Michael Newell v. United Bilt Homes, Inc.

• Court: Louisiana Court of Appeal
• Decided: September 29, 2004
• Docket: WCA-0004-0202
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

WCA 04-202

MICHAEL NEWELL

VERSUS

UNITED BILT HOMES, INC.

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APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 00-08924 CHARLOTTE A. L. BUSHNELL, WORKERS' COMPENSATION JUDGE

JOHN D. SAUNDERS JUDGE

Court composed of John D. Saunders, Michael G. Sullivan, and Elizabeth A. Pickett, Judges.

Sullivan, J., concurs in the result.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

H. Douglas Hunter GUGLIELMO, LOPEZ, ET AL P. O. Drawer 1329 Opelousas, LA 70571-1329 (337) 948-8201 Counsel for: Secondary Defendant/Appellant/Appellee United Bilt Homes, Inc.

Robert Thomas Jacques, Jr. Attorney at Law P. O. Box 1883 Lake Charles, LA 70602 (337) 433-4674 Counsel for: Plaintiff/Appellant/Appellee Michael Newell SAUNDERS, J.

The issues on appeal to this court arise from a dispute about worker’s

compensation benefits. Michael Newell, a resident of Texas, was working on a

construction project in Starks, Louisiana when he was injured on the jobsite. Mr.

Newell has not returned to work and the parties dispute the availability of Louisiana

worker’s compensation benefits and whether or not Mr. Newell is disabled.

FACTS

Michael Newell, a resident of Silsbee, Texas, sustained an injury during the

course and scope of his employment when he slipped off of a step ladder and fell

backwards. Mr. Newell was in the process of installing sheet rock when the accident

occurred. After falling, he finished installing the piece of sheet rock that he had been

working with and called his employer, United Bilt Homes, Inc. (hereinafter referred

to as “United”), to report the incident. United is registered with the Louisiana

Secretary of State, has offices in Shreveport and Baton Rouge, and maintains a bank

account in Shreveport. Mr. Newell attempted to return to work in the days following

the accident; however, he ultimately stopped working and sought medical attention.

Mr. Newell was treated initially at St. Elizabeth Hospital for pain in the left side of

his neck and left shoulder. He was then treated on a follow-up basis by his family

physician, Dr. Joseph Finley. Subsequently, the Louisiana United Business

Association (hereinafter referred to as “LUBA”) had Mr. Newell examined by an

orthopaedic surgeon, Dr. Curtis Thorpe, and a neurosurgeon, Dr. John Raggio. A

cervical MRI, which revealed multilevel degenerative disc dessication, was

performed on August 9, 2001 and Dr. Raggio recommended physical therapy after

seeing Mr. Newell on August 16, 2001. Mr. Newell was next seen by a neurosurgeon, Dr. Ian Angelle, who recommended an MRI of the left shoulder and

referral to both an orthopaedic surgeon specializing in the shoulder region and a pain

clinic. Mr. Newell was treated for some time by Dr. Dumitru, a pain management

specialist, before visiting another neurosurgeon, Dr. Luiz DeAraujo. Dr. DeAraujo

ordered a cervical fusion and restricted Mr. Newell to purely sedentary types of work.

PROCEDURAL HISTORY

As a result of the September 18, 2000 accident, Mr. Newell filed a claim for

Louisiana Worker’s Compensation on November 13, 2000. United answered

admitting that Mr. Newell was an employee at the time of the accident and denying

that an injury was sustained. The matter was tried on February 27, 2002. Judgment

was rendered on May 17, 2002 providing that Mr. Newell was entitled to Louisiana

Worker’s Compensation benefits, penalties of $2,000, and attorney fees of

$5, 000.

United moved for a new trial on May 29, 2002 which was granted on

September 11, 2002. Subsequently, on March 21, 2003, judgment was rendered

vacating the previous judgment and providing that Mr. Newell was entitled to

“Worker’s Compensation benefits,” but not “disability benefits,” penalties, or

attorney fees. Mr. Newell then moved for a new trial on March 26, 2003. That

motion was denied on November 4, 2003. Both parties have appealed.

PLAINTIFF’S ASSIGMENTS OF ERROR

1) The worker’s compensation judge committed manifest error and was clearly wrong in failing to award worker’s compensation benefits for temporary total disability.

