Day v. Superior Derrick Services

80 So. 3d 654, 11 La.App. 3 Cir. 749, 2011 La. App. LEXIS 1468, 2011 WL 6058052
CourtLouisiana Court of Appeal
DecidedDecember 7, 2011
DocketNo. 11-749
StatusPublished
Cited by3 cases

This text of 80 So. 3d 654 (Day v. Superior Derrick Services) 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
Day v. Superior Derrick Services, 80 So. 3d 654, 11 La.App. 3 Cir. 749, 2011 La. App. LEXIS 1468, 2011 WL 6058052 (La. Ct. App. 2011).

Opinion

AMY, Judge.

| j Alleging that he had injured his neck and shoulder in a work-related accident, the claimant sought workers’ compensation benefits from the defendant, his former employer. After a hearing, the workers’ compensation judge found in favor of the claimant and awarded medical and indemnity benefits, penalties, costs, and attorney fees. The defendant appeals, asserting that the workers’ compensation judge erred in finding that the claimant’s injuries were related to his employment accident. The claimant has answered the appeal, seeking additional attorney fees, penalties, and interest. For the following reasons, we affirm the judgment of the workers’ compensation judge; grant, in part, and deny, in part, the claimants’ request for additional penalties; grant the claimant’s request for judicial interest; and award additional attorney fees for work done on appeal.

Factual and Procedural Background

The record indicates that the claimant, George Day, was employed as a fitter-welder by the defendant, Superior Derrick Services. Mr. Day alleges that he was carrying heavy oak boards up to a derrick platform when he felt a sharp pain in his neck and a “pop” in his neck and shoulder. According to Mr. Day, his neck and shoulder began to hurt, but he continued working for several days until the pain became unbearable. At Superior Derrick’s direction, Mr. Day went to a medical clinic. Mr. Day alleges that, after several visits to the clinic, the staff told him that he needed to see a neurosurgeon, but that Superior Derrick refused to pay for it. Mr. Day testified that, because of Superior Derrick’s refusal, he told the doctor he was not in any pain so he could go back to work. The record indicates that Mr. Day was arrested later that night and incarcerated for five months, which effectively ended his employment at Superior Derrick.

12Approximately one year later, an MRI revealed degenerative disc disease in Mr. Day’s cervical spine. The MRI also indicated moderate amounts of central canal stenosis, or narrowing of the spinal canal, and some spinal cord compression. Mr. Day subsequently filed a disputed claim for compensation, seeking indemnity and medical benefits, penalties, and attorney fees. The record indicates that Mr. Day eventually had surgery on his right shoulder, but that Superior Derrick’s insurer refused to pay for surgery on Mr. Day’s neck. In 2009, before the matter went to trial, the record indicates that Mr. Day awoke to find himself unable to stand. Mr. Day was admitted to the hospital, diagnosed with “incomplete” quadriparesis, and an anterior discectomy was performed.

[658]*658After a hearing, the workers’ compensation judge found that Mr. Day was injured in the course and scope of his employment on July 22, 2005. The workers’ compensation judge awarded Mr. Day temporary total disability benefits from the date of his shoulder surgery, subject to a credit for all amounts earned, medical benefits, and penalties in the amount of $2,000.00 for failure to authorize medical treatment. Additionally, the workers’ compensation judge awarded $8,000.00 in attorney fees, based on the defendant’s failure to reasonably controvert Mr. Day’s claim, $1,500.00 to Mr. Day’s former attorney, and costs.

Superior Derrick appeals, asserting that “[t]he trial court judge erred by awarding indemnity benefits to APPELLEE after finding that Claimant’s disability was causally related to the employment accident.” Mr. Day has answered the appeal, seeking additional attorney’s fees for work done on appeal, an increase in penalties, and legal interest.

Discussion

Fhidings of Fact

In its sole assignment of error, the defendant contends that the workers’ | ..compensation judge erred in finding that Mr. Day’s cervical problems were a result of his employment accident.

In workers’ compensation cases, findings of fact are reviewed under the manifest error or clearly wrong standard of review. Burkett v. LFI Fort Pierce, Inc., 10-1478 (La.App. 3 Cir. 5/4/11), 63 So.3d 365, writ denied, 11-1129 (La.9/16/11), 69 So.3d 1148. Thus, the appellate court must determine whether the factfinder’s conclusion was a reasonable one, not whether it was right or wrong. Id. Further, the factfinder’s choice between two permissible views of the evidence can never be manifestly erroneous or clearly wrong. Id. Even if the appellate court is convinced that it would have weighed the evidence differently if sitting as the trier of fact, the appellate court may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety. Id.

In Ardoin v. Firestone Polymers, LLC, 10-245, p. 5 (La.1/19/11), 56 So.3d 215, 218-19, the supreme court discussed the burden of proof for workers’ compensation cases where the alleged accident is unwit-nessed, stating:

As in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident. Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). An employee may prove by his or her testimony alone that an unwit-nessed accident occurred in the course and scope of employment if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged accident. Bruno v. Harbert International, Inc., [593 So.2d 357 (La.1992) ] (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Civil Law Treatise, Workers’ Compensation, Section 253 (2d Ed.1980)). As we noted in Bruno, corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id. (citing West, Nelson, and Malone and Johnson).

When making a determination as to whether the claimant has discharged his or her burden of proof, the workers’ compensation judge should accept as true a |4witness’s uncontradicted testimony, even where a witness is a party, absent circum[659]*659stances casting suspicion on the reliability of his or her testimony. Lopez v. Town of Zwolle, 07-76 (La.App. 3 Cir. 7/5/07), 963 So.2d 1041. Further, the workers’ compensation judge’s findings regarding whether the claimant’s testimony is credible and whether the claimant has met his or her burden of proof are factual determinations subject to the clearly wrong — manifest error standard of review. Id.

As this alleged accident is unwit-nessed, we must decide whether Mr. Day’s testimony is corroborated by the circumstances and whether “serious doubt” exists regarding his account of what occurred. See Butterfield v. Turner Indus., 06-1098 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, writ denied, 07-507 (La.4/27/07), 955 So.2d 692. In this case, Mr. Day alleged that on July 22, 2005, he injured his neck and back while carrying heavy boards up a flight of stairs. Mr. Day also testified that he informed his immediate supervisor that he might have pulled something, but that he thought he could keep working. According to Mr. Day, he worked for several more days before he sought medical attention.

At Superior Derrick’s direction, Mr. Day went to the Occupational Medical Clinic of New Iberia on July 28, 2005. Mr.

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Bluebook (online)
80 So. 3d 654, 11 La.App. 3 Cir. 749, 2011 La. App. LEXIS 1468, 2011 WL 6058052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-superior-derrick-services-lactapp-2011.