STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-700
NATHAN WRIGHT
VERSUS
CYPRESS GENERAL CONTRACTORS, INC.
********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 03-06104 SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of John D. Saunders, Oswald A. Decuir, and Glenn B. Gremillion, Judges.
AFFIRMED AS AMENDED.
Mark Zimmerman 4216 Lake Street Lake Charles, LA 70605 (337) 474-1644 Counsel for Plaintiff/Appellee: Nathan Wright
Christopher R. Philip P. O. Box 2369 Lafayette, LA 70502-2369 (337) 235-9478 Counsel for Defendant/Appellee: Louisiana United Businesses Assoc. Self-Insureds Fund Michael J. Taffaro Stemmans & Alley 668 S. Foster Drive, Suite 101 Baton Rouge, LA 70806 (225) 231-1288 Counsel for Defendant/Appellant: Cypress General Contractors, Inc. GREMILLION, Judge.
The defendant, Cypress General Contractors, Inc., appeals the judgment
of the workers’ compensation judge awarding the plaintiff, Nathan Wright, weekly
indemnity benefits as a result of a work-related injury and penalties and attorney’s
fees. For the following reasons, we affirm.
FACTS
At the heart of this dispute is the confusion caused by the fact that
Wright suffered two work-related accidents. Wright was employed as a surveyor by
Cypress General, although his job duties entailed more than just surveying. On July
3, 2001, he was in a catch basin attempting to join lengths of pipe when a concrete
pipe fell off the trackhoe and hit his left leg. In his accident report, Wright noted that
his left knee, ankle, and foot were affected in the incident. On July 9, 2001, Dr. Alan
Hinton, an orthopedic surgeon, diagnosed him as suffering a probable superficial
peroneal sensory nerve injury in his left leg.
Wright suffered a second accident on March 14, 2002, when his foot
slipped as he was dismounting a trackhoe via its bucket. This caused him to hit his
right shin on the bucket and land heavily on his left leg. The March 22, 2002
accident report lists the affected areas as his right shin, ankle, and foot. On March 21,
2002, he was treated at the Hunter McGuire Medical Center for cellulitis in his right
shin. Thereafter, Dr. Stephen Flood, an orthopedic surgeon, performed an
arthroscopic surgery on his left knee on November 18, 2002, to repair a torn
meniscus. Dr. Flood now recommends that he undergo further arthroscopic surgery
due to a probable retearing of the meniscus. Cypress General refused authorization
1 for this procedure and terminated Wright’s weekly indemnity benefits on August 3,
2003.
Wright filed a Disputed Claim for Compensation against Cypress
General and its workers’ compensation insurer, Bridgefield Casualty Insurance
Company, based on the termination of his benefits and their failure to authorize
treatment recommended by Dr. Flood. He also sought penalties and attorney’s fees
based on their arbitrary and capricious termination of his benefits. Wright filed a
second Disputed Claim for Compensation against LUBA, Cypress General’s workers’
compensation carrier at the time of his July 2001 work-related injury. Cypress
General denied liability for Wright’s injury.
Following a trial on the merits, the workers’ compensation judge took
the matter under advisement. In oral reasons for judgment, he found that Wright
suffered a work-related injury to his left knee as a result of the March 14, 2002
accident, that his average weekly wage was based on an hourly wage of $30 per hour
in a forty-hour work week, and that he was entitled to the reinstatement of his
indemnity and medical benefits. The workers’ compensation judge found that
Bridgefield was responsible for Wright’s benefits, as the March 14, 2002 accident
caused his disability, and he dismissed all claims against LUBA. He further awarded
$2000 in penalties and $7000 in attorney’s fees based on Cypress General’s arbitrary
and capricious termination of Wright’s benefits. A judgment was rendered in this
matter on February 18, 2005. Cypress General has suspensively appealed this
finding.
2 ISSUES
Cypress General raises four assignments of error on appeal. It argues
that the workers’ compensation judge erred in finding that Wright proved a causal
relationship between his left-knee injury and his work-related accident, in finding that
his average weekly wage was based on a $30 per hour pay scale, and in awarding
penalties and attorney’s fees based on its allegedly arbitrary and capricious actions.
Additionally, Wright has filed an answer to appeal seeking additional attorney’s fees
for work performed on appeal.
WORK-RELATED ACCIDENT
An employee who is injured as a result of a work-related accident will
receive compensation benefits from his employer. La.R.S. 23:1031(A).
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers' Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farms, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).
3 Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992).
Cypress General argues that the workers’ compensation judge erred in
finding that Wright suffered a work-related injury to his left knee on March 14, 2002.
It further argues that he is not entitled to the presumption that this accident caused his
disability since he had suffered three prior left-knee injuries and complained of pain
in his knee prior to the accident.
