STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 12-727
JASON D. DUGAS
VERSUS
AUTOZONE, INC., ET AL.
**********
APPEAL FROM THE OFFICE OF WORKERS‟ COMPENSATION - NUMBER 3 PARISH OF CALCASIEU, NO. 10-10031 SAM L. LOWERY, WORKERS‟ COMPENSATION JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
AFFIRMED AS AMENDED.
Marcus Miller Zimmerman 4216 Lake Street Lake Charles, LA 70605 (337) 474-1644 COUNSEL FOR PLAINTIFF/APPELLEE: Jason D. Dugas
B. Scott Cowart Taylor, Wellons, Politz & Duhe 7924 Wrenwood Blvd, Ste C Baton Rouge, LA 70809 (225) 387-9888 COUNSEL FOR DEFENDANT/APPELLANT: Firestone Complete Auto Care David Clay Clarke Williams & Associates, LLC P.O. Box 54024 Lafayette, LA 70505-4024 (337) 289-6555 COUNSEL FOR DEFENDANT/APPELLEE: AutoZone, Inc. EZELL, Judge.
Firestone Complete Auto Care appeals a judgment from the Office of Workers‟
Compensation awarding Jason Dugas temporary total disability benefits as well as
medical benefits. Firestone alleges that Mr. Dugas is not entitled to benefits for
several reasons. Firestone argues that Mr. Dugas made false statements in violation of
La.R.S 23:1208 and his claim should have been dismissed. Alternatively, it argues
that Mr. Dugas failed to establish that an accident occurred or that the accident at
Firestone was the sole cause of his alleged disability. Firestone also complains about
the award of penalties and attorney fees. For the following reasons, we affirm the
judgment of the Office of Workers‟ Compensation and award additional attorney fees.
FACTS
On May 3, 2010, Jason Dugas was working at AutoZone in Lake Charles, when
he slipped and fell in a puddle of water outside the restroom, landing on his tailbone.
He reported the accident but did not miss any time from work nor did he seek medical
attention. Seeking a higher-paying job, Mr. Dugas left his employment with
AutoZone and went to work for Firestone. Mr. Dugas began work with Firestone on
June 14, 2010.
At Firestone, Mr. Dugas was classified as a C class technician. His duties
involved general maintenance of vehicles which included vehicle inspections, oil
changes, and tire changes. In late August 2010, Mr. Dugas was assigned a ticket for a
vehicle to change all four tires. He went to the stock room to retrieve the tires. The
tires he needed were on the top shelf, so he used an A-frame ladder to reach the tires.
Mr. Dugas was yanking on a tire when he fell to the concrete floor. He landed on his
lower back. Mr. Dugas laid on the floor for a minute and then called Terry Guillory, a
coworker, for help. Mr. Guillory heard his name whispered, so he walked to the back where he saw
Mr. Dugas laying on the floor, flat on his back. Mr. Guillory helped Mr. Dugas sit up
and then went to get Mike Trahan, the service manager. As Mr. Guillory and Mr.
Trahan were talking, Mr. Dugas walked up and told them he was doing ok and did not
need medical treatment. Mr. Dugas continued working.
On September 16, 2010, Mr. Dugas went to see Dr. Shaine Rider, a
chiropractor. Dr. Rider observed spasm and edema along the neck. He also noted
swelling in the upper back and in both sacroiliac joints. Mr. Dugas began treatment
on September 20, 2010, at which time he quit work with Firestone because his back
was hurting too much. Dr. Rider treated Mr. Dugas until November 8, 2010.
Mr. Dugas saw Dr. Clark Gunderson, an orthopedic surgeon, on November 9,
2010. Mr. Dugas reported that there was pain in his lower back which extended into
his buttocks and thighs as far as his knees. The pain was aggravated by standing and
sitting and relieved with heat. Dr. Gunderson recommended an MRI and referred him
for physical therapy. He prescribed pain medication, muscle relaxants, and anti-
inflammatory agents and placed Mr. Dugas on a no-work status.
An MRI on February 22, 2011, indicated that Mr. Dugas had a narrowed spinal
canal with disk protrusions at L4-5 and L5-S1. After Dr. Gunderson saw Mr. Dugas
on March 11, 2011, he recommended epidural steroid injections.
