Namias v. Sunbelt Innovative Plastics, LLC

190 So. 3d 745, 2015 La.App. 1 Cir. 1380, 2016 La. App. LEXIS 377, 2016 WL 743365
CourtLouisiana Court of Appeal
DecidedFebruary 24, 2016
DocketNo. 2015 CA 1380
StatusPublished
Cited by6 cases

This text of 190 So. 3d 745 (Namias v. Sunbelt Innovative Plastics, LLC) 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
Namias v. Sunbelt Innovative Plastics, LLC, 190 So. 3d 745, 2015 La.App. 1 Cir. 1380, 2016 La. App. LEXIS 377, 2016 WL 743365 (La. Ct. App. 2016).

Opinion

WELCH, J.

laThe defendant/appellant, Sunbelt. Innovative Plastics, L.L.C. (“defendant”), appeals a judgment from the office of workers’ compensation awarding the plaintiff/appellee, Raymond Namias, Jr. (“plaintiff’), indemnity, benefits, medical benefits, penalties and attorney fees. For reasons that follow, the judgment of the workers’ compensation judge (“WCJ”) is vacated in part, affirmed in part, amended in part and remanded for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

The- plaintiff filed a disputed claim for compensation with the -office of workers’ [749]*749compensation on August 4, 2014, in connection with a July 21, 2014 work-related accident. The plaintiff asserts that he suffered injuries to his right hand/wrist, right shoulder, and back'-when a part of an engine he was unbolting slid back- and trapped his right hand. On ■ August 31, 2014, several weeks after filing his disputed claim for compensation, the plaintiff fell down stairs at his home and fractured his left ankle and calcaneal. The plaintiff at-' tributes the injuries suffered on August 31, 2014- to the July 21, 2014 work-related accident and sought penalties and attorney fees for the defendant’s failure to timely pay benefits. The defendant maintains that the plaintiff is not entitled to compensation for either incident. ..

The matter proceeded to trial on March S, 2015. At trial, the plaintiff testified that on July 21, 2014, he sustained injuriés to his right hand, right shoulder and lower back. According to the plaintiff, part of an engine he was- unbolting slid back, causing a crushing injury to his right hand. The plaintiff testified that when he pulléd his arm back to free his hand, he experienced a popping sensation-in his right shoulder and back. It is undisputed that there were no witnesses to the plaintiff’s accident. However, the plaintiff testified that he recounted the incident to his co-worker, Fred Porter, whom he encountered shortly thereafter. The plaintiff contends that Mr. Porter also witnessed him having difficulty moving alsladder immediately following the accident due to pain in his right hand and back. We note that Mr. Porter was present at the trial, but neither party called him to testify.

The plaintiff testified that- he did not immediately report his injuries on -July 2Í, 2014, because he could not locate his supervisor and the front office had -closed for the day. Slidell Memorial Hospital-emergency room records dated" July 21, 2014, evidence that the plaintiff sought treatment for only an injury to his right thumb sustained as the result of-a work-related accident. The emergency-room records provide that the plaintiff was diagnosed with a sprained right thumb, after x-rays of his right hand revealed no fractures.

The plaintiff ’ testified that he experienced soreness in his back, shoulder and hand the morning following the accident. The plaintiff testified that he called work the" next morning and was asked by the plant superintendent, referenced in the record ’only as “Doug,” to come in to work. The plaintiff testified that he participated in a :meeting with Doug, Mr. Porter, and Marty Johnson, the plaintiffs immediate supervisor. The plaintiff states that Doug filled out a handwritten accident report, and asked the plaintiff to see a doctor at a local urgent care facility that day. The plaintiff testified that he reported to the urgent care facility, but left prior to being seen-by a -doctor after a two-hour wait, because the person providing him transportation had a pending work obligation.

With regard to the August 31, 2014 fall at his home, the plaintiff testified at trial, “I fell down the steps at my house from my leg going completely numb on me.” The plaintiff testified that at the-time of the accident, approximately 4:00 p.m., he was going downstairs “to go eat dinner.” The plaintiff testified that he had- not worked'since the July 21, 2014 accident, and is currently waiting to have surgery to repair his left ankle, which was delayed by his physician due to swelling.

|4The plaintiffs immediate supervisor, Mr. Johnson, also testified at trial. Mr. Johnson’s testimony regarding the events surrounding the accident and filling out of the accident report conflicts with: the plaintiffs account. Mr. Johnson testified that he- had seen the plaintiff at the end of the day- on July 21, 2014, and that the plaintiff [750]*750failed to report the accident at that time. Mr. Johnson’s testimony did not specify an identifiable time when this encounter occurred. Mr. Johnson further testified, that he did not recall a meeting involving the plaintiff, Doug, and Mr. Porter on July 22, 2014. Instead, Mr. Johnson testified he met with the plaintiff alone to fill out an accident report. . According to Mr. Johnson, the plaintiff initially told him that a pulley fell on his hand and that his thumb was fractured. Mr. Johnson testified that the plaintiff did not mention injuries to his shoulder or back during their meeting, but was wearing .a brace on his right hand. Mr. Johnson testified that he turned the completed accident report into the office, but., he, had -no knowledge of what action was taken by the .office in response to the accident report, nor did he know the current whereabouts of said report. The accident report was not. offered or admitted into the record herein.

The third and final witness at trial was Gary Kern, si- claims consultant for the defendant’s insurer. Mr. Kern testified that on August 1, 2014, he was asked to investigate the July 21,2014 accident. Mr. Kern testified that his- records indicated that the plaintiff had been told on the day of the accident, that he was not making satisfactory progress in-his job, and that his last day would be the upcoming Friday. Mr. Kern admitted that he never asked for nor received a copy of the -accident report filled out on July 22, 2014. ■

Mr. Kern testified that his investigation included meeting -with Doug, ‘Mr. Porter, and Mr. Johnson, inspecting and photographing a motor similar to the one the plaintiff claimed was involved in the accident, referring the plaintiff for a second medical opinion from Dr. Gordon Nutik, and, unsuccessfully attempting, to.|Hset up an interview with the plaintiff. Mr. Kern’s testimony indicates that he focused on trying to “understand” how the plaintiff had fractured his thumb, because there was.no medical evidence to support such a claim. Mr. Kern could not recall receiving or reviewing .reguests- for benefits and the attached medical reports forwarded to the defendant by counsel for the plaintiff in early August of 2014, Mr. Kern’s testimony suggests that, he never investigated the plaintiffs claims regarding. his back or shoulder injuries. ...

The plaintiffs medical records were also introduced into evidence at the trial. These records indicate that after receiving treatment at the emergency room on July 21, 2014, for a sprained right thumb, the plaintiff later sought treatment for injuries to his right shoulder, and lower back. On July -28, 2014, the plaintiff sought a chiropractic evaluation, by Dr. Phillip O. Gordon, -Jr. The plaintiff reported right wrist/ hand pain and low back pain with spasm, radiating pain in his left lower extremity, and numbness in hie left foot as well as weakness in his right and left lower extremities. Dr. Gordon placed the plaintiff on temporary total disability status-(TTD) for four weeks. Dr. Gordon diagnosed the plaintiff, with lumbar sprain/strain and a contusion to the right wrist/hand with resolving ecchymosis. - Dr.

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Bluebook (online)
190 So. 3d 745, 2015 La.App. 1 Cir. 1380, 2016 La. App. LEXIS 377, 2016 WL 743365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/namias-v-sunbelt-innovative-plastics-llc-lactapp-2016.