STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-118
ECCLESIASTES VEAZIE
VERSUS
GILCHRIST CONSTRUCTION COMPANY
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - DISTRICT 3 PARISH OF CALCASIEU, NO. 02-06391 SAM LOWERY, WORKERS’ COMPENSATION JUDGE
OSWALD A. DECUIR JUDGE
Court composed of John D. Saunders, Oswald A. Decuir, and Glenn B. Gremillion, Judges.
AFFIRMED AS AMENDED.
Michael B. Miller Attorney at Law P. O. Drawer 1630 Crowley, LA 70527-1630 (337) 785-9500 Counsel for Plaintiff/Appellant: Ecclesiastes Veazie
Deanne B. McCauley Rabalais, Unland & Lorio 5100 Village Walk, Suite 300 Covington, LA 70433 (985) 893-9900 Counsel for Defendant/Appellant: Gilchrist Construction Company DECUIR, Judge.
Ecclesiastes Veazie filed this workers’ compensation claim against his
employer, Gilchrist Construction, after developing an infection from a minor knee
injury. Gilchrist denied the claim, contesting that a work-related injury had occurred.
After a trial on the merits, the workers’ compensation judge ruled in favor of Veazie,
awarding him medical and disability benefits, penalties, and attorney fees in the
amount of $10,000.00. Both Gilchrist and Veazie have appealed. For the following
reasons, we amend and, as amended, affirm.
The facts in the record show Veazie injured his right knee when he fell onto
some gravel in August of 2002. He testified the accident occurred at work, though he
knew of no witnesses to the incident and did not think it was serious enough to report
to his supervisor. He described the injury as insignificant, but within days his knee
was swollen and he sought medical treatment. He was diagnosed with an infection
and spent one night at a Eunice health care facility where he was administered
antibiotics intravenously. Veazie was instructed to seek further treatment at
University Medical Center. He traveled there daily from August 22 through August
28, where he was given IV antibiotics. A medical record from UMC dated August 29,
2002 indicates that the cellulitis had resolved and that Veazie was given two
prescriptions, one for pain medication and one for an oral antibiotic. He was also
referred to UMC’s Medicine Clinic for high blood pressure. The record contains no
further medical evidence.
Veazie’s immediate supervisor at Gilchrist Construction, Curtis Clayton,
testified at trial. He was unaware of Veazie’s accident until three days after it
occurred when he noticed Veazie limping slightly. He asked Veazie about it, and
Veazie told him he had fallen on a rock. The following day, Clayton thought Veazie’s
limp had improved and he was able to kneel down in the course of doing cement work that day. Clayton asked Veazie if he could look at the injured knee at least twice, and
both times Veazie refused his request.
Clayton testified that he received a call from Veazie on August 19, reporting
that he was in the hospital and would not be able to return to work until the following
Monday. Clayton said he asked Veazie if he wanted to see the company doctor or file
a compensation claim, but Veazie responded that he had hurt himself at home. The
medical records from the Eunice Community Medical Center, however, indicate the
injury was work-related. Additionally, between his discharge from the Eunice
hospital and the initiation of treatment at UMC, Veazie hired an attorney and filed a
disputed claim for compensation benefits. In September 2002, he requested
reimbursement for his medical expenses, which totaled $2,081.05, and mileage to and
from UMC.
Concerning Veazie’s disability status, the record shows he sought no medical
treatment for his knee subsequent to August 29, 2002. He testified at trial that he
sometimes feels pain in his knee. He admitted he was involved in an automobile
accident in February of 2003, in which he sustained injury to his legs, neck, and back.
He explained that he never returned to work at Gilchrist Construction because he was
waiting for a call from UMC advising him of the date of a return appointment. The
medical records, however, do not indicate that a return appointment would be
scheduled. The entirety of the evidence on disability consists of the following
exchange between Veazie and his attorney on direct examination after a discussion of
Veazie’s duties at Gilchrist Construction: “Q: Can you do that work now with your
knee? A: I don’t believe so right now, sir.”
Appellate review in workers’ compensation cases is governed by the manifest
error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.
1/14/94), 630 So.2d 733. The appellate court must determine not whether the trier of
2 fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one
in light of the entire record. Rosell v. ESCO, 549 So.2d 840 (La.1989).
Where there is a conflict in the testimony, reasonable evaluations of credibility
and reasonable inferences of fact should not be disturbed upon review even though the
appellate court may feel that its own evaluations and inferences are more reasonable.
Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). Deference is due to the
factfinder’s determinations regarding the credibility of witnesses, “for only the
factfinder can be aware of the variations in demeanor and tone of voice that bear so
heavily on the listener’s understanding and belief in what is said.” Rosell, 549 So.2d
at 844.
The worker’s burden of proof in establishing the occurrence of a job-related
accident is preponderance of the evidence. Bruno v. Harbert Int’l, Inc., 593 So.2d 357
(La.1992). When an accident is unwitnessed, the worker’s testimony alone may be
sufficient to establish the accident occurred if (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 circumstances following the alleged accident.