Wright admitted that he was involved in two separate accidents, but
testified that his knee injury arose from the March 14, 2002 accident. He stated that
the first accident left his left leg bruised and sore from his hip to his foot, but never
prevented him from working. This was confirmed by his wife, Christine. He was
treated once by Dr. Hinton and diagnosed as suffering from a probable superficial
peroneal sensory nerve injury in his left leg. His co-worker, Sam Schexnailder, who
witnessed the accident, testified that Wright only complained generally about his leg
after this accident, but not his left knee.
Wright testified that the second accident left his right shin badly bruised,
scratched, and cut and his left knee very sore. He stated that he was originally
concerned about his right shin, which developed cellulitis. Cypress General sent him
to Hunter McGuire on March 21, 2002, which diagnosed that condition and then
released him for work. Christine stated that he limped, complained of knee pain, and
had trouble sleeping after this accident. Schexnailder confirmed that Wright had a
harder time getting around the job site following the incident. Gavin Abshire,
Cypress General’s general manager, admitted that this accident occurred.
4 Wright stated that his knee worsened until he was seen by Dr. Dale
Bernauer, an orthopedic surgeon. A May 20, 2002 MRI of the left knee revealed a
possible “bucket handle” tear of the meniscus, effusion, and a possible Baker’s cyst.
Dr. Bernauer referred Wright to his partner, Dr. Flood, who performed arthroscopic
surgery on the knee on November 18, 2002. Wright said that he has not worked since
his surgery.
Wright admitted to two prior left-knee-injuries. One was a high school
football injury, and the other occurred after he fell off of a barge in 1990. He stated
that he was examined at Baptist Hospital in Orange, Texas, following this incident
and was released to return to work.
Cypress General questioned Wright concerning several medical records
introduced into evidence. The Hunter McGuire record lists his chief complaint as
right leg pain. A January 8, 2003 record from Proactive Therapy states that he
suffered a work-related knee injury in late summer 2001. This record further states
that he was treated by Dr. Hinton for a while, before seeking treatment from Dr.
Flood. Cypress General further questioned Wright regarding a May 2002 patient
history form for Open Air M.R.I., which states that he was experiencing left knee pain
the previous nine months. Wright confirmed that this was his statement, but
explained that his knee had bothered him from time to time. Cypress General further
questioned him concerning an April 14, 2003 report from Dr. James Perry, which
states that he injured his left knee on July 3, 2001, when a pipe fell on him. However,
Dr. Perry testified that as he saw Wright post-operatively, he did not delve into the
etiology of his knee injury.
5 Dr. Flood testified that he initially thought that Wright’s injury had
resulted from the pipe falling on his knee. He stated that he first learned that Wright
was involved in two separate accidents at the May 29, 2003 rehabilitation conference
with Angie Benoit, a rehabilitation consultant with Jus-Mar. Benoit summarized the
outcome of that meeting in a letter to Dr. Flood:
The consultant then discussed with you the issue of Mr. Wright’s 03/14/02, work related injury to his right tibia. You stated your patient would have no additional restrictions due to this injury. However, you did express confusion regarding Mr. Wright’s workers’ compensation injury of 03/14/02, to his right tibia, and your current treatment of this claimant’s left knee. When you questioned Mr. Wright, who was present for this conference, about his left knee injury, your patient stated his knee was injured during a previous work related accident in July of 2001, when a concrete pipe struck his left leg. Mr. Wright stated that he was evaluated by Dr. Perry, Orthopedic Surgeon, immediately following this accident and was released to dull duty activities.
You reported information regarding a previous work related injury to Mr. Wright’s left knee of July 2001 and subsequent treatment by Dr. Perry was not indicated by your patient in his medical history. You therefore requested Mr. Wright provide you with a complete addendum to his medical history as soon as possible, which would be reviewed with him, and dictated into his medical chart by you in his presence. Additionally, you recommended Mr. Wright contact Dr. Perry’s office immediately, forwarding all information regarding the treatment of his left knee by this physician to you.
Subsequent to the conference, Dr. Flood testified that he obtained and
reviewed Dr. Hinton’s medical records, had further discussions with Wright, and
reevaluated his records. On October 14, 2003, he noted that Dr. Hinton’s July 9,
2001 medical record stated that Wright had suffered a probable superficial peroneal
sensory nerve injury of his left leg, but no left knee injury. Based on this report, Dr.
Flood felt that Wright injured his knee as a result of the March 14, 2003 accident,
rather than aggravated a preexisting problem.
