STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
13-448
JOHN WILTZ
VERSUS
TODD’S CAR WASH
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION – DISTRICT 4 PARISH OF LAFAYETTE, NO. 0907802 ADAM C. JOHNSON, WORKERS’ COMPENSATION JUDGE
JOHN E. CONERY JUDGE
Court composed of James T. Genovese, Shannon J. Gremillion, and John E. Conery, Judges.
AFFIRMED.
Michael Benny Miller Jacqueline B. Manecke Miller & Miller Post Office Box 1630 Crowley, Louisiana 70527-1630 (337) 785-9500 COUNSEL FOR PLAINTIFF/APPELLANT: John Wiltz Matthew William Tierney Kristine D. Smiley Tierney and Smiley, LLC 3535 South Sherwood Forest, Suite 233 Baton Rouge, Louisiana 70816 (225) 298-0770 COUNSEL FOR DEFENDANT/APPELLEE: Todd’s Car Wash CONERY, Judge.
The plaintiff, John Wiltz (“Mr. Wiltz”), appeals the judgment of the
Workers’ Compensation Judge (“WCJ”) in favor of Todd’s Car Wash (“Todd’s”).
The WCJ found that Mr. Wiltz’s right eye condition and hypertension were not
causally related to his work accident and injury, awarded Todd’s a credit and offset
for all amounts paid in relation to Mr. Wiltz’s right eye, denied Mr. Wiltz
supplemental earnings benefits (“SEB”) both before and after his termination for
cause, awarded Mr. Wiltz $8,000.00 in penalties, awarded $8,000.00 in attorney
fees, and equally divided the claimant’s costs. For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY
It is undisputed that on January 15, 2009, Mr. Wiltz had a compensable
work accident during the course and scope of his employment at Todd’s when a
metal ball struck his left eye. The injury to Mr. Wiltz’s left eye required medical
treatment, including surgery. He was released to light duty work on March 24,
2009.
Mr. Wiltz claimed that as a result of the accident involving his left eye, he
required treatment for glaucoma in his right eye. Additionally, Mr. Wiltz claimed
that he developed high blood pressure due to the January 15, 2009 accident and
was restricted by his physician to working no more than forty hours a week due to
his unstable hypertension. Mr. Wiltz also sought SEB beginning on his return to
work on March 24, 2009.
In addition to its defense on the merits, Todd’s contended that Mr. Wiltz
violated La.R.S. 23:1208 by submitting fraudulent forms and false testimony to the WCJ concerning the use of a dolly while moving fifty-five gallon drums. Todd’s
sought dismissal on these grounds.
This matter proceeded to a trial on the merits before the WCJ. Trial began
on November 7, 2011, and was continued to February 14, 2012, as Todd’s had not
completed their case in chief. In the interim, Mr. Wiltz was terminated for cause
from his position with Todd’s on November 15, 2011, for a violation of company
policy. Counsel for both parties stipulated, and the WCJ agreed, that the effect of
Mr. Wiltz’s termination for cause on his claim for SEB would be heard by the
WCJ at the close of Todd’s case in chief. The parties entered into the following
stipulations prior to and during trial:
1. Mr. Wiltz sustained an accident in the course and scope of his employment with Todd’s on or about January 15, 2009, when a steel ball hit him in the left eye.
2. Todd’s stipulated to the maximum amount penalties under La.R.S. 23:1201(F) of $8,000.00.
3. Mr. Wiltz’s average weekly wage as of January 15, 2009, was $1,000.00.
At the close of evidence, the WCJ took the matter under advisement. On
July 9, 2012, the WCJ rendered oral reasons for judgment on the remaining issues,
finding that Mr. Wiltz failed to meet his burden of proof that his hypertension was
causally related to his accident and that payment for wages or related medical bills
for this condition was not owed by Todd’s pursuant to La.R.S. 23:1201(A) & (E).