Dr. James Eddy with the Interventional Pain Management Clinic administered
epidural injections on May 4 and June 8, 2011. After the second injection, Mr. Dugas
did not get relief from the pain and reported incontinence problems. Dr. Gunderson
then referred Mr. Dugas to Dr. Erich Wolf, a neurosurgeon.
Dr. Wolf examined Mr. Dugas on June 30, 2011. Mr. Dugas reported low back
pain radiating into his right lower leg. Dr. Wolf reviewed the MRI and observed a
2 disc bulge with central disc protrusion with an annular tear at L4-5 resulting in
impingement on the central aspect of the thecal sac. A disc bulge with a left
paracentral disc protrusion at L5-S1 resulting in an impingement on the central and
left aspect of the thecal sac was also observed.
Mr. Dugas filed a disputed claim for compensation on October 25, 2010,
against both AutoZone and Firestone. Trial in the matter was held on December 19,
2011. In oral reasons for judgment the workers‟ compensation judge (WCJ) found
that Mr. Dugas did not commit fraud in trying to obtain benefits. The WCJ further
found that Mr. Dugas suffered a work-related accident at Firestone and that Mr.
Dugas‟s present injury was due solely to his fall at Firestone. Therefore, the WCJ
granted AutoZone‟s motion for involuntary dismissal. The WCJ awarded Mr. Dugas
temporary total disability benefits from September 20, 2010, in the amount of $293.33
per week. Mr. Dugas was also found to be entitled to medical treatment and payment
of his medical expenses. The WCJ concluded that Firestone had improperly denied
Mr. Dugas‟s claim for workers‟ compensation benefits and awarded a $2,000.00
penalty in addition to a $2,000.00 penalty for refusal to pay medical benefits. Mr.
Dugas also received $15,000.00 in attorney fees.
Firestone appeals the judgment arguing that Mr. Dugas committed fraud in
making multiple false statements in discovery, to his doctors, and to the court.
Firestone also claims that Mr. Dugas‟s story that he fell from the ladder at Firestone
was seriously discredited. Firestone further alleges that even if Mr. Dugas did
establish a work-related accident, his alleged disability was caused by a pre-existing
degenerative back syndrome and chronic obesity. Firestone also argues that even if
Mr. Dugas‟s disability was caused by an accident, it resulted from both the AutoZone
3 accident and the Firestone accident. Lastly, Firestone argues that it reasonably
controverted Mr. Dugas‟s claim.
FRAUD
Firestone argues that Mr. Dugas‟s testimony is so internally inconsistent and
contradicted by documents that no reasonable fact finder would credit his story.
Firestone claims that Mr. Dugas willfully concealed his prior injuries involving the
same body part.
Pursuant to La.R.S. 23:1208, a claimant forfeits benefits when he makes a false
statement in seeking to obtain benefits. To prevail under this statute, an employer
must prove “„that (1) there is a false statement or representation, (2) it is willfully
made, and (3) it is made for the purpose of obtaining or defeating any benefit or
payment.‟” Burnett v. Vector Elec. & Controls, Inc., 10-81, p. 4 (La.App. 3 Cir.
6/2/10), 40 So.3d 477, 480 (quoting Resweber v. Haroil Constr. Co., 94-2708, (La.
9/5/95), 660 So.2d 7).
Louisiana Revised Statutes 23:1208.1 also provides for the forfeiture of benefits
when a claimant fails to disclose previous injuries to an employer who inquires about
them. In order to prevail under La.R.S. 23:1208.1, an employer must prove “„(1) an
untruthful statement; (2) prejudice to the employer; and (3) compliance with the
notice requirements of the statute.‟” Burnett, 40 So.3d at 482 (quoting Jeffers v.
Kentucky Fried Chicken, 08-1380, (La.App. 3 Cir. 4/1/09), 7 So.3d 812, writ denied,
09-956 (La. 6/19/09), 10 So.3d 738). A WCJ‟s determination regarding forfeiture of
benefits is subject to the manifest error/clearly wrong determination. Burnett, 40
So.3d 477.
In oral reason for judgment, the WCJ stated that “[t]he conduct of Mr. Dugas
simply does not paint a portrait of an individual set and determined to commit fraud.
4 Rather, it tends to show an individual, who does not present well in the job market,
trying to get and keep a job.”
