Office Box 8778 Alexandria, Louisiana 71306-1778 (318) 449-1937 Counsel for Defendant/Appellant: City of Alexandria Malcolm X. Larvadain Attorney at Law 626 Eighth Street Alexandria, Louisiana 71301 (318) 445-3533 Counsel for Plaintiff/Appellee: Angelo Bracey KEATY, Judge.
Employer appeals from a judgment rendered by the worker‟s compensation
judge (WCJ) in favor of former employee. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On April 21, 2010, Angelo Bracey (Bracey) filed a 1008 Disputed Claim for
Compensation (1008) against his employer, the City of Alexandria (the City),
seeking medical treatment pursuant to the Louisiana Workers‟ Compensation Act
(LWCA), La.R.S. 23:1021-1415, for injuries that he sustained in a workplace
accident on May 22, 2009, while he was employed by the City as a firefighter.
Therein, he contended that he injured his right leg and hip when he stepped into a
hole while cutting grass with a push lawn-mower at the fire station. He alleged
that no medical treatment had been authorized, and he sought authorization for an
MRI arthrogram that had been recommended by Dr. Daniel Oas. In an amended
1008 filed on May 21, 2010, Bracey sought an award of statutory penalties and
attorney fees. Bracey filed a separate 1008 on June 14, 2011, seeking
authorization to be seen by Dr. Brett Cascio, an orthopedist specializing in hip
injuries, for the injuries he sustained in the May 22, 2009 workplace accident. On
August 8, 2011, the WCJ signed an order consolidating the two actions for trial
purposes. The matters were tried on May 23, 2012. At trial, the parties stipulated
that Bracey was a City employee on the date of the alleged accident and that the
maximum compensation rate would apply if Bracey were awarded workers‟
compensation benefits. On July 24, 2012, the WCJ issued an oral ruling in favor
of Bracey awarding him Temporary Total Disability Benefits (TTDs); ordering the
City to pay for Bracey‟s continued care for his right labrum tear by Dr. Cascio;
awarding Bracey a $2,000 penalty for the City‟s failure to authorize further medical care for his injury; awarding Bracey $2,000 in penalties for the City‟s
failure to recognize the validity of his claim; awarding Bracey $7,500 in attorney
fees; and assessing the City with all costs and ordering interest to run on all sums
from the date they were due. Written judgment was signed on October 17, 2012.
The City now appeals, asserting that the trial court erred: 1) in finding that
Bracey established by a preponderance of the evidence that he sustained a work-
related injury that made him in need of medical care and unable to work for the
City; 2) in finding that Bracey proved that the work-related accident had caused a
torn labrum in his right hip; 3) in finding that Bracey established by clear and
convincing evidence his entitlement to TTDs; and 4) in assessing it with penalties
and attorney fees. Bracey has answered the appeal seeking an additional award of
attorney fees to cover the cost of having to defend the appeal.
DISCUSSION
Work-Related Accident
A worker bringing a compensation action against his employer bears the
burden of proving, as a threshold requirement, that he suffered “personal injury by
accident arising out of and in the course of his employment.” Bruno v. Harbert
Int’l Inc., 593 So.2d 357, 360 (La.1992); La.R.S. 23:1031(A). The word
“accident” as used in La.R.S. 23:1031 is defined 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.” La.R.S. 23:1021(1).
Factual findings in workers‟ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94); 633
2 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder‟s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder‟s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, „„if the [factfinder‟s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.‟‟ Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811
So.2d 1160, 1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d 784.
“The determination of coverage is a subjective one in that each case must be
decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218,
220 (La.1981). “[T]he manifest error standard of appellate review applies in
workers compensation cases and great deference is accorded to the [workers‟
compensation judge‟s] factual findings and reasonable evaluations of credibility.”
Central Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d
591, 593, writ denied, 04-315 (La. 4/2/04), 869 So.2d 880 (quoting Garner v.
Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).