The WCJ further found that Mr. Wiltz failed to meet his burden of proof that his
right eye condition was causally related to the injury to his left eye and awarded
Todd’s a credit for all treatment paid for the right eye pursuant to La.R.S. 23:1206.
Additionally, the WCJ found that Mr. Wiltz failed to carry his burden of proof
showing any further entitlement to SEB pursuant to La.R.S. 23:221(3), either for
2 the time he returned to work on March 24, 2009, through November 15, 2011, or
after his termination for cause on November 15, 2011. The WCJ awarded
$8,000.00 in attorney fees based on the degree of skill and ability exercised by the
attorney, the amount of the claim, the amount recovered for the claimant, the
amount of time devoted to the case, and the results obtained. On the issue of costs,
the WCJ found that as the claimant did not prevail on all issues, and Todd’s
stipulated to the penalties right before trial, only fifty percent of claimant’s costs,
$996.49, would be assessed against Todd’s, with legal interest due according to
law. The WCJ reduced the stipulations and reasons for judgment to a written
judgment on September 28, 2012. The WCJ also dismissed Todd’s claim that Mr.
Wiltz violated the provisions of La.R.S. 23:1208,1 by filing false claim forms and
testifying falsely on the issue of lifting fifty-five gallon drums as a work
requirement.
ASSIGNMENTS OF ERROR
Mr. Wiltz perfected a devolutive appeal from the September 28, 2012
judgment, presenting seven assignments of error:
1.) The workers’ compensation judge erred in failing to award disability benefits.
2.) It was error for the workers’ compensation judge to require that Mr. Wiltz first present evidence on Todd’s Car Wash’s Motion to Terminate Benefits due to Mr. Wiltz being terminated from his job at Todd’s Car Wash.
3.) The workers’ compensation judge erred in finding that Mr. Wiltz was terminated for cause and in failing to award any supplemental earnings benefits (SEB) after his termination from Todd’s Carwash, LLC.
1 This finding is contained in the WCJ’s July 9, 2012 oral reasons, but is not referenced in the WCJ’s September 28, 2012 judgment. Since there was no judgment on this issue, there was no appeal of this issue.
3 4.) The workers’ compensation judge erred in finding that Mr. Wiltz failed to meet his burden of proof that the right eye condition was causally related to the work injury.
5.) The workers’ compensation judge erred in finding that Mr. Wiltz failed to meet his burden of proof and in denying all claims related to his high blood pressure and hypertension.
6.) The workers’ compensation judge erred in reducing the attorney’s fees to $8,000.00 when Mr. Wiltz obtained the maximum penalties of $8,000.00 allowable under La.R.S. 23:1201(F).
7.) The workers’ compensation judge erred in only awarding fifty percent of Mr. Wiltz’s expenses when Mr. Wiltz obtained the maximum penalties of $8,000.00 allowable under La. R.S. 23:1201(F).
LAW AND ANALYSIS
“Factual findings in workers’ compensation cases are subject to the manifest
error or clearly wrong standard of appellate review. 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.” Foster v.
Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160,
1162, writ denied, 02-1164 (La. 6/14/02), 818 So.2d 784 (citations omitted).
In Green v. National Oilwell Varco, 10-1041, p. 3 (La.App. 3 Cir. 4/27/11),
63 So.3d 354, 358 (citations omitted), we explained that, “‘[t]he determination of
coverage is a subjective one in that each case must be decided from all of its
particular facts.’ This court has held that, in light of that standard of review, ‘great
deference is accorded to the [workers’ compensation judge’s] factual findings and
reasonable evaluations of credibility.’”
Furthermore, a legal error by the WCJ presents a question of law, which is
reviewed by determining whether the WCJ’s ruling is legally right or wrong.
4 LeBlanc v. Lafayette Consol. Gov’t, 07-1608 (La.App. 3 Cir. 5/28/08), 983 So.2d
1022.
Assignment of Error One - Failure of WCJ to Award Temporary Total Disability Benefits
Mr. Wiltz asserts he is entitled to temporary total disability (“TTD”) benefits
pursuant to La.R.S. 23:1221(1)(b) for the period of time he missed work after the
accident and after his eye surgery on March 12, 2009.
