STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 04-1404
MARY D. BRUMLEY
VERSUS
NANTACHIE OIL COMPANY
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 2 PARISH OF RAPIDES, NO. 02-04813 JAMES L. BRADDOCK, WORKERS COMPENSATION JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Oswald A. Decuir, and James T. Genovese, Judges.
AFFIRMED.
George Arthur Flournoy Flournoy, Doggett & Losavio P. O. Box 1270 Alexandria, LA 71309-1270 (318) 487-9858 Counsel for Plaintiff Appellant: Mary D. Brumley
Paul Eric Harrison Rabalais, Unland & Lorio 5100 Village Walk, Ste 300 Covington, LA 70433 (985) 893-9900 Counsel for Defendant Appellee: Nantachie Oil Company Max K. Jones, Jr. Rabalais, Unland, etc. 5100 Village Walk, #300 Covington, LA 70433 (985) 893-9900 Counsel for Defendant Appellee: Nantachie Oil Company SAUNDERS, J.
The issues on appeal to this court arise from plaintiff’s appeal of the hearing
officer’s ruling in this worker’s compensation case. Plaintiff argues that the hearing
officer erred in failing to award supplemental earnings benefits (hereinafter referred
to as “SEB”), concluding that temporary total disability benefits (hereinafter referred
to as “TTD”) were paid for August 6, 2001, and failing to sanction defendant for
untimely payment of certain medical expenses. We affirm.
FACTS
On August 6, 2001, plaintiff was injured when she was pinned against a steel
railing by a vehicle driven by a customer who was trying to leave the premises. The
customer then drove over plaintiff’s left foot and she suffered a fibula fracture with
displacement of the ankle joint. Surgery was performed on the ankle and a plate was
inserted for stability. Shortly thereafter, plaintiff was released to return to work
without restriction.
Prior to the accident, she earned $225.00 per week as a gas station attendant
and was responsible for pumping gas, checking tire pressure and fluid levels,
sweeping, mopping, and stocking and shelving auto parts. Plaintiff stated that she
could perform all of these tasks before her injury but that they caused pain when she
performed them after she was released to work. She told her doctor about these
troubles but no follow up treatment was ordered, nor was any requested by plaintiff.
Dr. Garrison opined that plaintiff’s ankle healed properly and noted that there was no
evidence of weakness or misalignment. In fact, plaintiff eventually informed her
doctor that the problems lessened and reported a substantial decrease in both the pain
and swelling associated with the injury. Despite being released to work without restriction, plaintiff only earns $175.00
for working thirty hours a week and claims that she experiences significant pain when
performing her duties. She further alleges that special allowances have to be made
for her to be able to work on this limited basis. For example, her nephew helps out
when she is too tired or in too much pain to work and she is allowed to take breaks
to elevate her foot when needed. This testimony is corroborated by her husband and
sister-employer.
PROCEDURAL HISTORY
Claimant filed a Disputed Claim for Compensation with the Office of Worker’s
Compensation. She alleged the existence of an occupational disease and numerous
other general complaints against her employer and the carrier. A hearing was held
and, on May 24, 2004, judgment was rendered denying plaintiff’s claim for
supplemental earnings benefits, imposing penalties in the amount of $4,450.00 and
attorney fees in the amount of $5,000.00 for untimely payment of indemnity benefits
and non-payment of medication expenses, denying all other claims for penalties and
attorney fees, ordering that plaintiff be reimbursed $75.97 for medication expenses,
and holding defendant responsible for all reasonable and necessary medical travel
expenses. Plaintiff then filed this appeal.
ASSIGNMENTS OF ERROR
1) The hearing officer erred, as a matter of law, by ignoring the lay testimony of plaintiff, her husband and her employer, concerning the extent of plaintiff’s disabling pain, and erroneously concluded that plaintiff was not entitled to SEB.
2) Because defendant did no investigation and had no reasonable basis to controvert plaintiff’s entitlement to benefits, the hearing officer erred in refusing to award benefits and to assess 23:1201 sanctions for the
2 nonpayment of indemnity benefits on August 6, 2001 and for the untimely or non-payment of certain medical expenses.
LAW AND ANALYSIS
Findings of the trial court are reviewable on appeal, and the appellate standard
of review has been clearly established. A trial judge’s findings of fact will not be
disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State,
through Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993). “Absent ‘manifest error’
or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be
disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.
1990). “If the trial court or jury’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.” Id. at 1112
ASSIGNMENT OF ERROR NUMBER ONE
Plaintiff points this court to Hopes v. Domtar, 627 So.2d 676 (La.App. 3 Cir.
1993) in support of her argument that a plaintiff’s uncontradicted testimony regarding
the existence of a disability may be sufficient to satisfy the burden required for an
award of SEB. We acknowledge that the cited case is good law and does stand for
this proposition; however, based upon the record before us, we find that the case sub
judice is distinguishable from Hopes.
