Gradney v. LOUISIANA COMMERCIAL LAUNDRY

38 So. 3d 1115, 9 La.App. 3 Cir. 1465, 2010 La. App. LEXIS 694, 2010 WL 1873288
CourtLouisiana Court of Appeal
DecidedMay 12, 2010
Docket09-1465
StatusPublished
Cited by12 cases

This text of 38 So. 3d 1115 (Gradney v. LOUISIANA COMMERCIAL LAUNDRY) 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
Gradney v. LOUISIANA COMMERCIAL LAUNDRY, 38 So. 3d 1115, 9 La.App. 3 Cir. 1465, 2010 La. App. LEXIS 694, 2010 WL 1873288 (La. Ct. App. 2010).

Opinions

SAUNDERS, Judge.

| j Herein, we address whether the trial court erred in awarding temporary total disability benefits, penalties for failure to pay medical bills and disability benefits, and attorney fees. For the following reasons, we affirm the ruling of the trial court and award additional attorney fees.

FACTS AND PROCEDURAL HISTORY:

On March 21, 2008, Shawn Gradney (Gradney) sustained a leg injury while engaged in his employment with Louisiana Commercial Laundry-Single Source Supply (LCL). His duties with LCL required him to report to the company’s Lafayette office, load up his truck, and travel a route through Lake Charles to casinos where he would pick up dirty laundry and replace it with clean laundry. On Friday March 21, 2008, while pushing a full laundry buggy up an incline into his truck, Gradney felt something pull in his leg near the hip. He reported the injury to his supervisor, Justin Morton.

After a weekend of rest, Gradney attempted to resume his work responsibilities on the following Monday. The pain was overwhelming, and his supervisor advised him to see a doctor. On March 26, 2008, Gradney met with his family doctors, Drs. Derek and Lana Metoyer, who took him off of work for one week. He returned to work on April 1, 2008, but the pain eventually flared up again. He again consulted with his doctors at the Metoyer Medical Clinic, and he was taken off of work from April 3, 2008 until April 14, 2008. Gradney never returned to work with LCL.

Gradney was treated at the Metoyer Medical Clinic from March 26, 2008 [1118]*1118through June 19, 200, and was diagnosed as having suffered a strained groin. He was ordered to have an MRI, was prescribed Lortab, and required crutches to get around.

On June 25, 2008, Gradney instituted a claim for workers’ compensation |2benefits. A trial was held on this matter on May 11, 2009. The court found that Gradney sustained his burden of proving the accident on March 21, 2008, and his subsequent disability from April 3, 2008 through June 19, 2008. The court awarded Gradney temporary total disability (TTD) benefits in the amount of $307.86 per week. The court also awarded a $2,000.00 penalty for the insurer’s failure to pay a bill to Metoyer Medical Clinic, a $2,000.00 penalty for failure to pay TTD benefits, and $7,500.00 in attorney fees.

LCL appeals this judgment and asserts the following assignments of error. Grad-ney has answered the appeal and prayed for an increase in the penalties and attorney fees awarded as well as additional attorney fees for responding to this appeal.

APPELLANT’S ASSIGNMENTS OF ERROR:

1. The trial court committed manifest error in awarding temporary total disability benefits from April 3, 2008 until June 19, 2008.
2. The trial court committed manifest error in awarding a $2,000.00 penalty for failure to pay a bill owed to Dr. Metoyer absent any evidence that the employer or insurer ever received written notice of the unpaid bill.
3. The trial court committed manifest error in awarding a penalty and attorney fees for failure to pay temporary total disability benefits, or alternatively committed manifest error in sustaining hearsay objections regarding whether the employer reasonably controverted Mr. Grad-ney’s claim for benefits.

LAW AND DISCUSSION ON THE MERITS:

Standard of Review
Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556; Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether [P)the factfinder’s conclusion was a reasonable one. Banks, 96-2840 at pp. 7-8, 696 So.2d at 556; Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (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. Banks, 96-2840 at p. 8, 696 So.2d at 556; Stobart, 617 So.2d at 882. “Thus, ‘if the [factfin-der’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Banks, 96-2840 at p. 8, 696 So.2d at 556 (quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/2/91), 704 So.2d 1161, 1164 (alteration in original).

[1119]*1119 Temporary Total Disability Benefits

LCL contends that the trial court erred in awarding TTD benefits to Grad-ney. It argues that Gradney has failed to show any objective signs of injury and that, at most, he is entitled to only two days of TTD benefits.

Generally, a workers’ compensation claimant must prove by a preponderance of the evidence that he has suffered a work-related accident and injury. Smith v. Town of Olla, 07-384 (La.App. 3 Cir. 10/3/07), 966 So.2d 1165.

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (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 the circumstances following the alleged incident. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). Corroboration of the worker’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Id.

Id. at 1169 (quoting Hebert v. C.G. Logan Constr., Inc., 06-612 (La.App. 3 Cir. 11/2/06), 942 So.2d 77, 80).

We note, however, that in cases of TTD benefits, La.R.S. 23:1221(l)(c) provides for an elevated burden of proof:

LFor purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (l)(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.

Under the application of either standard, we cannot say that the trial court was in manifest error or was clearly wrong in granting TTD benefits to Gradney. LCL’s only argument in support of this assignment of error is that the benefits were awarded based on a “subjective pain complaint.” We disagree. The record reflects that there was considerable objective evidence of an injury sustained on the job.

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Bluebook (online)
38 So. 3d 1115, 9 La.App. 3 Cir. 1465, 2010 La. App. LEXIS 694, 2010 WL 1873288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gradney-v-louisiana-commercial-laundry-lactapp-2010.