Todd’s asserts that this issue was raised for the first time on appeal by Mr.
Wiltz and was not presented to the WCJ in the proceedings below, as there is no
ruling from the WCJ as to whether or not Mr. Wiltz is entitled to TTD benefits.
Mr. Wiltz contends that the issue was before the WCJ based on Mr. Wiltz’s answer
to Section 2 (c) of the Pretrial Questionnaire, entitled “Claims To Be Litigated At
The Hearing,” wherein it states, “Whether claimant is entitled to weekly
compensation benefits.”
The determination of whether a claimant is entitled to TTD benefits is a
factual issue to be decided by the WCJ and is governed by La.R.S. 23:1221(1).
Louisiana Revised Statutes 23:1221(1)(b) & (c) do not allow an award of TTD
benefits if an employee is engaged in any employment or self-employment, and
places the burden on the claimant to prove by clear and convincing evidence the
inability to engage in any kind of employment of any nature.
The WCJ’s oral reasons and judgment do not contain any ruling on Mr.
Wiltz’s entitlement to TTD benefits, nor does the record reflect any notice to the
WCJ by Mr. Wiltz’s counsel of the omission of this issue. The issue of Mr.
Wiltz’s entitlement to TTD benefits was not considered by the lower court.
5 Therefore, Mr. Wiltz’s first assignment of error cannot be considered by this court.
Boudreaux v. State, Dep’t of Transp. & Dev., 01-1329 (La. 2/26/02), 815 So.2d 7.
Assignments of Error Two and Three - Procedural Issues Relating to Mr. Wiltz’s Entitlement to SEB
Mr. Wiltz’s second and third assignments of error address the issue of Mr.
Wiltz’s termination for cause from his position as manager of the Pinhook Road
location of Todd’s. A Todd’s employee working under Mr. Wiltz’s supervision
drove a customer’s vehicle without a driver’s license and wrecked the vehicle.
Todd’s company policy clearly states: “Only licensed drivers are allowed to
move customer vehicles.”
As previously indicated, counsel for both parties stipulated, and the WCJ
agreed, that the issue of Mr. Wiltz’s termination for cause, and its effect on his
claim for post termination supplemental earning benefits, would be heard by the
WCJ at the close of Todd’s case in chief.
Mr. Wiltz asserts in his second assignment of error that the WCJ erred in
requiring him to present his evidence first on the issue of termination for cause.
We find that the order of trial was within the WCJ’s discretion. The burden to
prove entitlement to SEB remained with Mr. Wiltz, and his termination for cause
was an integral part of that determination.
In Grillette v. Allied Compressors, 05-982 (La.App 3 Cir. 2/1/06), 923 So.2d
774, the claimant contended that regardless of the reason for her termination, she
was restricted to light duty work for the period in question and, therefore, was
entitled to SEB. Her employer contended that because of her “for cause”
termination, she was not entitled to SEB. The court stated, “[a]n employee bears
the burden of proving, by a preponderance of the evidence that the injury resulted
6 in his or her inability to earn ninety percent (90%) or more of the average pre-
injury wage under the facts and circumstances of the individual case.” Grillette,
923 So.2d at 778.
The Grillette court found that Ms. Grillette stipulated she was terminated for
cause for violating company policy and not for any reason related to her light duty
work restrictions and, thus, was not entitled to SEB. “The fact that a job is no
longer available to Grillette due to her ‘for cause termination’ is no different from
her refusing to accept the job in the first place and, thus, terminates her entitlement
to SEB.” Grillette, 923 So.2d at 779. Additionally, in Fusilier v. Slick
Construction, 94-11 (La.App. 3 Cir. 6/1/94), 640 So.2d 788, the court held that a
worker, who had been released to light duty work and refused his employer’s offer
of light duty work at the same wage and hours, was not entitled to SEB.
