STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 20-28
CHARLES EVANS
VERSUS
WINN LUMBER COMPANY, LLC AND BRIDGEFIELD CASUALTY INSURANCE COMPANY
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 2 PARISH OF WINN, NO. 18-08195 JAMES L. BRADDOCK, WORKERS COMPENSATION JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Billy Howard Ezell, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED. H. Douglas Hunter Guglielmo, Lopez 306 East North Street Opelousas, LA 70570 (337) 948-8201 COUNSEL FOR DEFENDANT/APPELLEE: Bridgefield Casualty InsuranceCompany Winn Lumber Company, LLC
Joseph Payne Williams Williams Family Law Firm, LLC 162 Jefferson Street Natchitoches, LA 71458 (318) 352-6695 COUNSEL FOR PLAINTIFF/APPELLANT: Charles Evans EZELL, Judge.
Charles Evans appeals the decision of the workers’ compensation judge
below denying his claims for supplemental earnings benefits (SEBs) and penalties
and attorney fees. For the following reasons, we hereby affirm the decision of the
workers’ compensation judge in part, reverse in part, and render judgment.
Mr. Evans worked as a forklift driver at Winn Lumber Company, moving
pallets of kiln-dried wood to a planer. On December 19, 2017, Mr. Evans was
struck in the left eye by a stacking stick that had become entangled in a conveyor
belt, severely and permanently injuring his eye. As a result of the injury, Mr.
Evans is functionally blind in his left eye. It is undisputed that Mr. Evans was in
the course and scope of his employment when the injury occurred.
After Mr. Evans filed a disputed claim for compensation on December 10,
2018, Winn Lumber’s insurer issued a check for $48,224 for 100 weeks of
disability benefits for loss of vision in his left eye pursuant to La.R.S.
23:1221(4)(i). An additional check was issued for $937 when the insurer
acknowledged the initial payment failed to include bonuses. Mr. Evans proceeded
with his claim, seeking SEBs, which the workers’ compensation judge denied. The
workers’ compensation judge further denied his claims for penalties and attorney
fees for the underpayment of benefits. From that decision, Mr. Evans appeals.
On appeal, Mr. Evans asserts three assignments of error. He claims that the
workers’ compensation judge erred in denying his claims for SEBs, in denying his
claims for penalties and attorney fees, and in not awarding interest on any
disability awards.
Mr. Evans first claims the workers’ compensation judge erred in failing to
award him SEBs at a zero earning capacity. We disagree. The purpose of SEBs is to compensate an injured employee for the wage-
earning capacity lost as a result of a work-related accident.” Lacaze v. Alliance
Compressors, 03-1566, p. 4 (La.App. 3 Cir. 4/14/04), 870 So.2d 1150, 1154 (citing
City of Jennings v. Dequeant, 96-943 (La.App. 3 Cir. 11/5/97), 704 So.2d 264, writ
denied, 98-610 (La. 4/24/98), 717 So.2d 1174). Initially, “[t]he injured employee
bears the burden of proving, by a preponderance of the evidence, that the injury
resulted in his or her inability to earn [90% or more of the average pre-injury wage]
under the facts and circumstances of the individual case.” Freeman v.
Poulan/Weed Eater, 93-1530, p. 7 (La. 1/14/94), 630 So.2d 733, 739. On review,
an appellate court must not re-weigh evidence or to substitute its own factual
findings just because it may have decided a case differently. Bonin v. Ferrellgas,
Inc., 03-3024 (La. 7/2/04), 877 So.2d 89. Based on the record before this court, we
cannot find error in the workers’ compensation judge’s determination that Mr.
Evans failed to meet his burden of proof.
The workers’ compensation judge did not dispute the finding of the doctors
that Mr. Evans was functionally blind in his left eye, but there was little to no
evidence as to how this affected or related to his ability to earn a living. While Mr.
Evans’ treating ophthalmologist, Dr. Patrick Redmond, was obviously concerned
that Mr. Evans could have problems operating a forklift with his monocular vision,
it is clear from the record that Mr. Evans performed his job for two months with no
problems whatsoever, prior to being terminated for sleeping on the job. Dr.
