Dupard v. MMR Constructors, Inc.

182 So. 3d 144, 2015 La.App. 1 Cir. 0019, 2015 La. App. LEXIS 1743, 2015 WL 5474866
CourtLouisiana Court of Appeal
DecidedSeptember 18, 2015
DocketNo. 2015 CA 0019
StatusPublished

This text of 182 So. 3d 144 (Dupard v. MMR Constructors, Inc.) 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
Dupard v. MMR Constructors, Inc., 182 So. 3d 144, 2015 La.App. 1 Cir. 0019, 2015 La. App. LEXIS 1743, 2015 WL 5474866 (La. Ct. App. 2015).

Opinion

McClendon, j.

| ¾An employer seeks review of an Office of Workers’ Compensation ruling that awarded its employee twenty-five weeks of compensation benefits for a scar on her right knee, as well as statutory penalties and attorney’s fees. For the following reasons, we amend the ruling to reduce the award from twenty-five weeks of compensation benefits to ten weeks of compensation benefits and .reverse the award of statutory penalties and attorney's fees.

FACTS AND PROCEDURAL HISTORY

On November 20, 2013, Ta’Shanta Du-pard, an employee of MMR Construction, [146]*146Inc., was involved in a work-related accident when she was struck on her right knee by a four pound hammer that fell from above.1 Ms. Dupard was taken to Prime Occupational Medicine Clinic, where she was evaluated and diagnosed with a knee contusion and a laceration, which later developed into a permanent scar.

On February 14, 2014, Ms. Dupard filed a disputed claim for compensation, contending that a “[h]ammer fell onto [her] right knee causing pain and injury” and naming MMR as a defendant. On August 25, 2014, Ms. Dupard filed a supplemental claim, asserting that she was entitled to benefits due to “a seriously and permanently disfiguring scar on her right knee.”

Trial of this matter was held on September 23, 2014. At trial, the parties stipulated that the scar on Ms. Dupard’s knee is permanent. The parties also stipulated that at the time of the incident, Ms. Du-pard’s average weekly wage was $1,058.62, yielding a maximum compensation rate of $619.00, and that MMR tendered $3,025.00 (or approximately 5 weeks of indemnity benefits) to Ms. Dupard on September 16, 2014. As such, the only issues before the Office of Workers’ Compensation (OWC) were: (1) whether the scar was “serious” within the meaning of LSA-R.S. 23:1221, and thus compensable; (2) if so, the amount of | sbenefits due; and (3) whether Ms. Dupard was entitled to penalties and attorneys’ fees.

At trial, a photograph of the scarring along with medical records from Ms. Du-pard’s treating physician were admitted into evidence. Additionally, the OWC judge was able to view Ms. Dupard’s scarring.

Following trial, the OWC, in open court, ruled that Ms. Dupard was entitled to permanent partial disability benefits for her scarring claim and awarded her twenty-five weeks- of compensation benefits. The OWC also awarded $2,000.00 in penalties and $2,500.00 in attorney fees. On October 6, 2014, the OWC signed a written judgment reflecting its oral rulings.

MMR has appealed, assigning the following as error:

1. The [OWC] committed reversible error by ruling that Claimant’s scar on her knee, which was approximately one inch in length, was sufficiently serious and materially disfiguring so as to be compensable under La. R.S. 23:1221.
2. The [OWC] committed reversible error by ruling that Claimant’s scar on her knee, which was approximately one inch in length, merited an award of 25 weeks of compensation benefits.
3. The [OWC] committed reversible error by awarding penalties and attorney’s fees as there was no medical evidence establishing that the spar was permanent and the issue of compensability was reasonably controverted.
4. The [OWC] committed reversible error in awarding a maximum penalty of $2,000 considering that a good faith tender was made 36 days after MMR was first put on notice that Claimant was seeking PPD benefits in relation to the scar on her knee and only 43 days had passed between the date that MMR was first put on notice and the trial date.

Ms. Dupard has answered the appeal, seeking additional attorney’s fees for work performed on this appeal.