6 On November 14, 2003, Dr. Flood again related Wright’s left-knee
injury and the need for surgery to the March 14, 2002 accident. Moreover, on
December 12, 2003, he testified that he reexamined Wright’s patient questionnaire
of April 15, 2002, completed by him prior to seeing Dr. Bernauer. Dr. Flood stated
that the questionnaire cleared up any confusion as to the cause of Wright’s knee
injury. In the document, Wright described his accident: “FELL DOWN GETTING
OFF EQUIPMENT, PIECE OF CONCRETE PIPE DROPPED ON LEFT LEG.” Dr.
Flood stated that he initially thought this statement involved one incident. Once he
understood that two separate incidents had occurred, he noted this finding on the
questionnaire and initialed it. He wrote that the first incident, “FELL DOWN
GETTING OFF EQUIPMENT,” was the acute problem for which Wright was
seeking treatment, and that the second incident, “PIECE OF CONCRETE DROPPED
ON LEFT LEG,” was a prior problem treated by Dr. Hinton.
Dr. Flood opined that Wright’s left-knee injury was caused by the March
14, 2002 accident. He based his opinion on the absence of findings by Dr. Hinton
that Wright suffered a knee injury following the July 3, 2001 accident and his own
finding of a knee injury subsequent to the March 14, 2002 accident. Although he
admitted that the July 3, 2001 accident might have caused some of the problems in
Wright’s knee, Dr. Flood did not believe that it caused the lateral meniscal tear. He
explained that a glancing blow, even by a large object, does not commonly cause such
tears. Moreover, he stated that a bucket-handle tear typically results in a swollen
knee within two to five hours of its occurrence, as a result of bleeding in the knee,
even if it does not cause acute pain.
7 Donna Hill, Bridgefield’s claims adjustor, only started administering
Wright’s file in February 2004; thus, her only knowledge of actions taken prior to that
date was based on the records contained in the file. She stated that Wright’s
indemnity benefits were terminated on August 3, 2003, mainly because his
explanation regarding the March 14, 2003 accident kept changing.
Prior to and including the May 29, 2003 rehabilitation conference, Hill
testified that Dr. Flood never related Wright’s injury to the March 2002 accident.
Rather, she said that he related it to the accident where Wright was hit by the concrete
pipe. Subsequently, she stated that she reviewed Dr. Flood’s reports of October 14,
2003, November 14, 2003, and December 12, 2003, which related Wright’s knee
injury to the March 14, 2002 accident. She testified that these reports failed to clarify
which accident caused Wright’s knee injury, as they changed the date of the accident
(March 14, 2002, rather than July 3, 2001), and the injury suffered (left knee rather
than right shin).
After receiving the reports, she stated that Bridgefield reviewed Wright’s
file again and noted these inconsistencies along with several others. She pointed to
Dr. Perry’s report which said that Wright injured his knee after being hit in the leg
with a concrete pipe on July 3, 2001. She further noted the Proactive Physical
Therapy report which said that Wright suffered a work-related knee injury in late
summer 2001, received treatment from Dr. Hinton, underwent surgery by Dr. Flood,
and experienced persistent problems up until the surgery. However, despite this
confusion, Hill admitted that Bridgefield never sought a clarification from Dr. Flood
8 as to the cause of Wright’s left-knee injury nor did it provide him with Dr. Hinton’s
records so that he could review them.
Benoit testified with regard to the May 29, 2003 rehabilitation
conference. She stated that Dr. Flood released Wright from his right tibia injury and
agreed that he could perform light to medium duty work as pertaining to his knee
injury. While discussing the knee injury, she said that Dr. Flood became confused
concerning the workers’ compensation injury to Wright’s right tibia and his treatment
of the left knee. Benoit testified that Wright, who was present at the conference,
informed Dr. Flood that he had previously injured his left knee when hit by a concrete
pipe. Following the conference, she stated that she was told by Bridgefield to place
Wright’s file on hold.
After carefully reviewing the record, we find that the workers’
compensation judge was presented with overwhelming evidence that Wright suffered
a work-related injury to his left knee. Further, there is no dispute that he was
employed by Cypress General at the time of his injury. The confusion which arose,
and to which Cypress General and Bridgefield have clung, is the fact that the two
incidents occurred within eight months of each other, both involved the left knee, and
both were recounted by Wright when providing full historical information to medical
personnel subsequent to the March 14, 2002 accident. Moreover, we would not be
deciding this matter had Cypress General not changed workers’ compensation
insurers during the interim of the two incidents. Unfortunately for Wright, this union
of circumstances put him between the proverbial rock and a hard place, leaving him
to fend for himself while pursuing his claim against the two insurers.
9 In reaching his decision, the workers’ compensation judge stated:
Now, few if any medical reports and narratives are self- explanatory, but the medical evidence in this case, at first glance and even at first reading, presents something less than an instantaneously clear picture of the claimant’s treatment history. But it’s not as puzzling as it may appear at first blush. I think, in fact, what happened is that there was an unfortunate confluence involving a claimant who can best be described as somewhat abrupt and terse, and a physician who, for whatever reasons just didn’t accurately comprehend what the patient was telling him. This assessment generally is applicable, or at least considered, in matters involving the allegation of fraud; but fraud is not involved here on either side. It’s a communication problem, not one of honesty.