2) The worker’s compensation judge committed manifest error and was clearly wrong in failing to grant claimant a new trial.

2 3) The worker’s compensation judge committed manifest error and was clearly wrong in failing to award claimant penalties and attorney fees.

DEFENDANT’S ASSIGNMENT OF ERROR

1) The worker’s compensation judge committed manifest error in allowing Michael Newell, a Texas resident, employed by a Texas company, to receive Louisiana worker’s compensation benefits.

LAW AND ANALYSIS

The standard of review for findings of the trial court has been clearly

established in this circuit. A court of appeal may not set aside a judge’s factual

findings unless that finding was manifestly erroneous or clearly wrong. Stobart v.

State, through Dep’t. Of Transp. & Dev., 617 So.2d 880 (La.1993). This court has

also concluded that interpretations of choice of law determinations are reviewed to

determine if the trial court committed an error of law. Foshee v. Torch Operating

Co., 99-1863 (La.App. 3 Cir. 5/17/00), 763 So.2d 82, writ denied, 00-23014 (La.

10/27/00), 772 So.2d 658. Finally, the applicable standard of review for a trial

court’s ruling on a motion for new trial is abuse of discretion. Boudreaux v.

Wimberley, 02-1064 (La.App. 3 Cir. 4/2/03), 843 So.2d 519, writ denied, 03-1251

(La. 9/5/03), 852 So.2d 1037. Because United’s assignment of error involves a

choice of law issue it will be addressed first.

UNITED’S ASSIGNMENT OF ERROR

United’s only assignment of error concerns the trial court’s finding that

Louisiana law applies to the dispute and allows Mr. Newell, a Texas domiciliary, to

recover Louisiana worker’s compensation benefits. United correctly asserts that Civil

Code article 3544 is controlling because this case involves “issues of loss distribution

and financial protection.” La.Civ.Code art. 3543 cmt (a); Foshee, 763 So.2d 82.

3 United alleges that both parties are domiciled in Texas; therefore, Texas law should

be applied pursuant to Article 3544(1). This contention is without merit. Defendant

corporation is registered with the Louisiana Secretary of State, paid plaintiff with a

check drawn from a Louisiana bank, admitted being a Louisiana corporation in its

answer, stipulated to being a Louisiana corporation at the trial of this matter, and

withheld funds for Louisiana worker’s compensation.

We find United to be domiciled in Louisiana thereby making the provisions of

Civil Code article 3544(2) applicable here. That article provides that, when the

parties are domiciled in different states and both the injury and the conduct causing

the injury occur in one of those states, the law of the state where the injury and

conduct occurred should be applied. La.Civ.Code art. 3544(2)(a). As previously

noted, Mr. Newell and United are domiciled in Texas and Louisiana respectively.

Furthermore, the injury occurred in Louisiana. Consequently, pursuant to article

3544(2)(a), Lousiaiana law applies to the matter at hand. The decision of the trial

court in this regard is affirmed.

PLAINTIFF’S ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

Plaintiff claims that the trial court erred in failing to award benefits for

temporary total disability. At trial, Mr. Newell’s medical records were introduced,

as well as documents purportedly bearing on the choice of law issue that has already

been determined by this court. Mr. Newell testified on his own behalf, as did his

father-in-law, who was working with him at the time of the accident, and his wife.

Defendant called no witnesses at trial. Mr. Newell relayed his treatment history to

the court and testified that he was still being treated by a pain management specialist

4 and had not returned to work. His father-in-law testified to witnessing the accident.

Finally, Mr. Newell’s wife corroborated her husband’s testimony stating that he had

not returned to work despite having a strong work record in the past.

Following trial on the merits, a judgment was rendered on May 17, 2002

providing that Mr. Newell was entitled to “Louisiana Workers’ Compensation

benefits” and that “defendant failed to reasonably controvert” the claim resulting in

assessment of penalties and attorney fees. Subsequently, defendant moved for a new

trial claiming that the judgment was contrary to the law and evidence and unclear in

that it did not state whether the “benefits” were for medical expenses or indemnity for

disability. Specifically, defendant claimed that the OWC’s award of “benefits”

implicitly referred only to medical expenses because disability benefits must be

specifically set forth by the court. Furthermore, defendant argued that if the trial

court had indeed intended to provide disability benefits, a new trial was warranted

because plaintiff had offered no proof of a disabling condition. Defendant also

argued that the claim had been reasonably controverted.

