Judgment rendered August 9, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,231-WCA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
DONALD JENSON Plaintiff-Appellee
versus
BERRY GLOBAL GROUP, INC. Defendant-Appellant
Appealed from the Office of Workers’ Compensation, District 1-E Parish of Ouachita, Louisiana Trial Court No. 20-00922
Brenza Irving Jones Workers’ Compensation Judge
PARKER & LANDRY, LLC Counsel for Appellant By: Michael E. Parker Taylor S. Madison-Domingue
JAMES R. HERRON Counsel for Appellees, Rosie Jenson and the Estate of Donald Jenson
Before PITMAN, STONE, and ELLENDER, JJ.
ELLENDER, J., concurs in part and dissents in part with written reasons. PITMAN, C. J.,
Defendant Berry Global Group, Inc., appeals the decision of the
Office of Workers’ Compensation Judge (“WCJ”), who found that Plaintiffs
Rosie Jenson (“Rosie”) and the Estate of Donald Jenson are entitled to
judgment finding that Rosie’s now-deceased husband, Donald Jenson
(“Donald”), was involved in a work-related accident; was entitled to
payments for temporary total disability (“TTD”) benefits; did not commit
fraud so that payments were precluded; that Defendant was not entitled to
credit for benefits Donald’s medical insurance paid; and that Plaintiffs are
entitled to judgment awarding penalties and attorney fees. For the following
reasons, we affirm.
FACTS
On September 10, 2019, Donald, while operating a forklift on the job
as a senior operator for Defendant in Ouachita Parish, was injured as he
climbed down from the forklift and slipped on resin on the floor. As he fell,
he struck the back of the forklift, causing injury to his right side, back, knee
and thigh. He reported the incident and his injury to the supervisor, Damien
Smith, who completed an accident/injury notice in accordance with
company policy. Smith wrote that Donald slipped on the resin, injured the
right side of his body and his hip and that the nature of the injury was a
sprain or strain. Smith also obtained the surveillance tape of the alleged
accident and, from the tape, witnessed Donald’s slip on the resin.
Donald went to Saint Francis Occumed the day after the alleged
accident and complained of right hip pain. When asked, he denied having any prior medical history regarding this pain. St. Francis released him to
return to work without any restrictions.
Later that day, Donald followed up with his primary care physician,
Dr. Kerry Anders, and complained of right hip/leg pain. Dr. Anders
suspended him from work for a week. On September 20, 2019, Donald
returned to Dr. Anders, who referred him for an evaluation to Dr. Sidney
Bailey, an orthopedist. He remained off work during this period. The
evaluation took place on October 17, 2019, and Donald was asked again
about prior medical history. He denied ever having any medical history
related to his complaint. An MRI was conducted, and Dr. Bailey opined that
Donald suffered from degenerative disc disorder and recommended he
undergo physical therapy. His medical report indicates that among other
things wrong with his spine, there was “Bone marrow edema suggesting an
acute fracture of the right pedicle.”
On October 28, 2019, Donald was referred by Dr. Anders to
Dr. Marshall Cain at the Cain Neurosurgery Clinic. Dr. Cain’s report
indicates that Donald was still suffering back and leg pain but that he had
not done any conservative therapy, physical therapy or pain management.
Donald reported that his employer would not pay for physical therapy, and
he denied any significant past medical history. Dr. Cain’s report further
indicates that there was evidence of pedicle fracture at L5 and spondylosis
and disc disease at L3-4 and L5-S1. It stated, “At this time, he cannot work
and he is to be off work.” Dr. Cain recommended physical therapy and
believed Donald would heal with time and conservative treatment.
On February 7, 2020, Donald filed a disputed claim with the Office of
Workers’ Compensation (“OWC”) and asserted that he suffered a major
2 disability and impairment in the accident, which precluded him from
resuming his pre-accident employment as senior forklift operator. He also
asserted that Defendant acted unreasonably and in an arbitrary and
capricious manner in denying his claim for weekly workers’ compensation
benefits and medical treatment associated with the injury sustained while on
the job.