Admittedly, Mr. Dugas has a serious weight problem. He weighed 362 pounds
when he applied for the job at Firestone. As part of the hiring process, Mr. Dugas
completed an “Applicant Health History.” When asked if he had ever been injured
on the job, whether a doctor had placed any restrictions on his job, or whether he had
any problems with the neck, back, or spine, Mr. Dugas circled “no” as an answer to all
questions. Mr. Dugas only indicated that he was working out as part of a weight loss
plan, wears glasses, and was receiving treatment for asthma.
Records from Dr. Rider‟s office indicate that only the slip and fall accident at
AutoZone was reported. Dr. Gunderson‟s records also report only the incident at
AutoZone. There is no mention in either of the records about the fall from the ladder
at Firestone.
Mr. Dugas agreed at trial that he had several incidents over the years with back
issues. In 2005 he was playing with his dog and pulled his back. In 2006, while
working at All Serve, he was uncoupling a trailer from a truck when he felt something
pull in his back. He did not miss any days of work but was placed on light-duty. In
2008. Mr. Dugas was working at Transwood when he was replacing a visor light on
an eighteen-wheeler and fell from the ladder hurting his back. He only missed one or
two days of work.
Mr. Dugas testified that he did not consider any of these incidents “injuries”
because it was merely muscle strain and he did not miss any time from work. Mr.
Dugas further explained that he wanted to make sure he got the job at Firestone
because it paid more money and he was having financial problems.
5 Mr. Dugas did not tell Dr. Rider about any job accidents. He simply indicated
that he thought his problems were caused by his weight and manual labor. Upon
further inquiry by Dr. Rider, Mr. Dugas told him about the slip and fall at AutoZone.
He testified that he told Dr. Rider about the incident at Firestone but for some reason
it was not placed in the records.
Mr. Dugas explained that when he first went to see Dr. Rider, he did not know
anything about workers‟ compensation and he wanted to get better and keep working
in order to keep his job. He was afraid he would lose his job. Mr. Dugas knew that
he was performing poorly at work because he could not keep up with the demand. He
did not want to give Firestone any reason to fire him.
Mr. Dugas also testified that he told the nurse at Dr. Gunderson‟s office about
both accidents but she failed to record the one at Firestone. Mr. Dugas‟s wife Dawn
explained that the nurse seemed confused. They were told that the nurse passed out
after she had finished taking Mr. Dugas‟s history and had to be rushed to the hospital.
We find no error in the WCJ‟s finding that Mr. Dugas had any intent to deceive
Firestone in order to obtain benefits. Mr. Dugas was able to continue working
following the previous incidents. Furthermore, he was consistent in his testimony that
he wanted to get and keep his job at Firestone. His actions both before and after the
accident at Firestone also support Mr. Dugas‟s testimony that he wanted to try and
continue to work at Firestone following his fall. Accordingly, the record supports the
workers‟ compensation judge‟s finding that Mr. Dugas‟ statements were not made
with an intent to fraudulently obtain benefits.
ACCIDENT
Firestone also claims the WCJ erred in finding that Mr. Dugas suffered an
accident while employed there. It argues that his credibility is suspect because his
6 testimony was shown to be false and contradicted by both the medical records and
witnesses at trial.
A claimant is entitled to workers‟ compensation benefits when he suffers
personal injury caused by an accident that arises out of and in the course of his
employment. La.R.S. 23:1031(A). An accident is “an unexpected or unforeseen
actual, identifiable, precipitous event happening suddenly or violently, with or without
human fault, and directly producing at the time objective findings of an injury which
is more than simply a gradual deterioration or progressive degeneration.” La.R.S.
23:1021(1). The burden of proving a work-related accident is on the claimant.
Ardoin v. Firestone Polymers, L.L.C., 10-245 (La. 1/19/11), 56 So.3d 215.
“Despite the lack of a witness to the accident, a claimant can establish its
occurrence if: 1) no other evidence discredits or casts serious doubt upon the
claimant‟s version of events; and 2) the claimant‟s account is corroborated by
circumstances following the alleged accident.” Bell v. Our Lady of Lourdes Reg. Med.
Ctr., Inc., 10-1554, p. 4 (La.App. 3 Cir. 6/1/11), 68 So.3d 1174, 1176 (citing Bruno v.
Harbert Int’l, Inc., 593 So.2d 357 (La.1992)).