The trial court described the issues in this case as close credibility
determinations. He found Veazie’s evidence slightly more credible than the
defendant’s, commenting the plaintiff just “barely” met his burden of proof. Our
review of the record reveals a very contentious proceeding with irreconcilable
evidence presented by the opposing parties. The trial court found the plaintiff to be
slightly more credible than the defendant’s witnesses, and we find no error in that
determination. Accordingly, the issues which rest on this credibility determination,
i.e., the occurrence of a work-related accident with resulting compensable medical and
transportation bills, can be affirmed.
3 We turn now to the question of the plaintiff’s disability status. Louisiana
Revised Statute 23:1221 requires proof of temporary total disability by clear and
convincing evidence. In order to receive benefits for a temporary total disability, the
claimant must prove, by clear and convincing evidence, that he is “physically unable
to engage in any employment or self-employment.” “While the workers’
compensation laws are to be construed liberally in favor of the claimant, that
interpretation cannot lessen the claimant’s burden.” Bolton v. Grant Parish Sch. Bd.,
98-1430, p. 4 (La. 3/2/99), 730 So.2d 882, 885. The plaintiff in this case did not meet
his burden of proving an ongoing temporary total disability.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-118
ECCLESIASTES VEAZIE
VERSUS
GILCHRIST CONSTRUCTION COMPANY
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - DISTRICT 3 PARISH OF CALCASIEU, NO. 02-06391 SAM LOWERY, WORKERS’ COMPENSATION JUDGE
OSWALD A. DECUIR JUDGE
Court composed of John D. Saunders, Oswald A. Decuir, and Glenn B. Gremillion, Judges.
AFFIRMED AS AMENDED.
Michael B. Miller Attorney at Law P. O. Drawer 1630 Crowley, LA 70527-1630 (337) 785-9500 Counsel for Plaintiff/Appellant: Ecclesiastes Veazie
Deanne B. McCauley Rabalais, Unland & Lorio 5100 Village Walk, Suite 300 Covington, LA 70433 (985) 893-9900 Counsel for Defendant/Appellant: Gilchrist Construction Company DECUIR, Judge.
Ecclesiastes Veazie filed this workers’ compensation claim against his
employer, Gilchrist Construction, after developing an infection from a minor knee
injury. Gilchrist denied the claim, contesting that a work-related injury had occurred.
After a trial on the merits, the workers’ compensation judge ruled in favor of Veazie,
awarding him medical and disability benefits, penalties, and attorney fees in the
amount of $10,000.00. Both Gilchrist and Veazie have appealed. For the following
reasons, we amend and, as amended, affirm.
The facts in the record show Veazie injured his right knee when he fell onto
some gravel in August of 2002. He testified the accident occurred at work, though he
knew of no witnesses to the incident and did not think it was serious enough to report
to his supervisor. He described the injury as insignificant, but within days his knee
was swollen and he sought medical treatment. He was diagnosed with an infection
and spent one night at a Eunice health care facility where he was administered
antibiotics intravenously. Veazie was instructed to seek further treatment at
University Medical Center. He traveled there daily from August 22 through August
28, where he was given IV antibiotics. A medical record from UMC dated August 29,
2002 indicates that the cellulitis had resolved and that Veazie was given two
prescriptions, one for pain medication and one for an oral antibiotic. He was also
referred to UMC’s Medicine Clinic for high blood pressure. The record contains no
further medical evidence.
Veazie’s immediate supervisor at Gilchrist Construction, Curtis Clayton,
testified at trial. He was unaware of Veazie’s accident until three days after it
occurred when he noticed Veazie limping slightly. He asked Veazie about it, and
Veazie told him he had fallen on a rock. The following day, Clayton thought Veazie’s
limp had improved and he was able to kneel down in the course of doing cement work that day. Clayton asked Veazie if he could look at the injured knee at least twice, and
both times Veazie refused his request.
Clayton testified that he received a call from Veazie on August 19, reporting
that he was in the hospital and would not be able to return to work until the following
Monday. Clayton said he asked Veazie if he wanted to see the company doctor or file
a compensation claim, but Veazie responded that he had hurt himself at home. The
medical records from the Eunice Community Medical Center, however, indicate the
injury was work-related. Additionally, between his discharge from the Eunice
hospital and the initiation of treatment at UMC, Veazie hired an attorney and filed a
disputed claim for compensation benefits. In September 2002, he requested
reimbursement for his medical expenses, which totaled $2,081.05, and mileage to and
from UMC.
Concerning Veazie’s disability status, the record shows he sought no medical
treatment for his knee subsequent to August 29, 2002. He testified at trial that he
sometimes feels pain in his knee. He admitted he was involved in an automobile
accident in February of 2003, in which he sustained injury to his legs, neck, and back.
