Broussard v. Country Club Auto Repair

56 So. 3d 1180, 10 La.App. 3 Cir. 1116, 2011 La. App. LEXIS 104, 2011 WL 309618
CourtLouisiana Court of Appeal
DecidedFebruary 2, 2011
DocketNo. 10-1116
StatusPublished

This text of 56 So. 3d 1180 (Broussard v. Country Club Auto Repair) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Broussard v. Country Club Auto Repair, 56 So. 3d 1180, 10 La.App. 3 Cir. 1116, 2011 La. App. LEXIS 104, 2011 WL 309618 (La. Ct. App. 2011).

Opinion

PETERS, J.

[,The defendant in this workers’ compensation litigation matter, Country Club Auto Repair, Inc. (Country Club Auto Repair), a Lake Charles, Louisiana automotive body shop, appeals the judgment of the workers’ compensation judge (WCJ) which found that the plaintiff, Michael Broussard, suffered a work-related accident and which awarded him weekly indemnity benefits, reasonable medical treatment, and statutory penalties and attorney fees. Mr. Broussard answered the appeal seeking an additional attorney fee award for work performed by his attorney on appeal. For the following reasons, we affirm the WCJ judgment in all respects and render judgment in favor of Mr. Broussard and against Country Club Auto Repair in the amount of $5,000.00 as attorney fees for work performed by Mr. Broussard’s counsel on appeal.

DISCUSSION OF THE RECORD

Mr. Broussard suffered a work-related injury on July 27, 2007, while working as a body technician for Country Club Auto Repair.1 The accident occurred when a jack collapsed and caused an automobile to fall on Mr. Broussard as he was attempting to push the tires back onto a frame-straightening machine from underneath the fender.

Mr. Broussard reported to Mike Crisp, his immediate supervisor, but Mr. Crisp did not take the report seriously. When Mr. Broussard requested access to medical care the next day, Mr. Crisp rejected his request. Mr. Broussard then approached Wesley Berlin, the company manager, with his claim and was immediately fired.

Two days after the accident, Mr. Brous-sard presented himself to the LSU — W. O. Moss Regional Emergency Room (Moss Regional) in Lake Charles, complaining of pain in his right shoulder, right scapula, neck, and lower back. The ^emergency room personnel examined him, took x-rays of his right shoulder and knee, prescribed pain medication and muscle relaxers, and told him to follow up with an orthopedic surgeon.

Mr. Broussard returned to the Moss Regional emergency room on August 7, 2007, again complaining of pain in his right knee, neck, and back. He was again given pain medication and was told to return if there was no improvement. On that day, he saw Dr. Harpal Benipal, an internist at Moss Regional’s outpatient clinic and his primary care physician. X-rays of Mr. Broussard’s shoulder and knee were basically negative, but an x-ray of his lumbar spine revealed an old anterior compression fracture at L2. At various times thereafter, Dr. Benipal prescribed Mr. Broussard pain medication for his back and neck pain and placed him on anti-depressants for depression. On May 20, 2008, Dr. Benipal referred Mr. Broussard to LSU for pain [1183]*1183management based on his chronic lower back and neck pain. In association with this referral, he issued a no work excuse for a three-month period commencing that day.

Three days after he presented himself to the emergency room on August 7, 2007, Mr. Broussard was involved in a serious automobile accident wherein he received additional injuries. Mr. Broussard was treated at Moss Regional for this incident as well when he presented himself to the emergency room complaining of neck, back, right leg, and left forearm pain. The emergency room physician concluded that Mr. Broussard suffered from an acute lumbar sprain and from a lacerated left elbow. He received stitches in his left forearm, was given pain medication, and released.

|sThe next day, Mr. Broussard sought treatment at the Louisiana State University Health Sciences Center’s Emergency Care Center in Shreveport, Louisiana (LSU Shreveport). There, he complained of blood in his urine, pain in his chest, left foot, and right ankle, and an abrasion to his lower right leg. X-rays and CT scans were performed, which revealed a right inguinal hernia, transverse process fractures at TI, L2, and L3 on the left, and two fractured ribs on his left side. After a negative assessment by the Neurosurgery Department, Mr. Broussard was released to return home.

On August 15, 2007, Mr. Broussard returned to LSU Shreveport after his family reported him being disoriented and hallucinating after he abruptly stopped his pain medications. He was hospitalized for five days while undergoing evaluation by the psychiatry department. He was discharged pursuant to three diagnoses on August 21, 2007: delirium secondary to benzodiazepine withdrawal, hypertension, and major depressive disorder.

On October 3, 2007, Mr. Broussard filed a disputed claim for compensation against his employer seeking indemnity benefits and medical treatment as well as penalties and attorney fees for Country Club Auto Repair’s failure to provide these benefits. After issue was joined, the WCJ authorized a one-time evaluation by Dr. Dale Bernauer, a Lake Charles orthopedic surgeon.

Trial on the merits initially occurred on April 8, 2009. On July 10, 2009, the WCJ rendered judgment finding that Mr. Broussard had suffered a work-related accident on July 25, 2007, and awarded him weekly temporary total disability benefits (TTD) of $469.52 payable from the date of the accident until modified in the future. The WCJ also awarded Mr. Broussard all reasonable and necessary medical treatment [4as might be determined by Dr. Bernauer and awarded him penalties of $2,000.00 for his employer’s failure to pay indemnity benefits, $2,000.00 for his employer’s failure to provide medical benefits, and $11,800.00 in attorney fees.

Thirteen days later, on July 23, 2009, Country Club Auto Repair filed a motion for new trial, asserting that it had acquired evidence of fraudulent statements made by Mr. Broussard during his testimony at trial. Country Club Auto Repair subsequently amended its answer to formally raise allegations of fraud on the part of Mr. Broussard. Over Mr. Broussard’s objections and his own reservations, the WCJ granted the employer’s motion for new trial and heard the matter a second time on January 27, 2010. The only changes in the judgment resulting from the second trial related to the nature of the weekly benefit and the amount of the attorney fee. Instead of awarding TTD benefits, the WCJ changed the award to supplemental earning benefits (SEBs) with a zero rate earning capacity. Additionally, the WCJ increased the attorney fee award by $5,000.00 to $16,800.00.

[1184]*1184Country Club Auto Repair suspensively appealed the WCJ judgment, asserting five assignments of error:

1. The Trial Court erred in not finding fraud under 28:1208 by finding that plaintiff did not deliberately make false statements under oath about his ability to work, his ability to perform activities, and the child support lien in order to obtain workers’ compensation benefits.
2. The Trial Court erred in finding that the injuries claimed by plaintiff were caused by the alleged work accident of July 25, 2007.
3. The Trial Court erred in not finding that the subsequent motor vehicle accident of August 10, 2007 was the intervening cause of plaintiffs disability and medical treatment.
4. The Trial Court erred in finding plaintiff to be entitled to disability benefits from July 25, 2007 to the present since plaintiff failed to prove disability related to the work accident.
|fi5. The Trial Court erred in assessing penalties and attorney fees against the employer because the employer had reasonably controverted the claim.

Mr.

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Bluebook (online)
56 So. 3d 1180, 10 La.App. 3 Cir. 1116, 2011 La. App. LEXIS 104, 2011 WL 309618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broussard-v-country-club-auto-repair-lactapp-2011.