DISCUSSION

The Louisiana Workers’ Compensation Act allows recovery for employees who [147]*147sustain a permanent partial disability ■ in the course and scope of their employment, and provides a schedule of specific benefits (defined in terms of number of weeks of compensation) for the loss of use or amputation of specific body parts. See LSA-R.S. 23:1224(4)(a)-(o). Other permanent partial disabilities |4not - falling within that statutory schedule are covered by a more general provision, which provides, as follows:

In cases not falling within'any of the provisions already made, where the employee is seriously and permanently disfigured or suffers a permanent hearing loss solely due to a single trau-iriatic accident, or where the usefulness of the physical function of the respiratory system, gastrointestinal system, or genito-urinary system, as contained within the thoracic or abdominal cavities, is seriously and permanently impaired, compensation not to exceed sixty-six and two-thirds percent of wages for a period not to exceed one hundred weeks may be awarded. In cases where compensation is so awarded, when the disability is susceptible to percentage determination, compensation shall be established in the proportions set forth in Subparagraph (o) of this Paragraph. In cases where compensation is so awarded, when the disability is not susceptible to percentage determination, compensation ⅞⅛ is reasonable shall be established in proportion to the compensation here-inabove specifically provided in the cases of specific disability.

LSA-R.S. 23:1221(4)(p)(Emphasis added.)

Therefore, in order to be a compen-sable permanent partial disability, a scar must render the employee “seriously and permanently disfigured.” The parties do not dispute that the scar is permanent. Rather, MMR asserts that the scar was not sufficiently serious so as to be compen-sable under LSA-R.S. 23:1221(4)(p).

We note that the Louisiana Workers’ Compénsation Act does not define the term “disfigurement.” See Broadway v. Cade Wood, Inc., 583 So.2d 153, 154 (La.App. 3Cir.1991), writ denied, 588 So.2d 106 (La.1991). Although the Act does not define disfigurement, our colleagues on the third circuit have defined disfigurement as “that which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner[.]” Broadway, 583 So.2d at 154 (quoting Superior Mining Co. v. Industrial Cmm’n, 309 Ill. 339, 141 N.E. 165 (Ill.1923)). A serious disfigurement is a disfigurement “of such a character that it substantially detracts from the appearance of the person ..disfigured!.]” Broadway, 583 So.2d at 154-55 (quoting Dombrowski v. Fafnir Bearing Co., 148 Conn. 87, 167 A.2d 458 (Conn.Sup.Ct.Err.1961)).

The OWC is afforded great discretion in determining whether a scar is seriously and permanently disfiguring. See Creel v. Concordia Electric Co-op, 95-1914 (La.App. 3 Cir. 1/31/96), 670 So.2d 406, 412, writ denied, 96-0577 (La.4/19/96), 671 So.2d-923. Although-a photograph of ■the scar is included in the record on appeal,2 the OWC, in making its ruling, indicated that “based upon the Court’s viewing of the keloid scar at trial -which appears worse in a courtroom viewing than the [148]*148photo in evidence_■ claimant sustained a scar that is a serious and permanent disfigurement.” Given the discretion afforded the OWC and its firsthand view of Ms.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Creel v. Concordia Elec. Co-Op., Inc.
670 So. 2d 406 (Louisiana Court of Appeal, 1996)
Dombrowski v. Fafnir Bearing Co.
167 A.2d 458 (Supreme Court of Connecticut, 1961)
Superior Mining Co. v. Industrial Commission
141 N.E. 165 (Illinois Supreme Court, 1923)
Brooks v. Avondale Shipyards, Inc.
553 So. 2d 960 (Louisiana Court of Appeal, 1989)
Broadway v. Cade Wood, Inc.
583 So. 2d 153 (Louisiana Court of Appeal, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
182 So. 3d 144, 2015 La.App. 1 Cir. 0019, 2015 La. App. LEXIS 1743, 2015 WL 5474866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dupard-v-mmr-constructors-inc-lactapp-2015.