On July 2, 2020, at Defendant’s request, Donald went to Dr. Gordon
Mead for an independent medical examination (“IME”) and evaluation.
Once again, when asked, Donald denied any significant medical history
related to his injury. Dr. Mead considered Donald capable of returning to
restricted duty work activities; however, after he became aware of Donald’s
prior medical history, he changed his opinion and issued another report
finding that Donald suffered from preexisting degenerative disc disorder.
Despite this disorder, Dr. Mead opined that Donald was suffering from the
injuries sustained in the work-related accident, specifically, nerve root
impingement from lumbar disc protrusion combined with spinal stenosis.
He recommended physical therapy for a 6- to 12-week period. He stated
that if Donald did not improve, then spinal injections would be indicated, or
possibly even lumbar surgery. He stated that he did not think Donald was
capable of returning to the job described due to the limitation of repeated
bending and heavy lifting.
As a result of the alleged dispute between the doctors, Defendant
requested that the WCJ appoint a physician to conduct another IME. Donald
objected to yet another physician examining him because he had already
seen Dr. Mead, who had produced the second medical opinion on his
condition.
3 On March 8, 2021, a Zoom hearing was held on the motion to appoint
an IME, and it was revealed that Donald had been in an accident on a
4-wheeler the previous week and died from his injuries on March 4, 2021.
Therefore, the motion for the IME was declared moot. Rosie (Donald’s
wife) was substituted as plaintiff and representative of her husband’s estate.
The trial which was originally set for May 2021 was continued.
The trial was held on January 20, 2022. Smith, Donald’s supervisor,
testified and produced the video of Donald’s accident. The first time the
WCJ viewed the video, she did not even see when Donald slipped.
However, after the second viewing, she did see his foot slip and then saw
him limp away from the forklift. Smith testified that Donald always walked
with a small limp. He also stated that while he did not recall exactly, he did
not think Donald ever returned to work after the incident at the forklift.
Rosie testified and explained that Donald was born with one leg
shorter than the other and that was the reason he always walked with a limp.
She also testified that after the accident, he complained of pain in his right
side and that certain doctors suggested physical therapy, but that neither
Defendant nor Donald’s own insurer, Blue Cross Blue Shield of Louisiana,
would pay for it. She also stated that Donald had been involved in a motor
vehicle accident 10 or 12 years prior to the forklift injury and that his main
injury in that accident was to his right knee. At that time, Donald was off
work for three months recuperating.1
The attorneys introduced evidence at the hearing, including Dr. Cain’s
notes, which were introduced because he had never been deposed, and
1 In Donald’s deposition, he testified that he was off work for six months after an accident during that time period.
4 Dr. Mead’s deposition. A request for penalties, attorney fees and a list of
costs provided by Plaintiffs’ attorney was made. Defendant introduced
Dr. Anders’s records and other pertinent medical records and cross-
examinations of the physicians. The attorneys were given the opportunity to
make a closing argument, and Defendant’s attorney raised the issue of
Donald’s potential fraud in failing to tell any physician about the car
accident he had 10 to 12 years before. Defendant claimed this was relevant
because Donald had an MRI on his back at that time, yet he denied any
history of back problems prior to September 10, 2019.
The WCJ took the matter under advisement and issued an oral ruling
on March 17, 2022. In a telephonic hearing, the WCJ found that Donald had
an accident arising out of and in the course of his employment with
Defendant. She also found that Donald’s average weekly wage had been
stipulated at $1,393.48 per week. She stated that the video evidence
provided proof of the accident and that the medical evidence supported his
contention that he was in pain and unable to return to work in his capacity as
a senior forklift operator. Physical therapy had been recommended. The
medical advice given by the various doctors showed he was unable to return
to work from the date of the accident up until the date of his death.