Plaintiff agreed that a new trial was necessary to clarify the same language in

the judgment that defendant referred to, namely that “the claimant is entitled to

Louisiana Workers’ Compensation benefits.” Plaintiff, however, argued that the

OWC clearly intended to award disability benefits as indicated by the award of

penalties and attorney’s fees. Both parties stipulated that all of Mr. Newell’s medical

expenses had been paid at the time of trial. Both parties agree that penalties and

attorney fees are only available when an employer withholds benefits without

reasonably controverting the issue. Accordingly, plaintiff argued that, since

5 defendant paid for Mr. Newell’s medical expenses, the OWC could only have

awarded penalties and attorney’s fees for defendant’s refusal to pay disability benefits

without reasonably controverting that issue. Therefore, plaintiff maintained, the

reference to benefits in the judgment must have been to disability benefits.

On September 11, 2002, the OWC granted defendant’s motion for new trial.

In lieu of conducting another trial, a second judgment was eventually rendered based

upon the record alone. This second judgment vacated the prior judgment and

provided that Mr. Newell was entitled to “Worker’s Compensation Benefits” but not

to “disability benefits.” This ruling was based on the workers’ compensation judge’s

finding of fact that the only medical evidence regarding a disability was the records

from St. Elizabeth Hospital releasing Mr. Newell to return to work without restriction

on September 27, 2002. The judgment further provided that penalties and attorney’s

fees were not due.

After rendition of the second trial judgment, Mr. Newell timely moved for a

new trial arguing that the second judgment was contrary to the evidence. Plaintiff

argued that a disability had been established by medical evidence and lay testimony.

Plaintiff further argued that, at a minimum, he was entitled to disability benefits from

the date of the accident to the time he was cleared by St. Elizabeth to return to work.

On August 27, 2003, the day before Mr. Newell’s motion for new trial was heard by

the trial court, plaintiff filed a second memorandum in support of the motion for new

trial. Attached to that memorandum was a letter from a neurosurgeon, Dr. Luiz

DeAraujo, in which the doctor stated that Mr. Newell should be restricted to purely

sedentary types of work. Dr. DeAraujo opined that Mr. Newell might be able to

6 return to more strenuous types of work after completing an involved recovery

program. Plaintiff argued that this new evidence necessitated a new trial.

A new trial may be granted when a party discovers important evidence after the

trial that could not have been discovered with due diligence before or during trial.

La.Code Civ.P. art. 1972. Dr. DeAraujo’s letter was not drafted until after the trial

terminated; therefore, it would have been impossible for Mr. Newell to have

discovered it before or during trial. The letter is dated June 18, 2003 and was

addressed to Risk Management Services. The record does not indicate when this

evidence was relayed from the Risk Management office to plaintiff; however, we

know that it was introduced on August 27, 2003. While it is clear that the letter was

introduced, the record does not indicate how much weight it was given by the trial

court. Plaintiff’s motion for new trial was denied without reference to Dr.

DeAraujo’s opinion.

We find the medical opinion of Dr. DeAraujo to be sufficiently important so

as to warrant further investigation. Consequently, we hold that the trial court’s denial

of plaintiff’s motion for new trial was an abuse of discretion given the newly

discovered evidence. We reverse the trial court’s denial of Mr. Newell’s motion for

new trial and remand this matter for further proceedings in accordance herewith.

PLAINTIFF’S ASSIGNMENT OF ERROR NUMBER THREE

Due to the remand of this matter for new trial, addressing plaintiff’s assignment

of error regarding penalties and attorney’s fees would be premature at this time.

These are issues for the new trial.

7 CONCLUSION

We affirm the trial court’s application of Louisiana law in awarding worker’s

compensation benefits to Mr. Newell. We reverse the trial court’s denial of Mr.

Newell’s motion for new trial regarding disability benefits and remand the case so

that the new evidence may be considered. Costs of this appeal are assessed to

defendant.