Liggio v. Popeye's Diversified Foods & Seasoning

113 So. 3d 392, 12 La.App. 5 Cir. 587, 2013 WL 1287367, 2013 La. App. LEXIS 603
CourtLouisiana Court of Appeal
DecidedMarch 27, 2013
DocketNo. 12-CA-587
StatusPublished
Cited by1 cases

This text of 113 So. 3d 392 (Liggio v. Popeye's Diversified Foods & Seasoning) 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
Liggio v. Popeye's Diversified Foods & Seasoning, 113 So. 3d 392, 12 La.App. 5 Cir. 587, 2013 WL 1287367, 2013 La. App. LEXIS 603 (La. Ct. App. 2013).

Opinion

ROBERT A. CHAISSON, Judge.

1 gThis is an appeal by Louisiana Workers’ Compensation Corporation (LWCC) and Popeye’s Diversified Foods and Seasonings, Inc., from a judgment awarding Arron J. Liggio workers’ compensation benefits. For the following reasons, we amend the judgment to eliminate the awards for penalties, attorney fees, and future medical expenses. In all other respects, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

Arron Liggio was hired in late 2007 by Popeye’s Diversified Foods and Seasonings, Inc., to work as a welder and fabricator in a division of the company involved in the building and operation of racing boats. The job required heavy lifting on occasions, as well as frequent bending and stooping. Mr. Liggio claimed to have been injured on December 20, 2009, when the boat on which he was working was being moved by trailer. Specifically, he claims that while inserting bilge plugs in the transom of the boat, he was struck on his back by the boat rudder and knocked to the ground, falling on his shoulder. No one else witnessed the accident.

|oMr. Liggio testified that he did not immediately inform his supervisor, Scott Barnhardt, of the incident, but did do so after a lunch break. Mr. Barnhardt testified that he was never told of the accident. However, Daniel Suazo, a co-worker, testified that he heard Mr. Liggio tell Mr. Barnhardt that he was struck by the rudder. Mr. Liggio’s wife testified that she saw bruises on his back when he returned home later in the day.

Mr. Liggio continued working at the job until January 28, 2010. He was fired at that time for allegedly failing to report to work. He received unemployment compensation beginning on March 1, 2010, and was still receiving these benefits at the time of trial.

Mr. Liggio first sought medical treatment for his alleged injury on April 16, 2010, after consulting counsel. On that date, he was seen at the Louisiana Primary Care Consultants office by Dr. Ash-faq Qureshi. A report of this visit, signed by Dr. Norman Ott, the director of the facility, states the clinical impression as lumbar and left buttock trauma from the rudder, with pain radiating into the right leg. The report also notes left shoulder and upper back and neck pain and strain, due to a forward slip-and-fall on the left shoulder. After a second visit on May 21, 2010, the impression was “headaches twice a week, cervical strain, lumbar strain, left shoulder symptoms-essentially all the same,” with tingling of an unknown origin. An MRI was recommended.

The MRI was performed six months later, on December 21, 2010, at the East Jefferson Imaging Center at Dr. Ott’s request. Dr. Daniel Johnson, Jr. interpreted the results as a “subtle central posterior herniation of the L4-5 disc.” On January 17, 2011, Mr. Liggio was seen at the office of Dr. Allen Johnson by Dr. Johnson’s physician’s assistant, Paul Piccione. The impression of that visit was chronic neck pain and chronic back pain with L4-5 herniation. After a second Lvisit to that office on February 23, 2011, Dr. Johnson gave an April 18, 2011, opinion as follows: “[biased on his history, physical findings and the mechanism of injury, it is my opinion that the herniated lumbar disc by MRI dated [394]*39412/21/2010 is more probably than not related to the work injury of December 20, 2009.” As to work restrictions, Dr. Johnson said he “would limit him to light duty, avoid repetitive bending or twisting at the waist, carrying more than 20 pounds, [and] prolonged sitting or standing without changing positions [every 25 to 30 minutes].”

The defendants requested an independent medical examination. Dr. Andrew Todd, a spinal surgeon, examined Mr. Lig-gio on April 18, 2011, and reviewed all of his records, including the December 20, 2010 MRI. His opinion as to the MRI was that, although it showed a slight bulge, it did not indicate herniation, but rather only a minor irregularity which would not be unusual for someone of Mr. Liggio’s age. His extensive physical examination revealed no objective evidence of any problems and was considered to be normal. Dr. Todd did not find any objective evidence of problems which would warrant placing limitations on Mr. Liggio’s activities. He further noted that if the complaints of pain were legitimate, some restrictions on lifting and bending might be in order; but, he would not consider such restrictions over the long term. As to causation, he said that it would have been necessary to have had an MRI prior to the accident to compare to the one done after the accident, to see if they differed. Otherwise, he could not say what effect the accident might have had.

Based on the above evidence and testimony, the Office of Workers’ Compensation (OWC) judge initially ruled that although there had been an accident on December 20, 2009, Mr. Liggio failed to prove that his subsequently diagnosed problems were causally related to the accident. She therefore denied benefits. Mr. Liggio filed a motion for a new trial, which was granted solely for |sre-argument. After re-argument, the judge reversed herself, found that the injuries were causally related to the accident, and awarded benefits. She ordered payment of Supplemental Earnings Benefits (SEB) for all times when claimant was not receiving unemployment benefits, as well as all medical expenses related to the injury. She further found that defendants had not reasonably controverted the claim and awarded $8,000 in penalties and $8,000 in attorney fees. This appeal followed.

LAW AND ANALYSIS

The defendants’ first four assignments of error all raise the issue of whether Mr. Liggio proved the occurrence of an accident with compensable injuries. In workers’ compensation cases, as in all other cases, the standard of review of factual matters is manifest error. In Woodruvi v. Olive Garden Restaurant, 99-130 (La.App. 5 Cir. 5/19/99), 735 So.2d 911, this court further explained that even though the appellate court believes that had it been sitting as the trier of fact it would have made different findings, as long as the findings of the actual trier of fact are based upon reasonable credibility determinations and reasonable inferences of fact, such findings may not be set aside on appeal.

Here, the OWC judge apparently found Mr. Liggio’s version of the accident credible. The fact that Mr. Liggio’s wife saw bruises on his back the afternoon of the incident corroborated that he was struck by something. There was further corroboration in the testimony of Mr. Sua-zo, who said that he heard Mr. Liggio report the accident to Mr. Barnhardt on the day it allegedly happened. Although Mr. Barnhardt denied that this conversation took place, the OWS judge found otherwise. These are clearly reasonable [395]*395credibility determinations, and as such they may not be set aside.

|fiThere is similarly conflicting evidence as to whether any injury immediately resulted from the accident. Mr. Liggio testified that he had no pains in his back before the accident, but did afterward. He further testified that he did not go to a doctor immediately or shortly after the accident because of financial constraints and because he was afraid it might jeopardize his job. He said that this latter apprehension arose because when he told Mr. Barnhardt about the accident, Mr. Barnhardt said “welcome to the boat business,” and that he had to “suck it up.” The defendants put on evidence to show that Mr. Liggio’s medical insurance would have paid for any medical treatments, except for a small co-payment.

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113 So. 3d 392, 12 La.App. 5 Cir. 587, 2013 WL 1287367, 2013 La. App. LEXIS 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liggio-v-popeyes-diversified-foods-seasoning-lactapp-2013.