In that case, the treating physician limited the type of work that plaintiff could
perform. Id. No unrestricted release was issued. Id. Here, on the other hand,
plaintiff’s physician released her to return to work without restriction. Given the
3 evidence of record, we conclude that the denial of SEB was not an abuse of
discretion. While it is true that plaintiff, her husband, and her sister, testified that
plaintiff continues to suffer pain and swelling in her ankle, this testimony is
contradicted by Dr. Garrison’s release to work and plaintiff’s statements regarding
the improvement of her condition. Plaintiff told Dr. Garrison that her condition had
significantly improved and she did not request further treatment. Dr. Garrison is
apparently of the same opinion as he never ordered further treatment for plaintiff. In
fact, he concluded that plaintiff’s injuries responded well to therapy, were sufficiently
healed, and would not limit her ability to work. Under these circumstances we cannot
say that the hearing officer committed manifest error in failing to award SEB benefits.
Plaintiff further argues that defendant offered no evidence that she was capable
of earning 90% of her pre-accident wages; therefore, she is entitled to SEB. We have
already concluded, however, that the hearing officer did not commit manifest error
in finding that plaintiff did not meet her burden of establishing a disability. Because
this burden was not satisfied, the burden of proving that plaintiff could earn 90% of
her pre-accident wages was never shifted to defendant.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 04-1404
MARY D. BRUMLEY
VERSUS
NANTACHIE OIL COMPANY
**********
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 2 PARISH OF RAPIDES, NO. 02-04813 JAMES L. BRADDOCK, WORKERS COMPENSATION JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Oswald A. Decuir, and James T. Genovese, Judges.
AFFIRMED.
George Arthur Flournoy Flournoy, Doggett & Losavio P. O. Box 1270 Alexandria, LA 71309-1270 (318) 487-9858 Counsel for Plaintiff Appellant: Mary D. Brumley
Paul Eric Harrison Rabalais, Unland & Lorio 5100 Village Walk, Ste 300 Covington, LA 70433 (985) 893-9900 Counsel for Defendant Appellee: Nantachie Oil Company Max K. Jones, Jr. Rabalais, Unland, etc. 5100 Village Walk, #300 Covington, LA 70433 (985) 893-9900 Counsel for Defendant Appellee: Nantachie Oil Company SAUNDERS, J.
The issues on appeal to this court arise from plaintiff’s appeal of the hearing
officer’s ruling in this worker’s compensation case. Plaintiff argues that the hearing
officer erred in failing to award supplemental earnings benefits (hereinafter referred
to as “SEB”), concluding that temporary total disability benefits (hereinafter referred
to as “TTD”) were paid for August 6, 2001, and failing to sanction defendant for
untimely payment of certain medical expenses. We affirm.
FACTS
On August 6, 2001, plaintiff was injured when she was pinned against a steel
railing by a vehicle driven by a customer who was trying to leave the premises. The
customer then drove over plaintiff’s left foot and she suffered a fibula fracture with
displacement of the ankle joint. Surgery was performed on the ankle and a plate was
inserted for stability. Shortly thereafter, plaintiff was released to return to work
without restriction.
Prior to the accident, she earned $225.00 per week as a gas station attendant
and was responsible for pumping gas, checking tire pressure and fluid levels,
sweeping, mopping, and stocking and shelving auto parts. Plaintiff stated that she
could perform all of these tasks before her injury but that they caused pain when she
performed them after she was released to work. She told her doctor about these
troubles but no follow up treatment was ordered, nor was any requested by plaintiff.
Dr. Garrison opined that plaintiff’s ankle healed properly and noted that there was no
evidence of weakness or misalignment. In fact, plaintiff eventually informed her
doctor that the problems lessened and reported a substantial decrease in both the pain
and swelling associated with the injury. Despite being released to work without restriction, plaintiff only earns $175.00
for working thirty hours a week and claims that she experiences significant pain when
performing her duties. She further alleges that special allowances have to be made
for her to be able to work on this limited basis. For example, her nephew helps out
when she is too tired or in too much pain to work and she is allowed to take breaks
to elevate her foot when needed. This testimony is corroborated by her husband and
sister-employer.
PROCEDURAL HISTORY
Claimant filed a Disputed Claim for Compensation with the Office of Worker’s
Compensation. She alleged the existence of an occupational disease and numerous
other general complaints against her employer and the carrier. A hearing was held
and, on May 24, 2004, judgment was rendered denying plaintiff’s claim for
supplemental earnings benefits, imposing penalties in the amount of $4,450.00 and
attorney fees in the amount of $5,000.00 for untimely payment of indemnity benefits
and non-payment of medication expenses, denying all other claims for penalties and
attorney fees, ordering that plaintiff be reimbursed $75.97 for medication expenses,
and holding defendant responsible for all reasonable and necessary medical travel
expenses. Plaintiff then filed this appeal.
ASSIGNMENTS OF ERROR
1) The hearing officer erred, as a matter of law, by ignoring the lay testimony of plaintiff, her husband and her employer, concerning the extent of plaintiff’s disabling pain, and erroneously concluded that plaintiff was not entitled to SEB.