Therefore, the WCJ found Donald was entitled to medical and TTD benefits.
The WCJ further found that although Defendant had asked to be
reimbursed for benefits paid by Donald’s health insurance company, the
record was devoid of sufficient evidence to grant the request. In regard to
the issue of fraud, she found that a three-prong test applied before a finding
of fraud could be made, i.e., there had to be a showing of a false statement or
misrepresentation, willfully made, for the purpose of obtaining workers’
5 compensation benefits. She did not find that he had made any such false
statements and stated that Defendant had failed to meet its burden of proof
of fraud under La. R.S. 23:1208.
On April 28, 2022, the judgment was rendered decreeing that Donald
was entitled to 77 weeks of TTD benefits in the amount of $52,976, to be
paid to Plaintiffs. A $2,000 penalty for failure to pay indemnity benefits on
Donald’s behalf and an additional $2,000 penalty for failure to provide
medical treatment on Donald’s behalf were assessed to Defendant, with both
amounts being payable to Plaintiffs. An attorney fee of $10,000 was
awarded to Plaintiffs’ attorney James R. Herron. All costs, including, but
not limited to, medical records charges, expert witness fees and litigation
expenses, except as provided by law, were assessed against Defendant in the
total amount of $4,980.98.
Defendant appeals the judgment of the WCJ.
DISCUSSION
The Accident
Defendant argues that the WCJ committed manifest error in finding
that Plaintiffs met their burden of proof that Donald had an accident on
September 10, 2019, as that term is defined in La. R.S. 23:1021(1). It
contends that the evidence, specifically the video footage of the alleged
accident, was inconclusive. It points out that when the WCJ viewed the
evidence, she did not even see the accident when it supposedly occurred,
because the slip of the foot was so minor that a true fall did not result. It
further contends that the fall involved was no more significant than a person
sitting in a chair. Donald did not flail his arms or fall to the ground but
simply leaned against the forklift. His limping away from the scene was
6 easily explained by the fact that he had always limped as a result of one leg
being shorter than the other. It argues that the WCJ’s decision must be
reasonable based on the evidence, and the evidence presented showed that
Donald had degenerative disc disease, had suffered from it for many years
and had been known to wear a back brace to work. For these reasons, it
further argues that Donald’s injury, if any, was more reasonably related to a
deterioration or progressive degeneration, and Plaintiffs did not meet their
burden of proof showing Donald sustained an injury as a result of a work-
related accident.
Plaintiffs argue that the video of the accident shows Donald exiting
the forklift, slipping and, obviously, dropping a short distance out of view of
the camera, then limping away. They assert that the testimony of Smith
verifies that he believed Donald suffered an injury from a work-related
accident. The physicians he saw all stated that they considered his pain was
caused by a work-related injury.
An employee is entitled to workers’ compensation benefits if he
receives personal injury by accident arising out of and in the course of his
employment. La. R.S. 23:1031(A). An employment-related accident is 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). The
claimant has the burden of establishing his disability and its causal
connection to the work-related accident by a preponderance of the evidence.
Woodard v. Brookshire Grocery Co., 54,574 (La. App. 2 Cir. 8/10/22),
345 So. 3d 439, writ denied, 22-01360 (La. 11/16/22), 349 So. 3d 1001.
7 Factual findings of a WCJ are subject to the manifest error standard of
review; therefore, in order for a reviewing court to reverse a WCJ’s factual
findings, it must find that a reasonable factual basis does not exist and the
record establishes that the factual findings are clearly wrong. Lafayette
Bone & Joint Clinic v. Louisiana United Bus. SIF, 15-2137 (La. 6/29/16),
194 So. 3d 1112. Under the manifest error rule, the reviewing court does not
decide whether the WCJ was right or wrong but only whether its findings are
reasonable. Elmuflihi v. Cent. Oil & Supply Corp., 51,673 (La. App. 2 Cir.