Redmond stated that he was unaware that OSHA regulations do not prohibit Mr.
Evans from operating a forklift and would allow employers to determine if limited
vision would be dangerous for any particular job. He did not prohibit his
monocular patients from driving vehicles in general, as he deferred that to the
2 Department of Motor Vehicles. Moreover, Dr. Redmond did not know that Mr.
Evans had successfully returned to his job, without incident, when he stated that he
felt Mr. Evans could not safely operate heavy machinery.
In fact, the record shows that Mr. Evans was very much capable of working
as a forklift operator at Winn Lumber after his accident, as he performed those
exact duties until he was fired for cause. Mr. Evans had previously been warned
that sleeping at work was a fireable offense but was given a second chance. While
Mr. Evans himself testified that he had some concerns for the safety of others, he
stated that he did the same work as before the injury without complaint, and with
no incidents or accidents. In fact, his immediate supervisor, Billy Stewart, stated
that he did a great job until his termination. His employer, Robert Schutte, testified
that had he not been terminated for sleeping on the job, he would still be employed
at Winn Lumber in his same position. “[A]n injured employee cannot . . .
blatantly violate company policy without the possibility of recourse by the
employer.” Palmer v. Alliance Compressors, 05-478, p. 4 (La.App. 3 Cir. 11/2/05),
917 So.2d 510, 513, writ denied, 05-2440 (La. 3/24/06), 925 So.2d 1231. The fact
that a job is no longer available to an employee solely due to his own actions
terminates his entitlement to SEBs. Id.
There is no other direct evidence in the record concerning Mr. Evans’ ability
to earn 90% of his pre-injury wages. While his prospects being reduced may be a
likely assumption based on Mr. Evans’ education difficulties and the injury, it
remains his duty as a claimant to prove reduced earning capacity in order to be
awarded SEBs. After reviewing the record, we cannot find the workers’
compensation judge was manifestly erroneous in ruling that he did not meet that
burden.
3 Mr. Evans next claims the workers’ compensation judge erred in failing to
award him penalties and attorney fees for the undisputed underpayment of
disability benefits. We agree.
Louisiana Revised Statutes 23:1201(F) imposes a penalty for “failure to
provide payment.” Penalties will not be imposed if they are “reasonably
controverted or if such nonpayment results from conditions over which the
employer or insurer had no control.” Id. The determination of whether an
employer or insurer should be cast with penalties and attorney fees is a question of
fact, subject to the manifest error or clearly wrong standard of review. Authement v.
Shappert Eng’g, 02-1631 (La. 2/25/03), 840 So.2d 1181.
A review of the record reveals that Winn Lumber and its insurer failed to
pay Mr. Evans the correct amount of disability benefits because it twice failed to
take bonuses into account when it calculated his average weekly wage.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 20-28
CHARLES EVANS
VERSUS
WINN LUMBER COMPANY, LLC AND BRIDGEFIELD CASUALTY INSURANCE COMPANY
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 2 PARISH OF WINN, NO. 18-08195 JAMES L. BRADDOCK, WORKERS COMPENSATION JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Billy Howard Ezell, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED. H. Douglas Hunter Guglielmo, Lopez 306 East North Street Opelousas, LA 70570 (337) 948-8201 COUNSEL FOR DEFENDANT/APPELLEE: Bridgefield Casualty InsuranceCompany Winn Lumber Company, LLC
Joseph Payne Williams Williams Family Law Firm, LLC 162 Jefferson Street Natchitoches, LA 71458 (318) 352-6695 COUNSEL FOR PLAINTIFF/APPELLANT: Charles Evans EZELL, Judge.
Charles Evans appeals the decision of the workers’ compensation judge
below denying his claims for supplemental earnings benefits (SEBs) and penalties
and attorney fees. For the following reasons, we hereby affirm the decision of the
workers’ compensation judge in part, reverse in part, and render judgment.