Although no one witnessed Mr. Dugas fall from the ladder at Firestone, he
immediately called for help. Terry Guillory confirmed that he heard Mr. Dugas
calling him and when he found Mr. Dugas, he was laying on the ground. Mr. Guillory
helped him up and reported the accident to Mike Trahan. Mr. Trahan testified that Mr.
Guillory told him about Mr. Dugas‟s fall of the ladder. Mr. Trahan testified that Mr.
Dugas came into the room and was red in the face and did not want to talk about it.
Mr. Trahan offered an ambulance to which Mr. Dugas replied that he could not afford
it. Mr. Trahan testified that he told Mr. Dugas that they had insurance for these
7 purposes. Joe Williams, the store manager, testified that he heard about the accident a
couple of days later.
Mr. Dugas continued to work for a few more weeks until Labor Day when he
told Mr. Trahan that his back was increasingly starting to hurt. He had a meeting with
Mr. Trahan and Mr. Williams and thought they were terminating him, so he did not
return to work. Mr. Williams then called him a few days later to come back. Due to
the increasing back pain, Mr. Dugas went to see a chiropractor hoping to alleviate the
pain. He did not immediately report the accident to Dr. Rider because he did not
know about workers‟ compensation and he wanted to keep his job because he needed
the money. As previously discussed, Mr. Dugas‟s wife explained that they did tell Dr.
Gunderson‟s nurse about the accident at Firestone but she was having some medical
issues at the time. Furthermore, the medical records of Drs. Eddy and Wolf both
indicate that Mr. Dugas reported the Firestone accident to them.
Mr. Dugas admitted that he had back pain while working at Firestone before the
accident which prevented him from keeping up with his job duties. He also had
problems with overheating, dehydration, and asthma. However, after the accident, he
was not able to perform anywhere near what he did before the accident. He has not
been able to do physical work since the accident.
We find no error in the WCJ‟s conclusion that Mr. Dugas suffered a work-
related accident while employed at Firestone. The accident was immediately reported,
and reasonable explanations were given as to why the medical records do not indicate
an accident at Firestone.
CAUSATION
Firestone argues that Mr. Dugas‟s disability was caused by a pre-existing
degenerative back syndrome and chronic obesity and not by an accident.
8 Alternatively, it argues if Mr. Dugas‟s disability resulted from an accident, it resulted
from both the AutoZone and Firestone accidents.
“In order to receive workers‟ compensation benefits, an injured employee must
establish a causal connection between their work-related accident and the resulting
complained of disability.” LeJeune v. Bell Tower Corp., 09-1222, p. 8 (La.App. 3 Cir.
4/7/10), 34 So.3d 464, 469. “The burden of proof is by a preponderance of the
evidence.” Id.
“A preexisting medical condition will not bar an employee from recovery if the
employee establishes that the work-related accident aggravated, accelerated or
combined with the condition to cause the disability for which compensation is
claimed.” Silverman v. Weatherford Intern., Inc., 46,402, 46,403, p. 6 (La.App. 2 Cir.
10/19/11), 83 So.3d 11, 16, writ denied, 12-76 (La. 3/23/12), 85 So.3d 89.
The preexisting condition is presumed to have been aggravated by the accident if the employee proves: (1) the disabling symptoms did not exist before the accident, (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and (3) either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and the activation of the disabling condition.
Id.
“In the case of two work-related accidents with separate employers, both of
which are contributing causes of the ultimate disability, the employers and their
insurers at the time of the accidents may be solidarily liable for the payment of
compensation.” Id.
There is no doubt that Mr. Dugas has had back issues for several years. There
were several instances involving other work-related injuries, but he would never lose
any time from work. Mr. Dugas also admitted that he would often suffer with a sore
back while working, depending on the level of physical activity. However, it was not
9 until the accident at Firestone that Mr. Dugas‟s back pain became intense enough to
seek medical attention. He was then advised by his treating doctors not to return to
work. Up until the accident at Firestone, Mr. Dugas was able to perform his job,
although admittedly he was not efficient. He never sought medical treatment after his
injury at AutoZone.
Dr. Rider doubted that the accident at AutoZone would have sustained the
inflammation that he observed for that long of a time period. He opined that
something more recent had caused the inflammation because inflammation will take
care of itself in a few months. When Dr. Rider first saw Mr. Dugas, he was in an
acute phase of inflammation. Dr. Rider admitted that a fall off a ladder and landing
on the lower back could be the source of an acute injury.
