Hunter v. James Machine Works, Inc.

48 So. 3d 1103, 2010 La. App. LEXIS 1247, 2010 WL 3705008
CourtLouisiana Court of Appeal
DecidedSeptember 22, 2010
DocketNo. 45,538-WCA
StatusPublished

This text of 48 So. 3d 1103 (Hunter v. James Machine Works, 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
Hunter v. James Machine Works, Inc., 48 So. 3d 1103, 2010 La. App. LEXIS 1247, 2010 WL 3705008 (La. Ct. App. 2010).

Opinion

LOLLEY, J.

h Sammy Mark Hunter appeals a judgment by the Office of Worker’s Compensation for the State of Louisiana (“OWC”), which dismissed Hunter’s claims for additional wage benefits, penalties, and attorney’s fees from his previous employer, James Machine Works, L.L.C. (“JMW”). The judgment was entered in response to JMW’s motion for the involuntary dismissal of Hunter’s claims at the close of his case. For the following reasons, we affirm the OWC’s judgment.

Facts

On June 15, 2007, Hunter, an employee at JMW, injured his left foot in a work-related accident. Shortly after the accident, JMW began paying worker’s compensation benefits to Hunter. After three weeks of benefits had been paid, JMW increased the benefits and began paying Hunter $377.44 per week, which it continues to do. Hunter claims that he informed JMW that it was miscalculating his benefits, because the information used to calculate his average weekly wages for the four week period of time immediately preceding the accident was incomplete and erroneous.

Hunter states that JMW refused to recalculate his benefits, so on August 16, 2008, he filed his Disputed Claim for Compensation with the OWC. In his claim, Hunter sought additional benefits, along with penalties and attorney’s fees.1 As to his wage benefits, there are two specific issues that Hunter advanced. Namely, he claimed that JMW’s wage information was inaccurate because it did not include: (1) the first 40 hours that Hunter claimed he worked for JMW between May 28 and June 3, 2007 (the third |2week of the four-week period immediately preceding the week of his injury); and (2) wages or income that Hunter earned through other employment as a result of his landscap-ingdawn service business.

The matter was set for trial on November 12, 2009. Some of the facts stipulated by the parties at the outset were:

[1105]*11051) Hunter was employed by JMW on the date of his accident;
2) Hunter was injured on June 15, 2007, while in the course and scope of his employment;
3) Hunter had been temporarily and totally disabled since the date of the accident until the date of the trial, and he was entitled to temporary and total disability benefits as a result; and
4) With the exception of the first three weeks following the accident, JMW had paid Hunter benefits in the amount of $377.44 per week.

At the conclusion of Hunter’s case, JMW moved for an involuntary dismissal on the grounds that Hunter had failed to prove he was entitled to relief. The OWC sustained. JMW’s motion and dismissed Hunter’s claims with prejudice, stating that Hunter had failed to carry his burden of proof. This appeal by Hunter ensued.

Discussion

Hunter brings one assignment of error on appeal, arguing that the OWC erred when it granted JMW’s motion for involuntary dismissal. He maintains that there are 19 issues presented for review, only several of which he actually briefed. Initially, Hunter argues that the OWC’s findings | sare not entitled to deference and review under the manifest error standard, because, here, the OWC’s judgment was predicated upon an erroneous interpretation and application of law.

Ordinarily, the factual findings of the OWC are subject to manifest error review. Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275, 287; Key v. Monroe City School Bd., 45,096 (La.App.2d Cir.03/10/10), 32 So.3d 1144. In this case Hunter argues that the OWC’s determination was legal error and should not be reviewed under the manifest error/clearly wrong standard of review and instead this court should apply a de novo review of this matter. We do not believe the OWC’s conclusion in this case was based on an erroneous legal interpretation and application of law. On this record, we find no basis for a de novo review and instead have applied the manifest error standard.

In the case sub judice, upon the conclusion of Hunter’s case, JMW moved for an involuntary dismissal pursuant to La. C.C.P. art. 1672(B), which states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Provided that the plaintiff has completed the presentation of his case, an involuntary dismissal may be granted in a workers’ compensation ease. Taylor v. Tommie’s Gaming, 2004-2254 (La.05/24/05), 902 So.2d 380; Dick v. B & B Cut Stone Co., L.L.C, 40,441 (La.App.2d Cir.12/14/05), 917 So.2d 1191.

A motion for involuntary dismissal requires the trial court to evaluate all the evidence presented by the plaintiff and render a decision based upon a preponderance of the evidence. Gray v. City of Monroe, 41,087 (La.App.2d Cir.05/17/06), 930 So.2d 1148. Proof by a preponderance of the evidence means that the evidence, taken as a whole, shows that the fact or cause sought to be proved is more proba[1106]*1106ble than not. Crowell v. City of Alexandria, 558 So.2d 216 (La.1990); Bartley v. Fondren, 43,779 (La.App.2d Cir.12/03/08), 999 So.2d 146. A plaintiff is entitled to no special inferences in his favor, but “uncon-troverted testimony should be taken as true to establish a fact for which it is offered absent circumstances in the record casting suspicion on the reliability of the testimony and a sound reason for its rejection.” Johnson v. Insurance Co. of North America, 454 So.2d 1113 (La.1984); Bartley v. Fondren, supra. The appellate court should not reverse an involuntary dismissal in the absence of manifest error, and there is no manifest error if there is a reasonable factual basis for the finding of the trial court. Bartley v. Fondren, supra; Gray v. City of Monroe, supra.

Here, there was only one issue before the OWC, and that was the accuracy of the calculation by JMW of Hunter’s average weekly wage, which Hunter argued was incorrectly calculated for two reasons. First, he claimed that JMW had not included all of the wages he had earned for work performed at JMW during the week of May 28 to June 3, 2007. Second, he | ¡¡claimed that JMW did not include income he earned from “moonlighting” with his lawn and landscaping business during the four weeks preceding his workplace accident. After hearing Hunter’s evidence at the trial of the matter, the OWC properly granted JMWs motion for an involuntary dismissal, which finding we believe had a reasonable factual basis.

As to the claim that JMW failed to include all of Hunter’s wages for the week beginning May 28, 2007, Hunter maintains that although JMWs payroll records indicate he only worked 12.5 hours that week (notes in the payroll records indicate that he had been sick that week), he actually worked an entire 40 hour week along with several hours of overtime. On this issue, the OWC noted the following:

[H]e indicates — once again, he uses this word, “probably” worked eighteen hours overtime.

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Related

Johnson v. Ins. Co. of N. America
454 So. 2d 1113 (Supreme Court of Louisiana, 1984)
Dick v. B & B CUT STONE CO., LLC
917 So. 2d 1191 (Louisiana Court of Appeal, 2005)
Bartley v. Fondren
999 So. 2d 146 (Louisiana Court of Appeal, 2008)
Buxton v. Iowa Police Department
23 So. 3d 275 (Supreme Court of Louisiana, 2009)
Key v. Monroe City School Board
32 So. 3d 1144 (Louisiana Court of Appeal, 2010)
Taylor v. Tommie's Gaming
902 So. 2d 380 (Supreme Court of Louisiana, 2005)
Crowell v. City of Alexandria
558 So. 2d 216 (Supreme Court of Louisiana, 1990)
Gray v. City of Monroe
930 So. 2d 1148 (Louisiana Court of Appeal, 2006)

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Bluebook (online)
48 So. 3d 1103, 2010 La. App. LEXIS 1247, 2010 WL 3705008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-james-machine-works-inc-lactapp-2010.