The burden of proof as to his entitlement to SEB remained with Mr. Wiltz.
The WCJ correctly required Mr. Wiltz to present his case on the issue of
termination for cause. Thus, Mr. Wiltz’s second assignment of error is without
merit.
Mr. Wiltz then urges in his third assignment of error that, “[t]he workers’
compensation judge legally erred in even deciding the issue of cause.” Counsel for
Mr. Wiltz, despite the stipulation of counsel and the agreement of the WCJ to have
the issue of termination for cause tried before the WCJ, now argues that Miller v.
Christus St. Patrick Hospital, 12-370 (La.App. 3 Cir. 10/24/12), 100 So.3d 404,
writ denied, 12-2467 (La. 1/11/13), 107 So.3d 619, holds that the issue of
termination for cause must be tried to a state district court. Based on the particular
facts and circumstances of this case, we do not agree. In Cash Point Plantation
7 Equestrian Center, Inc. v. Shelton, 40-647, p. 5 (La.App. 2 Cir. 1/25/06), 920
So.2d 974, 977 (citations omitted), the court stated:
A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. A stipulation between the parties in a specific case is binding on the court when not in derogation of the law; it is the law of the case. A judicial confession may be revoked only on the ground of error of law.
Counsel for Mr. Wiltz and Todd’s stipulated that the WCJ would make the
determination of whether Mr. Wiltz was terminated for cause by violating Todd’s
company policy. The agreement of the parties allowing the WCJ to hear and
determine the issue of Mr. Wiltz’s termination for cause is a logical continuation of
the WCJ’s previous ruling on Mr. Wiltz’s right to SEB prior to his termination.
Moreover, the determination of whether Mr. Wiltz was terminated for cause is a
crucial and necessary step in order for the WCJ to determine whether Mr. Wiltz
was entitled to SEB post termination. It is well settled that termination for cause
deprives a claimant of the right to claim SEB. Grillette, 923 So.2d 774; Palmer v.
Alliance Compressors, 05-478 (La.App. 3 Cir. 11/2/05), 917 So.2d 510, writ
denied, 05-2440 (La. 3/24/06), 925 So.2d 1231. Thus, we find the stipulation is
binding on the parties and will not be disturbed on appeal. Mr. Wiltz’s third
assignment of error is without merit.
Pre-Termination Entitlement to SEB
At the hearing before the WCJ, Mr. Wiltz claimed that he was entitled to
pre-termination SEB, as his salary post-accident was less than the stipulated
$1,000.00 per week that he was earning prior to the January 15, 2009 accident.
“Factual findings in a workers’ compensation case are subject to the
manifest error or clearly wrong standard of appellate review.” Banks v. Indus.
Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La. 7/1/97), 696 So.2d 551, 556.
8 A claimant is entitled to SEB, under La.R.S. 23:1221(3)(a)(i), “[f]or injury
resulting in the employee’s inability to earn wages equal to ninety percent or more
of wages at time of injury[.]” In Banks, 696 So.2d at 566 (citation omitted), the
supreme court stated:
Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. . . .
Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs. . . must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job. . . .
However, if the employee’s inability to earn ninety percent of his pre-injury
wages is due to “circumstances” other than the work-related injury, he is not
entitled to SEB. Coleman v. Walter Indus., Inc./Jim Walter Homes, 10-1145, p. 9
(La.App. 1 Cir. 2/11/11), 56 So.3d 1258, 1262. The WCJ found based on the law
and the totality of the evidence, citing La.R.S. 23:1221(3) and Piossenot v. St.
Bernard Parish Sheriff’s Office, 09-2793, (La. 1/9/11), 56 So.3d 170, that Mr.
Wiltz failed to carry his burden of proof that he was entitled to any payment of
SEB from Todd’s.
The testimony at trial clearly supported the WCJ’s finding that Mr. Wiltz’s
pre-injury job as manager of three of Todd’s locations was within the classification
of light duty. The WCJ also found that Mr. Wiltz’s post injury and pre-termination
job as manager of the Pinhook location was also within the light duty classification.