2) Because defendant did no investigation and had no reasonable basis to controvert plaintiff’s entitlement to benefits, the hearing officer erred in refusing to award benefits and to assess 23:1201 sanctions for the
2 nonpayment of indemnity benefits on August 6, 2001 and for the untimely or non-payment of certain medical expenses.
LAW AND ANALYSIS
Findings of the trial court are reviewable on appeal, and the appellate standard
of review has been clearly established. A trial judge’s findings of fact will not be
disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State,
through Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993). “Absent ‘manifest error’
or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be
disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.
1990). “If the trial court or jury’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.” Id. at 1112
ASSIGNMENT OF ERROR NUMBER ONE
Plaintiff points this court to Hopes v. Domtar, 627 So.2d 676 (La.App. 3 Cir.
1993) in support of her argument that a plaintiff’s uncontradicted testimony regarding
the existence of a disability may be sufficient to satisfy the burden required for an
award of SEB. We acknowledge that the cited case is good law and does stand for
this proposition; however, based upon the record before us, we find that the case sub
judice is distinguishable from Hopes.
In that case, the treating physician limited the type of work that plaintiff could
perform. Id. No unrestricted release was issued. Id. Here, on the other hand,
plaintiff’s physician released her to return to work without restriction. Given the
3 evidence of record, we conclude that the denial of SEB was not an abuse of
discretion. While it is true that plaintiff, her husband, and her sister, testified that
plaintiff continues to suffer pain and swelling in her ankle, this testimony is
contradicted by Dr. Garrison’s release to work and plaintiff’s statements regarding
the improvement of her condition. Plaintiff told Dr. Garrison that her condition had
significantly improved and she did not request further treatment. Dr. Garrison is
apparently of the same opinion as he never ordered further treatment for plaintiff. In
fact, he concluded that plaintiff’s injuries responded well to therapy, were sufficiently
healed, and would not limit her ability to work. Under these circumstances we cannot
say that the hearing officer committed manifest error in failing to award SEB benefits.
Plaintiff further argues that defendant offered no evidence that she was capable
of earning 90% of her pre-accident wages; therefore, she is entitled to SEB. We have
already concluded, however, that the hearing officer did not commit manifest error
in finding that plaintiff did not meet her burden of establishing a disability. Because
this burden was not satisfied, the burden of proving that plaintiff could earn 90% of
her pre-accident wages was never shifted to defendant. This argument, therefore, is
rendered moot by our determination regarding the existence of a disability. This
assignment lacks merit. The ruling of the hearing officer is affirmed.
ASSIGNMENT OF ERROR NUMBER TWO
In this assignment, plaintiff urges two errors. First, she argues that she was not
paid temporary total disability benefits for August 6, 2001, the date of the accident.
Second, plaintiff claims that certain medical expenses were not paid by defendant in
a timely fashion. We will first address the alleged non-payment of TTD benefits.
4 Plaintiff argues that, based upon defendant’s payment records, it is evident that
no TTD benefits were paid for the date of the accident. The hearing officer
concluded that payments were, in fact, paid for that date. We agree. While it is true
that defendant’s records indicate that payment was made for the period of August 7,
2001 through August 13, 2001, the amount of compensation paid for this week
indicates that benefits were, indeed, paid. The injury occurred on the morning of
Monday August 6, 2001. On September 20, 2001, plaintiff was paid $150.01 for the
week during which the accident occurred. Likewise, she was paid $300.02 for the
two week period of August 14, through August 27. It is important to note that
plaintiff concedes that $300.02 is the proper compensation for two weeks as she has
not challenged this issue.
The amount paid for the two week period following the accident is exactly
twice the amount paid for the one week during which the accident occurred. If the
accident date was not included in the amount paid for that week, the sum paid would
have been less than $150.01 as that was the amount paid for one full week of benefits.
Accordingly, we find no manifest error in the hearing officer’s conclusion that the
benefits paid for the accident week included August 6, 2001. This ruling by the
hearing officer is affirmed.
Plaintiff also claims that the hearing officer erred in failing to impose sanctions
for defendants untimely payment of certain medical expenses. Plaintiff argues that
defendant failed to timely pay two medical bills, one from Professional Anesthesia
and one from Rapides General E.R. physicians. The hearing officer noted that there
was no evidence indicating when these bills were forwarded to defendant. As such,
5 it was impossible to determine whether they were paid after sixty days had elapsed
as required for penalties and attorney fees. We find no manifest error in this
determination. Plaintiff bears the burden of establishing that these bills were not paid
within sixty days of receipt and we find no evidence of record that could establish the
date on which the bills were forwarded to defendant. Accordingly, we find no
manifest error in the hearing officer’s failure to impose penalties and attorney fees for
the untimely payment of these expenses. This ruling by the hearing officer is
CONCLUSION
The judgment rendered by the hearing officer is affirmed. All costs are
assessed against plaintiff.