Mr. Evans worked as a forklift driver at Winn Lumber Company, moving
pallets of kiln-dried wood to a planer. On December 19, 2017, Mr. Evans was
struck in the left eye by a stacking stick that had become entangled in a conveyor
belt, severely and permanently injuring his eye. As a result of the injury, Mr.
Evans is functionally blind in his left eye. It is undisputed that Mr. Evans was in
the course and scope of his employment when the injury occurred.
After Mr. Evans filed a disputed claim for compensation on December 10,
2018, Winn Lumber’s insurer issued a check for $48,224 for 100 weeks of
disability benefits for loss of vision in his left eye pursuant to La.R.S.
23:1221(4)(i). An additional check was issued for $937 when the insurer
acknowledged the initial payment failed to include bonuses. Mr. Evans proceeded
with his claim, seeking SEBs, which the workers’ compensation judge denied. The
workers’ compensation judge further denied his claims for penalties and attorney
fees for the underpayment of benefits. From that decision, Mr. Evans appeals.
On appeal, Mr. Evans asserts three assignments of error. He claims that the
workers’ compensation judge erred in denying his claims for SEBs, in denying his
claims for penalties and attorney fees, and in not awarding interest on any
disability awards.
Mr. Evans first claims the workers’ compensation judge erred in failing to
award him SEBs at a zero earning capacity. We disagree. The purpose of SEBs is to compensate an injured employee for the wage-
earning capacity lost as a result of a work-related accident.” Lacaze v. Alliance
Compressors, 03-1566, p. 4 (La.App. 3 Cir. 4/14/04), 870 So.2d 1150, 1154 (citing
City of Jennings v. Dequeant, 96-943 (La.App. 3 Cir. 11/5/97), 704 So.2d 264, writ
denied, 98-610 (La. 4/24/98), 717 So.2d 1174). Initially, “[t]he injured employee
bears the burden of proving, by a preponderance of the evidence, that the injury
resulted in his or her inability to earn [90% or more of the average pre-injury wage]
under the facts and circumstances of the individual case.” Freeman v.
Poulan/Weed Eater, 93-1530, p. 7 (La. 1/14/94), 630 So.2d 733, 739. On review,
an appellate court must not re-weigh evidence or to substitute its own factual
findings just because it may have decided a case differently. Bonin v. Ferrellgas,
Inc., 03-3024 (La. 7/2/04), 877 So.2d 89. Based on the record before this court, we
cannot find error in the workers’ compensation judge’s determination that Mr.
Evans failed to meet his burden of proof.
The workers’ compensation judge did not dispute the finding of the doctors
that Mr. Evans was functionally blind in his left eye, but there was little to no
evidence as to how this affected or related to his ability to earn a living. While Mr.
Evans’ treating ophthalmologist, Dr. Patrick Redmond, was obviously concerned
that Mr. Evans could have problems operating a forklift with his monocular vision,
it is clear from the record that Mr. Evans performed his job for two months with no
problems whatsoever, prior to being terminated for sleeping on the job. Dr.
Redmond stated that he was unaware that OSHA regulations do not prohibit Mr.
Evans from operating a forklift and would allow employers to determine if limited
vision would be dangerous for any particular job. He did not prohibit his
monocular patients from driving vehicles in general, as he deferred that to the
2 Department of Motor Vehicles. Moreover, Dr. Redmond did not know that Mr.
Evans had successfully returned to his job, without incident, when he stated that he
felt Mr. Evans could not safely operate heavy machinery.
In fact, the record shows that Mr. Evans was very much capable of working
as a forklift operator at Winn Lumber after his accident, as he performed those
exact duties until he was fired for cause. Mr. Evans had previously been warned
that sleeping at work was a fireable offense but was given a second chance. While
Mr. Evans himself testified that he had some concerns for the safety of others, he
stated that he did the same work as before the injury without complaint, and with
no incidents or accidents. In fact, his immediate supervisor, Billy Stewart, stated
that he did a great job until his termination. His employer, Robert Schutte, testified
that had he not been terminated for sleeping on the job, he would still be employed
at Winn Lumber in his same position. “[A]n injured employee cannot . . .
blatantly violate company policy without the possibility of recourse by the
employer.” Palmer v. Alliance Compressors, 05-478, p. 4 (La.App. 3 Cir. 11/2/05),
917 So.2d 510, 513, writ denied, 05-2440 (La. 3/24/06), 925 So.2d 1231. The fact
that a job is no longer available to an employee solely due to his own actions
terminates his entitlement to SEBs. Id.