The light duty classification was confirmed by the job analysis performed by the
vocational rehabilitation counselor and Mr. Wiltz’s own treating physician. Thus,
after March 24, 2009, Mr. Wiltz’s release to light duty was, in fact, a release to full
duty work at Todd’s.
9 Mr. Wiltz claimed he could not fulfill all of his previous job responsibilities,
as his job as a manager required him to lift heavy fifty-five gallon drums on a
regular basis. Mr. Wiltz was restricted from lifting more than fifty pounds, and the
drums were around four hundred pounds. Employees would lift the drums, place
the drums on dollies, and use dollies to move the drums when needed. The WCJ
found that Mr. Wiltz’s position as manager did not require him to engage in lifting,
tilting, or moving the fifty-five gallon drums, as there were other employees he
could instruct to place the heavy drums on the dolly and move drums as needed.
Additionally, the WCJ questioned Mr. Wiltz’s “veracity, in particular, his
testimony regarding the lifting of the fifty-five gallon drums.” Other managers at
Todd’s, including the new manager of the Pinhook location, testified that they
were not required to participate in moving the drums and would direct other
employees to do so. The WCJ concluded that Mr. Wiltz’s testimony lacked
credibility on this issue.
The record also clearly supports the WCJ’s finding that Mr. Wiltz failed to
meet his burden of proof that because of the change in his pay status, from
$1,000.00 per week to $18.00 per hour, he was no longer earning ninety percent of
his pre-injury wage post-accident and pre-termination. Prior to his injury, Mr.
Wiltz was paid a weekly salary of $1,000.00 based on his job of managing three of
Todd’s locations. Mr. Wiltz claimed that his job responsibilities and pay changed
after his injury. Shortly after his injury and prior to the surgery on his left eye,
however, Mr. Wiltz requested that he be allowed to manage only one location of
Todd’s due to the stress involved in managing multiple locations. Mr. Wiltz’s
request was granted by his employer, Todd Lemaire. Mr. Lemaire further testified
10 that several different employees had tried to manage multiple locations of Todd’s
and had been unsuccessful.
According to Mr. Lemaire, the change in Mr. Wiltz’s position was also
occasioned by the financial condition of Todd’s, which could no longer afford Mr.
Wiltz’s former managerial position due to a reduction in the number of employees.
Todd’s had filed for Chapter Eleven reorganization under the bankruptcy law. At
Mr. Wiltz’s request, his position was changed to manager of only the Pinhook
location of Todd’s with a pay rate of eighteen dollars per hour.
The Pinhook location of Todd’s is open six days a week from seven forty-
five a.m. to five p.m. The WCJ found that based on Mr. Wiltz’s testimony, he
“consistently worked less than forty hours a week.” He chose to begin his work
day “between eight-fifteen and eight-forty-five a.m., depending on the traffic and
leaves by three-fifteen to pick up his daughter.” Thus, the WCJ found factually
that Mr. Wiltz made a personal decision to work fewer hours, coming into work
late and leaving early to help care for his daughter. The WCJ also found that Mr.
Wiltz continued to wash cars on the side, thereby further supplementing his income.
The WCJ found and the record supports that Mr. Wiltz could have worked
forty-eight hours a week, which would have resulted in a gross wage of $936.00, a
figure in excess of ninety percent of his stipulated average weekly wage of
$1,000.00.2
The evidence in the record clearly supports the WCJ’s finding that when Mr.
Wiltz returned to work in March 2009, until his termination in November 2011, his
reduced hours had nothing to do with his inability to perform any of his duties.
2 Although, Dr. Moore restricted Mr. Wiltz to forty hours a week due to unstable hypertension, as will be discussed, his hypertension is not causally related to the work-related accident.
11 The circumstances of his reduced pay were a personal choice by Mr. Wiltz to work
reduced hours, which Todd’s allowed, and was unrelated to his work-related injury.
