Julien v. Dynamic Industries, Inc.

52 So. 3d 174, 10 La.App. 3 Cir. 520, 2010 La. App. LEXIS 1496, 2010 WL 4321864
Louisiana Court of Appeal·Decided November 3, 2010·No. No. 10-520·Published·Cited by 2 cases

Opinion

CHATELAIN, Judge.*

hThe defendants, Dynamic Industries, Inc. (Dynamic) and Louisiana Workers’ Compensation Corporation (LWCC), appeal a judgment the workers’ compensation judge (WCJ) rendered in favor of its employee, Harold Julien (Julien). Julien answers the appeal seeking additional attorney fees and costs for having to defend the appeal. For the following reasons, we affirm the ruling of the WCJ and dismiss Julien’s answer to appeal as untimely.

FACTS AND PROCEDURAL HISTORY

Julien worked as an equipment operator for Dynamic at its west yard at the Port of Iberia where Dynamic built offshore oil and gas platforms. Julien’s primary duties entailed operating cranes and cherry pickers to transport equipment and material from the yard to the dock area to be loaded onto barges by the riggers.1 Occasionally, however, if it was a slow day and there was nothing for him to move with his cherry picker, Julien’s supervisor would ask him to “give the riggers a helping hand.”

July 23, 2007 had been a slow day for the operators, and Julien’s supervisor had asked him to help the riggers, who were [176] short-handed that day, take a gangplank off of a barge so that the barge could be moved. The gangplank was too heavy to be manually moved. Julien’s supervisor and three or four riggers were on the barge. Julien and a rigger were on the gangplank rigging it up to a cherry picker with shackles and chains when the gangplank came apart from the barge causing Julien and the rigger to fall “out of the air backwards” twelve to fifteen feet to the ground. They landed on top of a pipe used as a hand railing. Rocks and gravel covered the ground where they fell. An ambulance took Julien to the emergency room at |2Pauterive Hospital for treatment. Later, Dynamic sent Julien to see Dr. Olga Reavill, its company doctor. Ju-lien testified that on one particular occasion a company van had picked him up for an appointment with Dr. Reavill. On the way home from the appointment, Julien was told that he was being terminated for not returning to work.

Julien was initially represented by an attorney who filed an LS-203 “Claim for Compensation” with the U.S. Department of Labor on September 13, 2007, asserting a claim under the Longshore & Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-944 (the LHWCA or the Long-shore Act). Thereafter, Julien discharged his original attorney and retained his current counsel of record. Believing that the LHWCA did not cover Julien’s claim, current counsel filed a 1008 Disputed Claim for Compensation on July 10, 2008, seeking benefits pursuant to the Louisiana Workers’ Compensation Act, La.R.S. 23:1021-1415 (the LWCA or the State Act) on Julien’s behalf. The defendants responded to Julien’s claim by filing a declinatory exception of lack of subject matter jurisdiction, contending that the Longshore Act covered the matter. In the meantime, Ju-lien filed a motion to approve his request for Temporary Total Disability Benefits (TTDs). The defendants’ exception and Julien’s motion came for hearing before the WCJ on October 24, 2008.2 By judgment dated December 16, 2008, the WCJ denied Julien’s motion for TTDs and the defendants’ declinatory exception. The judgment directed that “any benefits owed are to be paid under the State ... Act and not the Longshore ... Act.” Thereafter, the defendants filed an answer and general denial; they sought neither supervisory nor appellate review of the denial of their exception of lack of subject matter jurisdiction.

|sThe matter was tried on October 14, 2009. The only witnesses to testify were Julien and his wife. Following the presentation of testimony, exhibits, and arguments of counsel, the WCJ orally ruled as follows: (1) that medical treatment for a lumbar strain and cracked ribs be provided to Julien pursuant to the State Act; (2) that Julien’s request for a diskogram is denied; (3) that TTDs be reinstated back to the date Julien was terminated with interest on any past due amounts and that a dollar-for-dollar credit be allowed for any overpayments due to the prior TTD payments made pursuant to the Longshore Act; (4) that no penalties or attorney fees be awarded for the discontinuance of indemnity benefits; (5) that there be a $4,000.00 penalty and a $4,000.00 attorney fee assessed against the employer for failure to approve and/or timely reimburse Julien for prescription medications; (6) that Julien undergo a functional capacity evaluation (FCE) as soon as possible and that the insurer pay for all necessary medication for Julien’s high blood pressure until the FCE is completed; (7) that Ju-[177] lien’s counsel be awarded $321.81 for expenses incurred in obtaining certified medical records; and (8) that the insurer pay for the medical treatment outlined in Plaintiff’s Exhibits 24, 25, and 26 pursuant to the Louisiana Fee Schedule. The WCJ signed a written judgment on October 30, 2009.

The defendants timely appealed and are now before this court asserting two errors. First, they contend that the WCJ erred in failing to find that Julien’s claim fell within the jurisdiction of the Longshore Act. Next, they contend that the WCJ erred in awarding Julien compensation and medical benefits.3

^DISCUSSION

This court discussed the standard of review to be employed in workers’ compensation cases in 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 [fact-finder’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). 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.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

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Julien v. Dynamic Industries, Inc., 52 So. 3d 174, 10 La.App. 3 Cir. 520, 2010 La. App. LEXIS 1496, 2010 WL 4321864 (La. Ct. App. 2010).

52 So. 3d 174 (Julien v. Dynamic Industries, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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