Dunning v. Dapco Ventures, LLC

834 So. 2d 448, 2001 La.App. 1 Cir. 2366, 2002 La. App. LEXIS 3455, 2002 WL 31664754
CourtLouisiana Court of Appeal
DecidedNovember 8, 2002
Docket2001 CA 2366
StatusPublished
Cited by3 cases

This text of 834 So. 2d 448 (Dunning v. Dapco Ventures, LLC) 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
Dunning v. Dapco Ventures, LLC, 834 So. 2d 448, 2001 La.App. 1 Cir. 2366, 2002 La. App. LEXIS 3455, 2002 WL 31664754 (La. Ct. App. 2002).

Opinion

834 So.2d 448 (2002)

Jonathan DUNNING
v.
DAPCO VENTURES, L.L.C.

No. 2001 CA 2366.

Court of Appeal of Louisiana, First Circuit.

November 8, 2002.
Rehearing Denied December 19, 2002.

*450 Wayne H. Carlton, Jr., New Orleans, for Plaintiff-Appellee Jonathan Dunning.

Stephen W. Brooks, Jr., William G. Tabb, III, Covington, for Defendant-Appellant Dapco Ventures, L.L.C.

Before: PARRO, JAMES[1] and PATTERSON,[2] JJ.

JAMES, Judge Pro Tempore.

Defendant, Dapco Ventures, L.L.C. (Dapco), appeals a judgment signed by a workers' compensation judge (WCJ)[3] on *451 June 21, 2001, awarding claimant, Jonathan Dunning, medical benefits and weekly compensation benefits based on an average weekly wage of $500.00 and dismissing defendant's claims pursuant to La. R.S. 23:1208 and defendant's third party petition. For the following reasons, we now affirm.

FACTUAL AND PROCEDURAL HISTORY

This workers' compensation claim arises out of injuries allegedly sustained by Jonathan Dunning while he was working as an independent contractor for Dapco. Dunning had been hired to perform certain painting work at the Fountainbleu State Park in Mandeville, Louisiana. Dunning had previously worked as an employee for Dapco and other related companies, but for this particular job he was hired as an independent contractor. He used the name Gulf South Painting in contracting for the job with Dapco, although no formal business entity was ever formed and Gulf South Painting never had any bank accounts. The contract Dunning had with Dapco required that he procure a workers' compensation insurance policy to cover the employees he hired to help him complete the work.

On the second day on the job, which was either July 11 or 12 of 2000, Dunning claims that he was injured when he fell about five feet from a scaffold and landed on his left shoulder and neck. One of Dunning's employees, Tony Abbey, testified in his deposition that he was present at the time and witnessed the accident. Although Dunning advised one of the owners of Dapco, David Luparello, of the accident, he did not make an accident report, and he did not seek immediate medical treatment. He testified that he wanted to complete the job, as it was his first job as an independent contractor for Dapco, and he thought the pain in his neck and shoulder was not serious and would go away with time. Therefore, he continued to work, although he claims he was unable to perform most of the painting work that he had been able to perform prior to the accident. As a result, he testified he had to hire additional workers to help with the labor.

As the job progressed, Dunning claims he continued to have problems with his neck and shoulder. According to Tony Abbey and the two other painters hired by Dunning, Wayne Darmas and Sidney Darmas, Dunning complained about his neck and shoulder and was unable to perform much hard labor during the course of the job, and they mainly saw him performing less strenuous tasks that did not require heavy lifting or reaching overhead. However, Eric Folse, one of the owners of Dapco who visited the job site for about one or two hours each day, testified that Dunning continued to work hard even after his alleged injury and that he witnessed Dunning performing strenuous tasks, such as unloading the truck, carrying heavy objects, and painting.

On August 25, 2000, after a verbal disagreement allegedly took place between Dunning, his girlfriend, and some of the park rangers at Fountainbleu, Dunning was advised that his services were no longer needed. Thereafter, on August 27, 2000, about six weeks after his alleged accident, Dunning sought medical treatment at the Northshore Regional Medical Center emergency room, where he was given pain medication and advised to seek orthopedic treatment. He then went to Lallie Kemp Hospital on September 15, 2000, and the doctors there recommended an MRI.

On October 31, 2000, Dunning was examined by an orthopedic surgeon, Dr. Robert Ruel, who was of the opinion that *452 Dunning had a cervical disc herniation and tendonitis about the left shoulder. Dr. Ruel also found evidence of radicular pain and diminished to absent left biceps reflex. He recommended an immediate EMG and nerve conduction study of the left arm, an immediate MRI of the cervical spine, and an MRI of the left shoulder.

At the request of Dapco, Dunning was examined by Dr. Gordon Nutik on December 27, 2000. Dr. Nutik performed x-rays and concluded that Dunning may have sustained soft tissue injuries, such as muscle strains to the neck and left shoulder. He also thought there was the possibility of a cervical disc herniation, and he recommended EMG studies of the upper extremities, an MRI of the cervical spine, and an MRI of the left shoulder.

The MRI was performed on February 1, 2001, and the EMG was performed on March 6, 2001. These tests revealed a cervical disc herniation and a rotator cuff tear in the shoulder. Dr. Ruel then recommended physical therapy, followed by surgery if necessary, and Dr. Nutik initially concurred in the recommendation of surgery. However, after reviewing additional evidence, specifically medical records showing that Dunning had been involved in an accident in 1991 which he had failed to mention, and also a videotape of Dunning taken by a private investigator, Dr. Nutik changed his opinion and determined that surgery was not necessary. He also stated that he had "difficulty in relating causation of the findings on the diagnostic test of the neck as well as the left shoulder specifically to the work related injury that the patient states occurred on July 11, 2000."

After a trial on the merits was held on April 26, 2001, the WCJ found that a work related accident had in fact occurred and that Dunning had been injured in the accident and was temporarily totally disabled and entitled to medical benefits and weekly compensation benefits in the amount of $333.33, based upon an average weekly wage of $500.00. The WCJ ordered Dapco to pay the past due weekly benefits which had accrued from July 12, 2000, to April 26, 2001, with a credit for all periods of time Dunning had worked for other employers subsequent to July 12, 2000. The WCJ also awarded future weekly compensation benefits, as he found Dunning to be temporarily totally disabled. He further awarded past due medical expenses and ordered Dapco to authorize all necessary future medical treatment. Dapco's third party petition and its claims under La. R.S. 23:1208 were dismissed. Dapco now appeals.

LAW AND ANALYSIS

Dapco argues that the WCJ erred in concluding that Dunning had been involved in a work related accident, that his neck and shoulder injuries were caused by the accident, and that he was temporarily totally disabled as a result of the accident. Dapco also contends that the WCJ erred in dismissing its claims, pursuant to La. R.S. 23:1208, because Dunning had made misrepresentations and forfeited his right to workers' compensation benefits. To support these contentions, Dapco points out that Dunning did not seek medical attention at the time of the alleged accident and did not request or prepare a written accident report. Furthermore, Dapco notes the existence of conflicting testimony concerning the amount of manual labor Dunning was able to perform after the accident and concerning the exact time that Dunning hired the additional employees to help him complete the job.

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834 So. 2d 448, 2001 La.App. 1 Cir. 2366, 2002 La. App. LEXIS 3455, 2002 WL 31664754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunning-v-dapco-ventures-llc-lactapp-2002.