Bracey testified that while mowing the grass at the fire station on the
morning of May 22, 2009, he stepped into a hole and injured his right hip when he
turned to get out of the hole. Within minutes of the accident, he told his supervisor,
Captain Charles Lane, that he had been injured. He and Captain Lane filled out an
accident report, and he was sent to Dr. Gordon Webb, a physician specializing in
occupational and emergency medicine. Dr. Webb diagnosed him with a strained
right bicep femorous. He told Bracey not to work and scheduled a follow-up
appointment for May 29, 2009. At that visit, Bracey still had complaints of leg
pain, so Dr. Webb ordered him to remain off work until June 8, 2009. When
3 Bracey returned to Dr. Webb‟s office on June 5, 2009, he was released to return to
work, effective June 8, 2009, although he still had complaints of leg pain which he
described as “one” on a scale of one to ten. Bracey last saw Dr. Webb in
conjunction with the injuries he sustained in the May 22 work-place accident on
June 23, 2009. At that time, he again reported right leg pain of “one” on a scale of
one to ten. Bracey also reported having increased pain across his right hip since
recently jumping off the tailgate of his truck. According to Dr. Webb‟s notes from
that visit, Dr. Webb believed that this pain represented a new problem, not work
related, as Bracey had not previously had pain across his hip joint.
Bracey was scheduled to work twenty shifts of twenty-four hours each
between June 9 through August 6, 2009, after which he had a scheduled vacation
until September 11, 2009. He worked eleven of those shifts and “laid off” the
remaining nine. Bracing testified that “laying off” meant getting someone else to
cover a shift. He stated that shifts could not be “laid off” due to illness or injury
and that any shifts missed for those reasons “would be coded as „sick time‟ or
„workers‟ comp.‟” When Bracey returned from vacation, he worked six shifts and
“laid off” another two shifts.
Beginning on October 13, 2009, Bracey was off work while treating with
psychiatrist Dr. Edwin Urbi for issues/depression stemming from his wife‟s
disclosure of infidelity. Dr. Urbi released Bracey from his care and cleared him to
return to work on January 7, 2010. On that date, Bracey was seen by Dr. Robert
Rush, a board certified physician in the field of occupation medicine, for injuries
he sustained to his neck and back in a non-work-related automobile accident on
November 28, 2009. Bracey never complained of hip pain to Dr. Urbi. While he
also did not initially complain to Dr. Rush about any hip pain, on January 12, 2010,
4 he complained to physical therapist Oday Lavergne that he had “pain in the right
lower extremity especially in the right anterior groin,” leading Lavergne to
recommend that Bracey undergo an MRI arthrogram to assess the cause of his pain.
Thereafter, Bracey requested that the City send him to Dr. Dan Oas, a
specialist in orthopaedic and sports medicine. Dr. Oas first saw Bracey on
March 17, 2010. After examining Bracey, Dr. Oas believed that he had a torn right
labrum, given the type of symptoms he was having and the length of time that
those symptoms had lasted. At that time, Dr. Oas recommended that Bracey
undergo an MRI arthrogram of his right hip along with a contemporaneous
therapeutic injection to enable him to ascertain a better diagnosis of the cause of
his hip pain. According to Andy Storer, an adjuster for the City, further treatment
related to the right hip was denied because he believed that those complaints were
related to the November 2009 automobile accident rather than Bracey‟s May 2009
work accident. Bracey continued treatment with Dr. Oas using his private health
insurance, and on September 29, 2010, he received the recommended MRI
arthrogram and injection to his right hip. The MRI report noted that it was
“suspicious for [a] right sided labral tear.” In early October 2010, Bracey returned
to Dr. Oas and reported that his symptoms had improved and he wanted to return
to work.
The testimony revealed that before allowing Bracey to resume his
employment, the City sent him back to Dr. Webb for a return-to-work examination.