11/1/17), 245 So. 3d 155, writ denied, 17-2009 (La. 2/23/18), 237 So. 3d
1189. The reviewing court is not permitted to reweigh the evidence or reach
its own factual conclusions from the evidence. Id. The manifest error
standard applies even when the WCJ’s decision is based on written reports,
records or depositions. Bruno v. Harbert Int’l., Inc., 593 So. 2d 357 (La.
1992); Woodward, supra.
Based on the review of the video, the testimony presented at the
hearing and all of the written reports, records and depositions, a reasonable
factual basis exists for the WCJ’s ruling. For these reasons, this assignment
of error is without merit.
Fraud
Defendant contends that the WCJ erred in finding that Donald did not
commit fraud and thereby forfeit his right to workers’ compensation benefits
because he made false statements for the purpose of obtaining benefits or
payment when he denied ever having injured his back. It asserts that Donald
gave false statements to the treating physicians in this case and that he
consistently denied having had back problems that were related to his
degenerative back disease or a prior accident which occurred in 2008. It
8 contends that in his deposition, Donald reported he had been in an accident
10 to 12 years prior to the accident at issue in this case and that he suffered a
low-back injury, which resulted in him being placed on a no-work status for
approximately six months. It argues that the false statements made to the
physicians were not inconsequential and were made because Donald was
hoping to deceive the court into awarding him benefits.
Plaintiffs argue that Donald did not willfully make any false
statements in an effort to obtain workers’ compensation benefits. They
assert that the alleged false statements made to physicians were check marks
Donald made by the word “no” under the medical history section of the St.
Francis Occumed questionnaire. The questionnaire also asked if a doctor had
ever restricted his activities or required him to miss time at work, and
Donald wrote on the form, “Yes, back strain in car accidents.” Plaintiffs
also assert that Donald had been diagnosed with arthritis in 2007 or 2008,
and that he considered the accident 10 or 12 years prior to be
inconsequential because he had had no symptoms, pain or treatment for that
accident or that diagnosis. For these reasons, Plaintiffs argue that Donald
did not willfully deceive or make misrepresentations regarding prior injuries
in an effort to obtain benefits.
La. R.S. 23:1208(A) provides that it shall be unlawful for any person,
for the purpose of obtaining or defeating any benefit or payment under the
provisions of this Chapter, either for himself or for any other person, to
willfully make a false statement or representation. La. R.S. 23:1208
authorizes forfeiture of benefits upon proof that (1) there is a false statement
or representation; (2) it is willfully made; and (3) it is made for the purpose
of obtaining or defeating any benefit or payment. Resweber v. Haroil Const.
9 Co., 94-2708 (La. 9/5/95), 660 So. 2d 7; Griffith v. CMR Constr. & Maint.
Res., 54,443 (La. App. 2 Cir. 4/13/22), 337 So. 3d 605, writ denied, 22-
00781 (La. 9/20/22), 346 So. 3d 283. Forfeiture is a harsh remedy and must
be strictly construed. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.
1/21/98), 707 So. 2d 1214; Griffith, supra. An inadvertent and
inconsequential false statement will not result in the forfeiture of benefits.
Id. La. R.S. 23:1208 does not penalize any false statement, but only those
willfully made for the purpose of obtaining benefits. Resweber, supra;
Griffith, supra. The WCJ’s finding or denial of forfeiture will not be
disturbed on appeal absent manifest error. Id.
In regard to the issue of fraud, we find that the record supports the
WCJ’s decision and a reasonable factual basis existed to deny the fraud
claim. There were no misrepresentations made willfully and for the purpose
of obtaining benefits. We find no error in the WCJ’s conclusion that
Defendant failed to carry its burden of proof on this issue, and this
assignment of error is without merit.
