Ford v. Bechtel O.G.C. Construction Services, Inc.

209 So. 3d 110, 2016 La.App. 3 Cir. 554, 2016 La. App. LEXIS 2207
CourtLouisiana Court of Appeal
DecidedDecember 7, 2016
Docket16-554
StatusPublished

This text of 209 So. 3d 110 (Ford v. Bechtel O.G.C. Construction Services, 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
Ford v. Bechtel O.G.C. Construction Services, Inc., 209 So. 3d 110, 2016 La.App. 3 Cir. 554, 2016 La. App. LEXIS 2207 (La. Ct. App. 2016).

Opinion

CONERY, Judge.

hBechtel O.G.C. Construction Services, Inc. (Bechtel) and its insurer, Insurance Company of The State of Pennsylvania c/o AIG Claims, Inc. (AIG) (referred to hereafter as Defendants, unless otherwise stated), appeal the judgment of the workers’ compensation judge (WCJ) in favor of Ev-rin S. Ford, who was formerly employed by Bechtel as a journeyman materials handler. Mrs. Ford answers the appeal seeking attorney fees for work done on appeal. For the following reasons, we affirm.

[113]*113FACTS AND PROCEDURAL HISTORY

Mrs. Ford filed a 1008 Disputed Claim for Compensation, commonly referred to as a Form 1008, pursuant to La.R.S. 23:1034.2(F)(1) on August 19, 2014, against Defendants for “Penalties and attorney fees, and in addition, claimant is entitled to any medical and indemnity benefits possibly allowed in her claim. Futhermore, claimant also seeks interest on all awards with all costs of this action to be assessed against the defendant.”

Mrs. Ford claimed that on July 12, 2014, she suffered an injury to her lower back while in the course and scope of her employment with Bechtel. Mrs. Ford described the accident and injury in the Form 1008 as, “[Claimant did repetitive bending and lifting of 15-20 lbs. for 8 hrs. Claimant felt soreness in back that evening. On 7/13/2014 claimant woke-up to extreme pain in back and could not move.” Dr. Clark A. Gunderson was designated as Mrs. Ford’s “Choice of Physician.”

Defendants answered Mrs. Ford’s claim for compensation on September 12, 2014, and denied that Mrs. Ford “sustained an injury, resulting in compensable disability out of and in the course of employment, on or about the date stated in her |aclaim for compensation,” despite admitting that she was an employee of Bechtel and was performing services in the course of her employment on the date of the alleged injury. Defendants further denied that Mrs. Ford sustained personal injury by “accident” arising out of employment with Bechtal and while she performed services in the course of employment. Defendants’ briefing to this court relied on the definition of “accident” as defined in La.R.S. 23:1021(1) in denying Mrs. Ford’s claim for benefits

The matter was tried before the WCJ on January 13, 2016, and taken under advisement. The WCJ allowed the parties to file post-trial memoranda and on March 31, 2016, issued its judgment, followed by oral reasons for judgment on April 20, 2016. The WCJ found in the court’s March 31, 2016 judgment that on July 12, 2014, Mrs. Ford, “had a work related accident during the course and scope of her employment with Bechtel,” she was entitled to temporary total disability (TTD) benefits of $619.00 per week, as well as all reasonable and necessary medical benefits, including Dr. Gunderson’s recommendation for a return visit and physical therapy. Further, Mrs. Ford was entitled to penalties of $2,000.00 for Defendants’ failure to pay indemity benefits, $2000.00 for Defendants’ failure to pay medical benefits, and attorney fees in the amount of $12,000,00. Defendants were also assessed costs in the amount of $352.00, and ordered to pay judicial interest on all awards. It is from the March 31, 2016 judgment of the WCJ that Defendants appeal.

ASSIGNMENTS OF ERROR

Defendants assign the following assignments of error on appeal:

1. The Trial Court erred as a matter of law, in finding that the appellee had proved compensable personal injury by accident arising out of and in the course of her employment, where the |sappellee did not identify any precipitous event or acute onset of symptoms while the appellee was at work; appellee’s acute onset of the symptoms which caused her to seek medical treatment occurred at home.
2. The Trial Court erred in ordering appellants to authorize physical therapy and other treatment recommended by appellee’s choice of orthopedic surgeon, where there is no evidence that the procedure required by La.R.S. 23:1203.1 and implementing regulations was attempted.
[114]*1143. The Trial Court erred in awarding penalties and attorney’s (sic) fees, where the defendants had a reasonable basis — appellee’s own admissions under oath, among other things — to contest the claim.

LAW AND DISCUSSION

Standard of Review

We recently discussed the standard of review to be utilized in workers’ compensation cases in LeBlanc v. Wal-Mart Stores, Inc., 15-558, p. 10-11 (La.App. 3 Cir. 11/4/15), 177 So.3d 1125, 1132-33, noting:

The standard of review in a workers’ compensation claim is well established and was succinctly stated in Bracey v. City of Alexandria, 13-16, pp. 2-3 (La.App. 3 Cir. 6/5/13), 115 So.3d 1211, 1214-15, writ denied, 13-1934 (La. 11/8/13), 125 So.3d 455 (quoting Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d 784):
Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t. of Corrections, 93-1305 (La. 2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [factfinder’s] findings are reasonable in light of the record | ¿reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). “[T]he manifest error standard of appellate review applies in workers compensation cases and great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Central Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61)

Mrs. Ford’s Acute Onset of Symptoms Occurred at Home

In their first assignment of error, Defendants argue that the trial court erred in finding that Mrs. Ford’s injury to her back occurred in the course and scope of her employment. They urge that the acute onset of her symptoms of pain from her lower back radiating into her left leg occurred when she attempted to get out of the recliner in her home on the evening of July 12, 2014.

Mrs. Ford is a fifty-three-year-old female. At the time of her alleged work accident on July 12, 2014, she had passed a physical test for the job of journeyman materials handler prior to her employment with Bechtel beginning on January 8, 2014. The pre-employment test included several physical tasks, which required the “lifting of objects, and climbing up and down a few stairs with an object in your hand weighing about 30 pounds or so.”

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209 So. 3d 110, 2016 La.App. 3 Cir. 554, 2016 La. App. LEXIS 2207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-bechtel-ogc-construction-services-inc-lactapp-2016.