He explained that he never returned to work at Gilchrist Construction because he was
waiting for a call from UMC advising him of the date of a return appointment. The
medical records, however, do not indicate that a return appointment would be
scheduled. The entirety of the evidence on disability consists of the following
exchange between Veazie and his attorney on direct examination after a discussion of
Veazie’s duties at Gilchrist Construction: “Q: Can you do that work now with your
knee? A: I don’t believe so right now, sir.”
Appellate review in workers’ compensation cases is governed by the manifest
error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.
1/14/94), 630 So.2d 733. The appellate court must determine not whether the trier of
2 fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one
in light of the entire record. Rosell v. ESCO, 549 So.2d 840 (La.1989).
Where there is a conflict in the testimony, reasonable evaluations of credibility
and reasonable inferences of fact should not be disturbed upon review even though the
appellate court may feel that its own evaluations and inferences are more reasonable.
Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). Deference is due to the
factfinder’s determinations regarding the credibility of witnesses, “for only the
factfinder can be aware of the variations in demeanor and tone of voice that bear so
heavily on the listener’s understanding and belief in what is said.” Rosell, 549 So.2d
at 844.
The worker’s burden of proof in establishing the occurrence of a job-related
accident is preponderance of the evidence. Bruno v. Harbert Int’l, Inc., 593 So.2d 357
(La.1992). When an accident is unwitnessed, the worker’s testimony alone may be
sufficient to establish the accident occurred if (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 circumstances following the alleged accident.
The trial court described the issues in this case as close credibility
determinations. He found Veazie’s evidence slightly more credible than the
defendant’s, commenting the plaintiff just “barely” met his burden of proof. Our
review of the record reveals a very contentious proceeding with irreconcilable
evidence presented by the opposing parties. The trial court found the plaintiff to be
slightly more credible than the defendant’s witnesses, and we find no error in that
determination. Accordingly, the issues which rest on this credibility determination,
i.e., the occurrence of a work-related accident with resulting compensable medical and
transportation bills, can be affirmed.
3 We turn now to the question of the plaintiff’s disability status. Louisiana
Revised Statute 23:1221 requires proof of temporary total disability by clear and
convincing evidence. In order to receive benefits for a temporary total disability, the
claimant must prove, by clear and convincing evidence, that he is “physically unable
to engage in any employment or self-employment.” “While the workers’
compensation laws are to be construed liberally in favor of the claimant, that
interpretation cannot lessen the claimant’s burden.” Bolton v. Grant Parish Sch. Bd.,
98-1430, p. 4 (La. 3/2/99), 730 So.2d 882, 885. The plaintiff in this case did not meet
his burden of proving an ongoing temporary total disability.
We affirm the trial court’s finding that Veazie was injured in the course and
scope of his employment. Consequently, we likewise affirm the award of “all
reasonable and necessary” medical benefits. On the question of disability benefits, it
is certainly clear that Veazie, by virtue of his ongoing medical care, was temporarily
disabled from the time he sought medical care in Eunice until his condition resolved
as evidenced in the August 29, 2002 medical record. Therefore, Veazie is entitled to
temporary total benefits from August 19, 2002 through August 29, 2002, based on an
average weekly wage of $300.00. There is, however, insufficient proof that Veazie
was disabled past August 29, 2002, and we amend the award of indemnity benefits so
as to exclude benefits beyond that date.
Both parties dispute the award of penalties and attorney fees. Veazie contends
he should have been awarded a penalty for the failure to pay indemnity benefits and
an additional penalty for the failure to pay medical benefits. He also requests
additional attorney fees for work done on appeal. Gilchrist Construction contends that
because the claim was reasonably controverted, penalties and attorney fees should not
have been awarded.
4 The determination of whether an employer should be cast with penalties and
attorney fees is essentially a question of fact, and the trial court’s finding must not be
disturbed on appeal absent manifest error. Wiltz v. Baudin’s Sausage Kitchen, 99-930
(La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La. 10/13/00), 771
So.2d 650. “To avoid penalties and attorneys fees for the nonpayment of benefits, the
employer or insurer is under a continuing duty to investigate, to assemble, and to
assess factual information before denying benefits.” George v. Guillory, 00-591, p. 13
(La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209.
The workers’ compensation judge found that Gilchrist “did not do all that it
could have, and indeed should have done,” in response to the plaintiff’s injury. We
find no manifest error in this conclusion. Accordingly, we affirm the award of a
$2,000.00 penalty for the failure to pay indemnity benefits, and we award an
additional penalty of $2,000.00 for the failure to pay medical benefits.
While we find that attorney fees were properly awarded, we have determined,
based on our review of the record, that the amount of the attorney fee award is
excessive. Pretrial discovery was minimal, the issues were not complicated, and the
trial lasted a half day. Although a time sheet is in evidence, we find it wholly
inadequate, detailing neither time expended nor personnel involved in each task.
Accordingly, the attorney fee award is reduced to $5,000.00. An additional attorney
fee of $2,500.00 is awarded for work done on appeal.
Costs of this appeal are assessed to Gilchrist Construction.