Temporary Total Disability
Defendant argues that the trial court erred in finding Donald is entitled
to an award of TTD benefits. It contends that compensation for TTD
benefits shall be awarded only if the employee proves by clear and
convincing evidence, unaided by any presumption of disability, that the
employee is physically unable to engage in any employment or self-
employment. It asserts Donald was not temporarily, totally disabled because
there was no causal connection between his insignificant event with the
forklift and his disability. It blames Donald’s advanced degenerative disc
disease for his injury and claims that it existed long before September 10,
10 2019. It asserts that the medical evidence presented at trial indicates that the
disease caused the injury and not the slip from the forklift.
Plaintiffs argue that they met their burden of proof that Donald had a
compensable accident at work and that the injury warranted the award of
TTD benefits to Donald’s estate. They also argue the injury that resulted
from the slip-and-fall on the forklift included an acute fracture of the right
pedicle, as diagnosed by Dr. Anders. Dr. Anders’s deposition testimony was
that Donald was injured in the work-related accident at the lower lumbar
sacral area, specifically the pedicle fracture, which was a new fracture never
seen prior to the MRI. He stated it was “more probable than not” that the
recent fall caused the pedicle fracture. Several of the physicians
recommended that Donald not return to work.
La. R.S. 23:1221(1)(C) states:
For purposes of Subparagraph (1)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (1)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self- employment.
To prove a matter by clear and convincing evidence, as required to
establish entitlement to TTD benefits, means to demonstrate that the
existence of a disputed fact is highly probable, i.e., much more probable than
its nonexistence. Taylor v. Hollywood Casino, 41,196 (La. App. 2 Cir.
6/28/06), 935 So. 2d 293.
11 Whether a claimant has carried his burden of proof and whether
testimony is credible are questions of fact to be determined by the WCJ.
Lewis v. Chateau D’Arbonne Nurse Care Ctr., 38,394 (La. App. 2 Cir.
4/7/04), 870 So. 2d 515. Factual findings in a workers’ compensation case
are subject to the manifest error or clearly wrong standard of appellate
review. Lafayette Bone & Joint Clinic v. Louisiana United Bus. SIF, supra.
The clear and convincing evidence shows that Donald suffered a
work-related injury to his lower back that resulted in his inability to return to
work as a senior forklift operator. Despite the fact that Donald was
previously diagnosed with arthritis, the evidence of the MRI and its
interpretation by his physicians showed the pedicle fracture that had not
previously been identified before the accident at issue. For these reasons,
we find Plaintiffs are entitled to the award of TTD benefits and this
Credit for Health Insurance Payments
Defendant argues that the WCJ erred in finding that it was not entitled
to a credit for benefits paid by Donald’s health insurance company. It
claims it pled an offset in its answer to the disputed claim for compensation
and submitted evidence showing that payments of a certain amount of
Donald’s expenses were made by his health insurer, Blue Cross Blue Shield
12 of Louisiana.2 It claims it attached medical bills from several of the doctors
and stated that it was entitled to a credit.3
Plaintiffs argue in order for Defendant to obtain a credit for medical
payments made, it had to prove that it contributed to the payment of
Donald’s health insurance premiums and the percentage of the premiums
that it paid. It must also prove that payment of a certain amount of Donald’s
medical expenses was made by a person other than Donald or a relative or
friend of Donald.
La. R.S. 23:1212(A) states:
Except as provided in Subsection B, payment by any person or entity, other than a direct payment by the employee, a relative or friend of the employee, or by Medicaid or other state medical assistance programs of medical expenses that are owed under this Chapter, shall extinguish the claim against the employer or insurer for those medical expenses. This Section shall not be regarded as a violation of R.S. 23:1163. If the employee or the employee’s spouse actually pays premiums for health insurance, either as direct payments or as itemized deductions from their salaries, then this offset will only apply in the same percentage, if any, that the employer of the employee or the employer of his spouse paid the health insurance premiums.