Dr. Gregory Gidman is an orthopedist who reviewed the records of Mr. Dugas.
He opined that Mr. Dugas‟s symptoms were more probably related to the fall off the
ladder. He explained that it is not the severity of the incident that matters, but the
severity of the injury that does. He did not see anything objectively to indicate that
the slip and fall at AutoZone was a significant injury. He noted that within a week of
the AutoZone accident, Mr. Dugas‟s pain decreased. However, the pain after the
Firestone accident remained constant.
Additionally, Mr. Dugas passed a pre-employment physical required by
Firestone before he started work. Noting Mr. Dugas‟s obesity, the examining
physician specifically found that “APPLICANT IS ABLE TO PERFORM
ESSENTIAL FUNCTIONS AS LISTED WITHOUT RESTRICTIONS,
LIMITATIONS OR ACCOMODATIONS.” We find no error in the WCJ‟s
determination that the accident at Firestone was the sole cause of Mr. Dugas‟s injuries.
10 PENALTIES AND ATTORNEY FEES
The WCJ found that the conduct of Firestone toward Mr. Dugas warranted a
$2,000.00 penalty for the denial of indemnity payments and a $2,000.00 penalty for
the unwarranted refusal to pay medical expenses. The WCJ further awarded
$15,000.00 in attorney fees. In making these awards, the WCJ stated:
It is just about impossible to avoid the conclusion that Firestone, knowing full well that Mr. Dugas fell off the ladder and seriously injured himself, went straightaway to devote considerably more time, effort, and resources into proving up a fraud case then doing what needed to be done to get this man well and back to work. And the irony here is that these many and several efforts were directed toward an individual whose conduct and demeanor indicated that he never wanted to file a workers‟ compensation claim in the first place; rather, he just wanted the job, not a great paying job, just a job. He‟s ended up disabled by his injury, disowned by his employer, and defending a fraud charge.
Firestone argues that it reasonably controverted Mr. Dugas‟s claim, arguing that
its first notice that Dugas was claiming benefits of any kind was the filing of the
lawsuit itself. It argues that Mr. Dugas was offered medical treatment when he
reported the accident but he declined and continued working.
Louisiana Revised Statutes 23:1201(E) provides: “[m]edical benefits payable
under this Chapter shall be paid within sixty days after the employer or insurer
receives written notice thereof.” Failure to pay timely subjects the employer to
penalties and attorney fees unless the claim is reasonably controverted or nonpayment
results from conditions over which the employer had no control. La.R.S.
23:1201(F)(2). “A claim is reasonably controverted when the employer or insurer
produces factual or medical information that reasonably counters the claimant‟s
evidence.” Bourgeois v. Brown’s Deli & Mkt., Inc., 09–290, p. 7 (La.App. 3 Cir.
10/14/09), 21 So.3d 1072, 1077. A WCJ‟s decision on whether to award penalties and
attorney fees is subject to great discretion which will not be disturbed absent an abuse
11 of discretion. Briscoe v. McNeese State Univ., 11–872 (La.App. 3 Cir. 12/7/11), 80
So.3d 700.
Based on the evidence and testimony previously discussed, we do not find that
the WCJ abused his discretion in awarding penalties and attorney fees. Mr. Dugas
also answered the appeal requesting additional attorney fees for the work required by
this appeal.
„“An increase in attorney fees is awarded on appeal when the defendant appeals,
obtains no relief, and the appeal has necessitated more work on the part of the
plaintiff‟s attorney, provided that the plaintiff requests such an increase.”‟ Williamson
v. Liberty Mut. Ins. Co., 12-148, p. 7 (La.App. 3 Cir. 6/6/12), 92 So.3d 1218, 1223
(quoting McKelvey v. City of DeQuincy, 07–604, (La.App. 3 Cir. 11/14/07), 970 So.2d
682). Considering our affirmation of the judgment of the WCJ, we find that an
additional award of $2,000.00 is appropriate to compensate Mr. Dugas for the work
necessitated by this appeal.
For the reasons set forth in the opinion, we award an additional $2,000.00 in
attorney fees for Mr. Dugas‟s counsel‟s work on appeal. In all other respects, the
judgment of the Office of Workers‟ Compensation is affirmed. Costs of this appeal
are assessed to Firestone Complete Auto Care.