On October 29, 2010, after reviewing the MRI report and examining Bracey,
Dr. Webb issued a report opining that Bracey‟s labrum tear made it “exceedingly
unlikely that [he] will be able to perform his full duties as a fireman and that there
5 is a high risk of injury to himself which could result in serious injury or death to
himself of others should this occur at a critical moment.”
Throughout the time applicable to this matter, Bracey had check-ups at the
Veteran‟s Affairs Medical Center in Alexandria (the VA) as a result of his having
served in the Iraq War as a member of the United States Air Force. During a
routinely scheduled visit on May 27, 2009, Bracey reported that he had been
experiencing right hip pain since stepping in hole while mowing grass at work
several days prior.
The City contends that the WCJ committed manifest error when it found that
Bracey proved that he suffered an injury that made him in need of medical care and
unable to work because Bracey returned to work at full duty on June 8, 2009,
without complaint, and without the need for additional medical care until he was
involved in a non-work-related automobile accident on November 28, 2009. Thus,
while it concedes in its appellant brief that Bracey did suffer a work-related
accident that resulted in his being temporarily disabled due to a strain of his bicep
femorous muscle, the City emphatically denies that the accident caused the torn
labrum which prevents him from returning to his job as a firefighter for the City.
Bracey counters that the City‟s analysis oversimplifies the evidence and
Bracey‟s actual physical injuries. Bracey submits that when Dr. Webb released
him to full duty on June 8, 2009, he was still suffering from right leg pain which he
described as one out of ten, which never disappeared, and which increased when he
put weight on his right leg and turned. He also points to Dr. Webb‟s deposition
testimony wherein he stated that: 1) it can be difficult to pinpoint the exact cause
of hip pain and that doctors often have to take a “wait-and-see” approach, and 2)
6 typically, if hip pain resolves quickly it was due to a strain, but if the pain lingers,
it was due to a more serious condition.
Bracey also refers this court to the deposition testimony of Dr. Rush wherein
he stated that hip injuries such as a torn labrum can easily be missed and are
difficult to diagnose. Bracey further points to Dr. Rush‟s opinion that while the
automobile accident that Bracey was involved in on November 28, 2009 may have
aggravated his torn labrum, it did not cause the tear given Bracey‟s physical
condition and complaints when he examined Bracey on January 7, 2010. Bracey
asks this court to consider Dr. Rush‟s belief that the cervical and lumbar strains
Bracey sustained in the automobile accident could have masked his torn labrum
until those more acute injuries had resolved.
Finally, Bracey submits that he was a credible witness, that the medical
evidence supports his claim, and that he carried his burden of proving that he
suffered injuries in a work-related accident that render him incapable of returning
to work as a firefighter for the City.
In its oral reasons, the WCJ found that Bracey proved by a preponderance of
the evidence “that he had an incident that involved him sustaining an injury that
made him in need of medical care and made him incapable of working for the
City.” The WCJ stated that he based this finding primarily on the Alexandria Fire
Department Accident Report, which was completed minutes after the accident,
along with the Supervisor‟s Accident Investigation Report prepared by Captain
Lane later that day, and the Employer Report of Injury/Illness that the City filed
with the Office of Workers‟ Compensation on May 26, 2009. Each of those
reports indicated that Bracey had stepped into a hole or low spot while mowing
grass at the fire station. In two of the reports, it was noted that Bracey hurt his
7 right hip when he turned. In the third, Captain Lane wrote that Bracey‟s groin area
was hurting after the accident. The WCJ also noted that on the date of the accident,
the fire department sent Bracey to Dr. Webb who after examining Bracey,
diagnosed him with a bicep femorous muscle strain of the right leg, which caused
pain from behind his right knee, along the bicep and up into the buttock and hip.
After having reviewed the testimony and evidence, we cannot say that the
WCJ committed manifest error in finding that Bracey was injured in a work-related
accident that made him in need of medical care and unable to return to his former
job with the City, especially in light of the results of the MRI arthrogram which
showed that he likely had a labrum tear in his right hip and Captain Lane‟s
testimony that even though Bracey worked as a driver, any injured firefighter had
to be 100% to return to work should he be pressed into full duty to fight a fire.