2 Defendant’s answer, paragraph 11, states as follows:
Pleading in the alternative if such be necessary, BERRY GLOBAL GROUP, INC. claim that in the event it is determined that DONALD JENSON is entitled to the payment of compensation benefits and/or medical expenses or other expenses pursuant to Louisiana’s Workers’ Compensation Act then, and in that event, Defendants are entitled to a credit or offset, whichever is applicable, pursuant to LSA-R.S. 23:1225, LSA-R.S.23:1212 and/or LSA-R.S. 23:1206 and for any unemployment benefits he received.
Paragraph 12 states:
In further answer, BERRY GLOBAL GROUP, INC., specifically avers that it is entitled to a credit for all prior payment of worker’s compensation benefits and medical benefits paid by it and/or any other entity. 3 The WCJ found that the record lacked sufficient evidence to prove Defendant’s claim for these credits.
13 In a workers’ compensation action, a claimant proves entitlement to
reimbursement for incurred medical expenses by proving the amount of the
expenses and that they were reasonably necessary for treatment of a medical
condition caused by the work injury. Spires v. Raymond Westbrook
Logging, 43,690 (La. App. 2 Cir. 10/22/08), 997 So. 2d 175, writ denied,
08-2771 (La. 2/20/09), 1 So. 3d 495. Following that, the burden shifts to the
employer or his insurer to establish a defense to payment of the incurred
medical expenses. Id. Under La. R.S. 23:1212, the employer may meet this
burden by proving that the expenses were already paid by someone other
than the employee, a relative or friend. Id. The employer must judicially
assert his right to a credit and present evidence to support his entitlement.
Id.
In Smith v. Roy O. Martin Lumber Co., 03-1441 (La. App. 3 Cir.
4/14/04), 871 So. 2d 661, writ denied, 04-1311 (La. 9/24/04), 882 So. 2d
1144, the defendant contended it was entitled to a credit under La.
R.S. 23:1212 for benefits which were expended under their Employee
Benefit Trust. The WCJ refused to award a credit because there was no
evidence put forth concerning the percentage funded by the defendant. The
Smith court cited Taylor v. Columbian Chemicals, 32,411 (La. App. 2 Cir.
10/27/99), 744 So. 2d 704, stating that the employer or insurer seeking an
offset under La. R.S. 23:1212 must prove the entitlement to and the amount
of any credit. Failure to introduce this evidence is fatal to the offset. Taylor,
supra.
In the case at bar, Defendant pled entitlement to the offset or credit
pursuant to La. R.S. 23:1212 and provided copies of statements indicating
that Donald’s insurer, Blue Cross Blue Shield of Louisiana, paid for medical
14 services rendered after the accident. It did not provide the court with any
evidence related to its payment of any premiums on Donald’s behalf, or even
proof of payment of a portion of the premium. It is unclear who paid the
premiums for Donald’s insurance; and, as the WCJ stated, the record is
devoid of sufficient evidence to prove Defendant’s claim to these credits.
This assignment of error is without merit.
Penalties and Attorney Fees
Defendant argues that the trial court erred in awarding penalties and
attorney fees in favor of Donald’s estate. It contends that the Workers’
Compensation Act negates an assessment of penalties and attorney fees if
the claim is “reasonably controverted” or if nonpayment results from
conditions over which the employer or insured has no control. It claims the
WCJ granted penalties and attorney fees not because she found Defendant’s
actions unreasonable but, instead, simply because Donald was not paid
benefits. It asserts it did not pay because there was an absence of proof an
accident occurred after a review of the surveillance video; thus, it was
reasonable for it to deny Donald’s claim. It argues that there could be no
finding that its actions were arbitrary and capricious; therefore, the awards
of penalties and attorney fees were in error.
Plaintiffs cite La. R.S. 23:1310.9, which provides that the WCJ “shall
assess the total cost of the proceedings to the party who has brought them or
the party who has unreasonably denied payment of benefits.” They then cite
La. R.S. 23:1201(F), which discusses penalty and attorney fee assessments
for failure to pay compensation or medical benefits. They assert that
Defendant unreasonably denied payment of benefits from the date of
15 Donald’s injury through the date of his death; and, thus, the assessment of
penalties and attorney fees is warranted.