The WCJ found that this choice by Mr. Wiltz to work reduced hours was the cause
of his inability to earn ninety percent of his pre-injury wages. We affirm the
WCJ’s denial of any SEB to Mr. Wiltz from March 24, 2009, to his termination on
November 15, 2011. Coleman, 56 So.3d at 1262.
Post-Termination Entitlement to SEB
In Palmer v. Schooner Petroleum Services, 02-397 (La.App. 3 Cir. 12/27/02),
834 So.2d 642, writ denied, 03-367 (La. 4/21/03), 841 So.2d 802, a panel of this
court held that termination in and of itself, or without cause, does not destroy a
claimant’s entitlement to SEB. However, when an employee is terminated due to
the claimant’s actions or a violation of company policy, i.e., for cause, he is no
longer entitled to SEB. Grillette, 923 So.2d 774; Palmer v. Alliance Compressors,
917 So.2d 510.
The WCJ found that Mr. Wiltz was terminated for cause for violating Todd’s
company policy by allowing an employee under his supervision to drive a
customer’s vehicle without a driver’s license, causing a wreck and damage to the
customer’s vehicle. The WCJ also found that Mr. Wiltz was aware of the company
policy pertaining to unlicensed drivers and the manager’s responsibility for any
accident involving an unlicensed driver. Two prior incidents involving unlicensed
drivers occurred while Mr. Wiltz was a manager. In only one of the prior incidents
was he present on the site. Evidence in the record indicates that he was warned on
both prior occasions.
Mr. Wiltz testified that the policy was not in effect after the first accident, but
admitted that after the second accident, he was given a warning. The WCJ’s
12 finding that Mr. Wiltz was terminated for cause and, therefore, not entitled to SEB
is fully supported by the record and case law. We affirm the WCJ’s ruling that Mr.
Wiltz is not entitled to post-termination SEB dating from November 15, 2011, as he
was terminated for cause for violating a known company policy.
Analysis of the Fourth Assignment of Error – Right Eye Condition
In his fourth assignment of error, Mr. Wiltz argues the WCJ erred in finding
that Mr. Wiltz failed to meet his burden of proof that his right eye condition was
causally related to his work injury to his left eye.
Mr. Wiltz suffered a work injury to his left eye. He was later diagnosed with
glaucoma in his right eye for which he received medical treatment and surgery paid
for by Todd’s.
The WCJ reviewed the deposition of Dr. Hall, Mr. Wiltz’s treating physician
for his right eye. The WCJ recited verbatim Dr. Hall’s deposition testimony taken
October 28, 2010, in his reasons for ruling confirming that Dr. Hall was unable to
“state with any degree of medical certainty” that Mr. Wiltz’s glaucoma was related
to the work accident. Dr. Hall was asked, “what kind of things can cause pressure
change in the eye?” He responded, “[u]sually, it’s idiopathic. We don’t know.”
Mr. Wiltz had the burden to prove by a preponderance of the evidence that
the medical condition in his right eye is related to his work related accident
involving his left eye. To establish that a claimant is entitled to workers’
compensation benefits, claimant must prove by a preponderance of the evidence
that an accident occurred during the course and scope of his employment, the
accident caused his injuries, and the injury caused his disability. Ceasar v. Crispy
Cajun Rest., 94-30 (La.App. 3 Cir. 10/5/94), 643 So.2d 471, writ denied, 94-2736
(La. 1/6/95), 648 So.2d 931. “The employee has the burden of proving, by a
13 preponderance of the evidence, that the resulting disability is related to an on-the-
job injury.” Buxton v. Iowa Police Dep’t, 09-520, p. 12 (La. 10/20/09), 23 So.3d
275, 283.