There is no other direct evidence in the record concerning Mr. Evans’ ability
to earn 90% of his pre-injury wages. While his prospects being reduced may be a
likely assumption based on Mr. Evans’ education difficulties and the injury, it
remains his duty as a claimant to prove reduced earning capacity in order to be
awarded SEBs. After reviewing the record, we cannot find the workers’
compensation judge was manifestly erroneous in ruling that he did not meet that
burden.
3 Mr. Evans next claims the workers’ compensation judge erred in failing to
award him penalties and attorney fees for the undisputed underpayment of
disability benefits. We agree.
Louisiana Revised Statutes 23:1201(F) imposes a penalty for “failure to
provide payment.” Penalties will not be imposed if they are “reasonably
controverted or if such nonpayment results from conditions over which the
employer or insurer had no control.” Id. The determination of whether an
employer or insurer should be cast with penalties and attorney fees is a question of
fact, subject to the manifest error or clearly wrong standard of review. Authement v.
Shappert Eng’g, 02-1631 (La. 2/25/03), 840 So.2d 1181.
A review of the record reveals that Winn Lumber and its insurer failed to
pay Mr. Evans the correct amount of disability benefits because it twice failed to
take bonuses into account when it calculated his average weekly wage. Generally,
penalties are not imposed for simple miscalculations of benefits, but penalties and
attorney fees have been imposed where the insurer gathers incomplete data in
preparing the claim. Stegall v. J. & J Exterminating, 94-1279 (La.App. 3 Cir.
3/1/95), 651 So.2d 400. Here, in calculating Mr. Evans’ average weekly wage,
Winn Lumber’s workers’ compensation insurance adjuster, Glen East, admittedly
failed to take bonuses into account. While the insurer did issue two separate
checks to make the amount correct in the end, the adjustor clearly gathered
incomplete data in preparing the claim. Winn Lumber failed to offer evidence that
the discrepancy was beyond its control or that Mr. Evans’ right to those benefits
was reasonably controverted. The workers’ compensation judge was therefore
manifestly erroneous in failing to award Mr. Evans penalties in the amount $2,000
for Winn Lumber’s failure to pay the correct amount of disability benefits.
4 However, because Winn Lumber did quickly pay when made aware of the
deficiencies with little work from counsel for Mr. Evans, we find that the attorney
fees in the amount of $1,000 for the violations is sufficient. We hereby reverse the
decision of the workers’ compensation judge as to penalties and attorney fees and
award Mr. Evans $2,000 in penalties and $1,000 in attorney fees for Winn
Lumber’s underpayment of benefits.
Finally, Mr. Evans claims that the workers’ compensation judge’s denial of
his claims for benefits resulted in the workers’ compensation judge not reaching
the issue of interest on those benefit awards sought. Because we agree with the
workers’ compensation judge that Mr. Evans has not shown he is entitled to the
SEBs sought, this issue is moot and need not be addressed.1
For the above reasons, we hereby affirm the decision of the workers’
compensation judge denying Mr. Evans’ claim for SEBs. We reverse the workers’
compensation judge’s decision denying penalties and attorney fees and render
judgment awarding Mr. Evans $2,000 in penalties and $1,000 in attorney fees for
Winn Lumber’s underpayment of benefits. Costs of this appeal are hereby
assessed against Winn Lumber.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.
1 Additionally, La.R.S. 23:1201.3 provides, in relevant part (emphasis ours): “Any compensation awarded and all payments thereof directed to be made by order of the workers’ compensation judge shall bear judicial interest from the date compensation was due until the date of satisfaction.” The 100 weeks of benefits paid by Winn Lumber was paid voluntarily and not ordered by the workers’ compensation judge, who, again, awarded Mr. Evans no benefits at all.