La. R.S. 23:1201(F) states in pertinent part as follows:
Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; . . .
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault [.]
(2) This Subsection 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.
The award of penalties and attorney fees in workers’ compensation
cases is essentially penal in nature and is intended to deter indifference and
undesirable conduct by employers and insurers toward injured employees.
Tingle v. Page Boiler, Inc., 50,373 (La. App. 2 Cir. 1/13/16), 186 So. 3d
220. Penal provisions are strictly construed. Id. The WCJ’s grant or denial
of penalties and attorney fees under the workers’ compensation statute is
subject to manifest error review. Id.
The WCJ has great discretion in awarding or denying penalties
and attorney fees. Thomason v. Wal-Mart Stores, Inc., 37,520 (La.
App. 2 Cir. 9/4/03), 852 So. 2d 1283, writ denied, 03-2774 (La.
12/19/03), 861 So. 2d 573. The WCJ’s decision concerning whether
to assess statutory penalties and attorney fees will not be disturbed
16 absent an abuse of discretion. Lewis v. Chateau D’Arbonne Nurse
Care Center, supra. The provisions of La. R.S. 23:1201(F) permit for
multiple penalties for multiple violations of compensation and
medical benefits. Fontenot v. Reddell Vidrine Water Dist., 02-0439
(La. 1/14/03), 836 So. 2d 14.
To find that the employer or insurer reasonably controverted a
claim, the WCJ must find that the payer engaged in a nonfrivolous
legal dispute or possessed factual and/or medical information to
reasonably counter the factual and medical information presented by
the claimant throughout the time he refused to pay all or part of the
benefits allegedly owed. Brown v. Texas-LA Cartage Inc., 98-1063
(La.12/1/98), 721 So. 2d 885; Morris v. Rent-A-Ctr. Inc., 43,191 (La.
App. 2 Cir. 4/30/08), 981 So. 2d 257.
That an employer is subjectively motivated to avoid paying workers’
compensation benefits or that an employer loses a disputed claim is not
determinative in the decision whether to impose penalties and attorney fees.
Williams v. Rush Masonry, Inc., 98-2271 (La. 6/29/99), 737 So. 2d 41. For
purposes of imposition of attorney fees for discontinuance of workers’
compensation benefits, “arbitrary and capricious behavior” consists of
willful and unreasonable action, without consideration and regard for the
facts and circumstances presented, or of seemingly unfounded motivation.
Id. Whether a refusal to pay is arbitrary, capricious, or without probable
cause depends primarily on the facts known to the employer or insurer at the
time of its action. Id. The crucial inquiry is whether the employer had
articulable and objective reasons for denying or discontinuing the benefits at
the time it took that action. Id.
17 While Defendant’s argument is that the WCJ awarded penalties and
attorney fees without making a finding that it was unreasonable in its failure
to pay, the written judgment states that the penalties and attorney fees were
assessed “for failure to pay indemnity benefits on behalf of Claimant.” In
the telephonic hearing held for the WCJ to give oral reasons for judgment,
she stated that Defendant acted arbitrarily and capriciously in its denial of
workers’ compensation benefits to and on behalf of Donald. It was for that
reason she imposed the penalties of $2,000 for its failure to pay indemnity
benefits and $2,000 for failure to provide medical treatment and an attorney
fee award of $10,000.
This court reviews judgments, not reasons for judgment, and it is
clear, pursuant to the statute, that the WCJ awarded the penalties and
attorney fees because she believed Defendant’s failure to pay was
unreasonable given the amount of evidence available from the physicians,
who stated there was an injury that occurred as a result of the work-related
accident. Donald’s injury was severe enough that he did not return to work,
and he continued to seek medical treatment, even though Defendant was not
offering to support him during this time. The WCJ considered Defendant’s
action denying benefits to be unreasonable in light of the medical evidence
submitted by Plaintiffs. Medical evidence being generated from the day of
the accident indicated that Donald was actually injured.