Based on the evidence, we find no manifest error and affirm the WCJ’s
finding that Mr. Wiltz failed to carry his burden of proof that his right eye
condition was causally related to the work-related injury to his left eye. We also
affirm the WCJ’s award of a credit to Todd’s, pursuant to La.R.S. 23:1206, for all
costs of medical treatment to Mr. Wiltz’s right eye. Thus, Mr. Wiltz’s fourth
Analysis of the Fifth Assignment of Error - Hypertension
In the fifth assignment of error Mr. Wiltz argues the WCJ erred in finding
that he failed to meet his burden of proof that his claim for high blood pressure
and/or hypertension was related to the work related injury to his eye and his stress
on the job.
The WCJ’s reasons reflect that in support of this claim, Mr. Wiltz submitted
a November 30, 2010 letter sent by his counsel, Ms. Manecke, to his treating
physician for this condition, Dr. Moore. The letter stated in pertinent part:
It is my understanding that you recently restricted Mr. Wiltz from working more than forty hours a week due to unstable hypertension. Assuming prior to Mr. Wiltz’s job injury, he did not suffer with high blood pressure or require any treatment for his high blood pressure, please advise whether you believe that it is more likely than not that his hypertension is related to stress from his job and injury. And, it is checked yes.
The WCJ then conducted a review of Mr. Wiltz’s medical records, including
both records from Lafayette General Medical Center dated October 29, 1999, and a
June 17, 2009 report from Dr. Moore under the portion entitled “History of Present
Illness.” From these medical records, the WCJ determined that Mr. Wiltz had
14 previously been diagnosed with and treated for “elevated high blood pressure” in
October 1999. The WCJ also quoted directly from additional progress notes from
Lafayette General, which reflected that on January 19, 2009, under the heading
“History,” it stated, “[h]e has been told that his blood pressure is high. He has an
appointment in two days to see his family doctor about being put on medicine for
his high blood pressure.”
The notes of Dr. Moore on June 17, 2009, also confirm that Mr. Wiltz’s high
blood pressure/hypertension is not related to his work related injury and job stress.
Once again the WCJ quotes, “The hypertension is associated with family history.
The patient’s cardiovascular risk factors include obesity, BMI greater than
30kg/m2, physical inactivity. The patient’s identifiable causes of hypertension
include none.”
The WCJ then further addressed the letter of Ms. Manecke to Dr. Moore on
November 30, 2010, and stated, “The letter to Dr. Moore by Ms. Manecke asked
Dr. Moore to assume prior to Mr. Wiltz’s job injury, he did not suffer with high
blood pressure. This question is flawed and inaccurate based upon, at minimal, the
October 29, 1999, Lafayette General Medical Center ER Physician’s Assessment.”
Based on the WCJ’s reasons, the medical reports in evidence, and the
claimant’s burden of proof, we agree that Mr. Wiltz failed to meet his burden of
proof that his high blood pressure/hypertension was causally related to his on the
job accident. Thus, this assignment of error is without merit.
Analysis of the Sixth and Seventh Assignments of Error – Attorney fees and Costs
In the sixth and seventh assignments of error, Mr. Wiltz argues that the WCJ
erred in awarding only $8,000.00 in attorney fees and awarding only fifty percent
15 of Mr. Wiltz’s expenses, as Mr. Wiltz obtained the maximum penalties of
$8,000.00 under La.R.S. 23:1201(F).
The WCJ considered “the degree of skill and ability exercised by the
attorney, the amount of the claim, the amount recovered for the claimant and the
amount of time devoted to the case.” He concluded that $8,000.00 was an
appropriate amount based on the facts of the case and the results obtained. Mr.
Wiltz failed to prevail on any of the issues actually litigated, as Todd’s stipulated
to paying the maximum $8,000.00 penalty pre-trial.
Mr. Miller’s affidavit reflects that he spent fifty-seven hours on Mr. Wiltz’s
case prior to trial. He also seeks attorney fees for six hours post-trial for a total of
sixty-three hours at the hourly rate of $225.00. Ms. Manecke’s affidavit reflects
that she spent sixty-eight hours on Mr. Wiltz’s case prior to trial and another eight
hours in preparation of the post-trial memorandum for a total of seventy-six hours
at an hourly rate of $175.00. Together counsel for Mr. Wiltz sought a total of
$27,475.00 in attorney fees for the case.