There is no merit to the City‟s first assignment of error.
Causation of Torn Labrum
The City insists that there is an absence of definitive expert testimony to
support the WCJ‟s finding that Bracey‟s torn labrum was caused by his work-
related accident. It submits that Bracey‟s hip injury was more likely caused by his
November 2009 automobile accident, given that he did not voice any complaints of
hip or groin pain to Dr. Urbi when he was being treated for depression at the end of
2009. Bracey disagrees, arguing that he voiced a right hip injury on the date of the
accident and several days later to his physicians at the VA, long before he was
involved in the automobile accident which the City points to as the cause of his hip
injury.
In its reasons for judgment, the WCJ stated that the medical evidence
successfully rebutted the City‟s claim that Bracey did not experience any hip or
8 groin pain until long after his work-related accident. The WCJ made particular
reference to a note in Bracey‟s records from the VA dated May 27, 2009, less than
a week after the lawn mower accident, wherein Bracey described having pain in
his hip that increased when he twisted in a certain way.
After review of the record, we cannot say that the WCJ‟s conclusion that
Bracey‟s torn labrum was caused by his May 2009 work injury was clearly wrong.
The City‟s second assignment of error is without merit.
Entitlement to TTDs
The City posits that the WCJ erred in finding that Bracey proved his
entitlement to TTDs as the facts show that he was able to return to work and earn
his full salary, without complaint and without the need for additional medical
treatment until after being involved in a non-work-related automobile accident six
months after the lawn mower incident at work. Bracey counters that the evidence
supports his claims. He concedes that he may not have effectively communicated
his initial symptoms to Dr. Webb, and he again points to the testimony indicating
that hip injuries can be difficult to explain and diagnose. Finally, Bracey submits
that he was a credible witness and that the City failed to offer any evidence that
would tend to cast any suspicion on the reliability of his testimony.
“The issue of disability within the framework of the workers‟ compensation
law is a legal rather than a purely medical determination. The issue of disability is
determined with reference to the totality of the evidence, including both lay and
medical testimony.” Green v. Nat’l Oilwell Varco, 10-1041, p. 13 (La.App. 3 Cir.
4/27/11), 63 So.3d 354, 363 (citations omitted) (quoting Odom v. Kinder Nursing
Home, 06-1442, p. 5 (La.App. 3 Cir. 4/25/07), 956 So.2d 128, 132).
9 The WCJ concluded that Bracey established his entitlement to TTDs by
clear and convincing evidence. In so concluding, the WCJ noted Dr. Webb‟s
opinion that Bracey‟s labrum tear made him “incapable of performing the job
functions of a driver or fire personnel” for the City. Given our affirmation of the
WCJ‟s finding that Bracey‟s work-related accident was the cause of his torn
labrum, we cannot say that the WCJ manifestly erred in concluding that Bracey
proved his entitlement to TTDs. There is no merit to the City‟s third assignment of
error.
Penalties and Attorney Fees
Louisiana Revised Statutes 23:1201 is the relevant statute in determining whether an employer should be assessed penalties and attorney fees for failure to timely pay indemnity or medical benefits. The statute provides that no penalties or attorney fees shall be assessed “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer . . . had no control. La.R.S. 23:1201(F)(2). Further, “[t]o avoid the imposition of penalties and attorney fees for the nonpayment of benefits, the employer has a continuing obligation to investigate, to assemble, and to assess factual information before denying benefits.” Romero v. Northrop–Grumman, 01-24, pp. 10-11 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, 1156, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144.
An employer avoids the imposition of penalties and attorney‟s fees by satisfying its continuing obligation to investigate, assemble, and assess factual information prior to it denying benefits. Furthermore, the decision to award penalties and attorney‟s fees is factual in nature and will not be reversed on appeal absent manifest error.