Applying the manifest error standard of review, we find no error in
the award of penalties and attorney fees by the WCJ; and this assignment of
error is without merit.
18 CONCLUSION
For the foregoing reasons, the judgment of the Office of Workers’
Compensation Judge in favor of Plaintiffs Rosie Jenson and the Estate of
Donald Jenson is affirmed. Costs of this appeal are assessed to Defendant
Berry Global Group, Inc.
AFFIRMED.
19 ELLENDER, J., concurs in part and dissents in part.
I respectfully concur in part and dissent in part. I agree with the
majority’s assessment that Jenson proved, by a preponderance of the
evidence, he sustained an accident arising out of and in the course of his
employment, as required by La. R.S. 23:1031 (A). Although the incident, as
captured on the surveillance video, is minor to the point of being nearly
imperceptible, the WCJ could reasonably find that a slip and fall occurred on
the resin-coated floor.
I also agree with the majority’s holding that Berry Global did not
prove a false statement was made willfully and for the purpose of obtaining
any benefit or payment, as required by La. R.S. 23:1208 (A). The WCJ was
entitled to find Jenson’s failure to disclose an auto accident and a diagnosis
of arthritis, events from a decade before the work-related accident, did not
rise to the level of falseness and willfulness that would warrant forfeiture.
Further, I agree with the majority’s conclusion that Jenson proved, by
clear and convincing evidence, the accident caused an inability to engage in
any employment or self-employment, as required by La. R.S. 23:1221 (1)(c).
In light of the conflicting medical opinions, the WCJ was not plainly wrong
to accept the view of Drs. Anders and Bailey, who treated Jenson as a
patient, and Dr. Cain, who also found an injury and disability, over that of
Dr. Mead, who examined him once for purposes of litigation.
Finally, I agree with the majority’s treatment of the claim of credit for
health insurance payments. Despite the firm evidence of how much Blue
Cross paid to Drs. Anders, Bailey, and Cain, the statute limits the offset to
“the same percentage, if any, that the employer * * * paid the health
insurance premiums[,]” and the burden is on the employer to prove the 1 percentage. Taylor v. Columbian Chemicals., 32,411 (La. App. 2 Cir.
10/27/99), 744 So. 2d 704. The record does not show that Berry Global
offered any evidence in this respect.
However, I respectfully do not agree with the majority’s treatment of
penalties and attorney fees. Regrettably, the WCJ confused the issue by
stating on the record that if “portions” of the medical record showed Jenson
was unable to work, then “it’s very likely that I will award penalties and
attorney fees.” This completely jettisons the element of R.S. 23:1201 (F) that
disallows a penalty if the employer “reasonably controverted” the claim.
The majority discusses the “arbitrary and capricious” standard that applies
when benefits have been unjustly terminated, under R.S. 23:1201 (I) and
Williams v. Rush Masonry Inc., 98-2271 (La. 6/29/99), 737 So. 2d 41, but
there was no termination of benefits in this case. What this record does
show is a very minor workplace incident, some evidence of Jenson’s failure
to disclose prior injuries, and a medical opinion that his current condition
predated the accident. In my view, this satisfies any normal standard of
reasonably controverting a claim and the WCJ was manifestly erroneous in
not reaching this conclusion. Berry Global’s handling of this claim does not
rise to the level of indifferent or undesirable conduct that would warrant the
imposition of any penalty or attorney fee. Salter v. DeSoto Parish Police
Jury, 54,982 (La. App. 2 Cir. 5/17/23), __ So. 3d __; Harper v.
Weyerhaeuser Co., 54,789 (La. App. 2 Cir. 11/16/22), 351 So. 3d 859.
For these reasons, I would affirm most of the judgment, but reverse
the imposition of penalties and attorney fees.