Our supreme court, in McCarroll v. Airport Shuttle, Inc., 00-1123, p. 9 (La.
11/28/00), 773 So.2d 694, 700 (citations omitted), stated:
In our determination of the respective rights of the employee and the attorney to the statutory attorney fees, a persuasive factor is the methodology used to calculate the amount of the statutory attorney fees. The only limitation on the amount is the reasonableness of the fee awarded by the judge. The amount awarded rests within the discretion of the workers’ compensation judge, as long as that amount is supported by the record. Some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case.
“Awards of penalties and attorney’s fees in workers’ compensation are
essentially penal in nature, being imposed to discourage indifference and
16 undesirable conduct by employers and insurers. Although the Workers’
Compensation Act is to be liberally construed in regard to benefits, penal statutes
are to be strictly construed.” Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.
6/29/99), 737 So.2d 41, 46 (citation omitted). An appellate court reviews the
WCJ’s decision to award penalties and attorney fees using the manifest error
standard of review. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08),
980 So.2d 843.
Given our supreme court’s directive in McCarroll, we find no manifest error
in the WCJ’s award of $8,000.00 in statutory attorney fees. As previously
indicated, Mr. Wiltz did not prevail on any of his claims at trial and was awarded
$8,000.00 in statutory penalties based on a stipulation of the parties at the
beginning of trial. The parties also stipulated that the injury to Mr. Wiltz’s left eye
was work related and that his average weekly wage was $1,000.00.
As additional support for the WCJ’s holding on this issue, Todd’s urges on
appeal that testimony at trial questioned the basis of an affidavit submitted by of
one of the attorneys for Mr. Wiltz. Counsel for Todd’s sought to strike the
affidavit as not based on counsel’s personal knowledge, but on a review by
counsel’s secretary. In addition, Mr. Wiltz’s counsel was unable to state whether
there were duplicate time estimates for work performed by co-counsel.
The WCJ is allowed great discretion in the decision to award attorney fees.
Frank v. City of Lake Charles, 04-820 (La.App. 3 Cir. 11/10/04), 887 So.2d 679.
The supreme court in McCarroll, however, does require that the attorney fee
awarded be reasonable. Other panels in this circuit have affirmed awards where
$8,000.00 in statutory penalties were awarded, and counsel was awarded amounts
ranging from $5,000.00 to $10,000.00 in attorney fees. Mitchell v. Artcrete, Inc.,
17 09-492 (La.App. 3 Cir. 12/9/09), 24 So.3d 1000; Burnette v. Village of Esterwood,
09-680 (La.App. 3 Cir. 12/9/09), 25 So.3d 997.
The WCJ’s reasons clearly considered the directive given by the supreme
court in McCarroll in its determination that the award of $8,000.00 in attorney fees
was reasonable in this case. We agree and affirm the judgment of the WCJ.
Assessment of Costs
Mr. Wiltz contends the WCJ erred in only assessing fifty percent of the
claimant’s costs to Todd’s in the amount of $996.49 and seeks the full amount of
costs of $1,992.98. The decision of the WCJ in awarding costs is governed
pursuant to Section 6609 of the Workers’ Compensation Hearing Rules and directs
that the awarding of costs shall also be governed by La.Code Civ.P. art. 1920.
Louisiana Code of Civil Procedure Article 1920 allows a trial court to “render
judgment for costs, or any part thereof, against any party, as it may consider
equitable.” Thus, the determination of the award of costs is within the sole
discretion of the trial court and must not be disturbed on appeal unless there is an
abuse of that discretion. Middlebrooks v. Int’l Indem., 95-1364 (La.App. 3 Cir.
3/6/96), 670 So.2d 740. We find no abuse of discretion by the WCJ in ruling that
each party was to bear fifty percent of the costs.
DISPOSITION
For the foregoing reasons, we affirm the judgment in all respects. The costs
of this appeal are assessed to John Wiltz.