Odom [v. Kinder Nursing Home], 956 So.2d at 141-42 (citations omitted). “The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers.” Burns v. Interstate Brands Corp., 09-705, p. 7 (La.App. 3 Cir. 2/3/10), 30 So.3d 271, 277.
Green, 63 So.3d at 364.
10 While the City asserts that the WCJ erred in awarding Bracey penalties and
attorney fees, it fails to offer any support for its assertion, instead merely offering
the conclusory statement that the WCJ erred in finding that it acted arbitrarily
and/or capriciously in the handling of Bracey‟s claim. Bracey counters that the
WCJ did not manifestly err in finding that the City failed to reasonably controvert
his claim for surgery and other medical benefits, noting that the WCJ found him to
be credible.
In awarding Bracey penalties and attorney fees, the WCJ found that given
the fact that records from the VA Medical Center showed that Bracey had
complained of sharp right hip pain on a May 27, 2009 visit, the City‟s continued
resistance to recognize the validity of Bracey‟s claim that his right hip pain was
attributable to his May 2009 work accident and its failure to authorize further
medical care for Bracey‟s hip injury was arbitrary and capricious.
After having reviewed the testimony and evidence, we cannot say that the
WCJ committed manifest error in finding that Bracey had proved his entitlement to
penalties and attorney fees. The City‟s final assignment of error has no merit.
Bracey’s Answer to Appeal
Bracey answered the City‟s appeal to request that it be awarded additional
attorney fees for work done on appeal. In Nash v. Aecom Technology Corp., 07-
990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268, this court held that “[a]
workers‟ compensation claimant is entitled to an increase in attorney fees to reflect
additional time incurred in defending an employer/insurer‟s unsuccessful appeal.”
We award Bracey additional attorney fees of $4,000 for the costs associated with
having to defend this appeal.
11 DECREE
The judgment rendered by the workers‟ compensation judge in favor of
Angelo Bracey is affirmed in its entirety. Bracey is awarded additional attorney
fees of $4,000 for work performed on this appeal. All costs of this appeal are
assessed against the City of Alexandria.
12 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
GREMILLION, J., concurs in part and dissents in part and assigns written
reasons.
I agree with my colleagues that the primary issue is whether Mr. Bracey
injured his right hip as a result of the unwitnessed May 22, 2009 accident wherein
he allegedly stepped in a hole. In my view, the weight of the evidence suggests
that he did not.
I find that the weight of the evidence suggests that he sustained a minor
strain to a muscle in his right leg, resulting in only missing a few weeks from work
and minimal pain.
Further, I find that the weight of the evidence indicates that the right hip
injury was caused by a separate, unrelated incident wherein Mr. Bracey jumped
from a truck in June 2009 or an unrelated automobile accident that occurred in
November 2009 or a combination of those two unrelated incidents.
Nevertheless, it is also true that Mr. Bracey did tangentially reference his
right hip in a visit to Dr. Gordon Webb shortly after the subject work-related
accident and again when he made an unrelated visit to the V.A. Medical Center
about a week after the work-related accident.
This evidence, in my opinion, does not rise to the level of a preponderance.
It does, however, fit within the broad bounds of the manifest error of review. Thus,
I agree with my colleagues that there is no basis in this record to reverse the workers’ compensation court with regard to its conclusion that Mr. Bracey was
disabled as a result of this accident. I, therefore, join my colleagues in affirming
that portion of the trial court’s ruling.
However, I respectfully disagree with the majority’s decision to affirm the
penalties and attorney fees. In addition to the fact that the weight of the evidence
suggested that Mr. Bracey did not injure his right hip in the subject work-related
accident, there is also specific evidence in this record indicating that Mr. Bracey
denied a hip injury altogether. And, there is evidence that a medical care provider
specifically determined that the right hip injury was caused by an unrelated
accident. Thus, I find that the employer reasonably controverted Mr. Bracey’s
assertion that his right hip was injured in the subject work-related accident. I
would, therefore, reverse the workers’ compensation court’s award of penalties and
attorney fees.