I think Mr. Wright injured his left knee seriously enough in the March 14, 2002 (sic) to require surgery and disablement, and that Dr. Flood, while reviewing the medical referral documentation, incorrectly assumed an inappropriate relationship between that accident and the earlier one on July the 3rd, 2001. I can’t see how any other reasonable conclusion can be reached other than that, given the language of the medical notes of Dr. Hinton, Dr. Flood, and Dr. Bernauer.
We find that these reasons accurately explain how the alleged confusion
and inconsistencies arose in this matter, resulting in Wright’s claim. Rather than
seeking a clarification from Dr. Flood in order to clear up the matter, Bridgefield
terminated Wright’s indemnity and medical benefits. This was in direct contradiction
of its “continuing duty to investigate, to assemble, and to assess factual information
before denying benefits.” Thomas v. Alliance Compressors, 04-1034, p. 5 (La.App.
3 Cir. 12/8/04), 889 So.2d 424, 428, writ denied, 05-0086 (La. 3/18/05), 896 So.2d
1010 (quoting George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d
1200, 1209)). Dr. Flood described the symptoms arising from a bucket-handle tear
of the meniscus. None of these symptoms were exhibited by him after his July 3,
2001 accident, as none were noted by Dr. Hinton six days later. Plus, Dr. Flood
stated that landing heavily on the left leg could cause this type of injury, whereas a
10 glancing blow to the leg normally does not result in such a tear. Thus, it was
reasonable for the workers’ compensation judge to find that in the absence of an
intervening accident, Wright’s knee injury occurred on March 14, 2002, and that
Bridgefield is the covering insurer.
Moreover, we find no error in the workers’ compensation judge’s award
of penalties and attorney’s fees. Bridgefield failed to take reasonable steps in
determining the exact etiology of Wright’s work-related injury after receiving the
allegedly confusing information from Dr. Flood. As stated above, this breached their
continuing duty to investigate his claim. Accordingly, the award of $2000 in
penalties and the $7000 in attorney’s fees is affirmed.
AVERAGE WEEKLY WAGE
In this assignment of error, Cypress General argues that the workers’
compensation judge erred in determining Wright’s average weekly wage based on a
pay scale of $30 per hour rather than the $10 per hour it claimed to pay him for his
labor.
Wright, who began working for Cypress General in 1998, testified that
in addition to surveying, he also supervised workers, estimated job costs, performed
carpentry work, operated heavy equipment, finished cement, and liaised with clients.
He stated that Cypress General initially paid him $30 per hour, with overtime pay of
$45 per hour. At some point, Wright testified that Cypress General began paying him
wages of $10 per hour, along with $20 per hour for the use of his personal van, four-
wheeler, and surveying equipment. He said that this was done in order to help
Cypress General save money on its workers’ compensation coverage and not via an
11 agreement between them. Although he was paid to use his own van, Wright stated
that Cypress General paid for its fuel, tires, and upkeep through his company credit
card. He testified that his one-second electronic total surveying station cost $6000
brand new and that the only upkeep associated with it was recharging the batteries.
Wright admitted that he received two checks from Cypress General and
that taxes were taken out of the $10 per hour check, but not the $20 hour check. In
2001, he earned $24,315, based on his $10 per hour wage, and $48,380, based on the
$20 per hour amount. In 2002, he earned $19,720, based on the $10 per hour wage,
and $43,040, based on the $20 per hour amount.
Christine agreed with Wright’s testimony concerning his initial wages
with Cypress General. She stated that his pay later changed to $30 per hour with no
overtime, with this amount divided between two checks. She said that Cypress
General indicated that it was less complicated for them to pay him in this manner.
Schexnailder testified that he is paid a truck allowance by Cypress
General of $100 per week and not an hourly rate of $20 per hour.
Abshire stated that Wright was hired as a surveyor by Cypress General
and that his job duties included establishing lines, levels, laying out projects, and
interpreting plans. Abshire testified that he was initially paid $30 per hour until an
agreement was reached between them to pay him $10 per hour for his labor and $20
per hour for the rental of his van, four-wheeler, trailer, and surveying equipment. He
explained that taxes were taken out of the check representing Wright’s labor, but not
out of the rental check.
12 Abshire stated that Cypress General has never paid a surveyor $30 per
hour and explained that Wright was only paid that amount because he used his own
equipment. At one point, he stated that Wright wanted Cypress General to purchase
new surveying equipment. However, he said that Wright decided to purchase the
equipment himself after being told that his payment agreement would be renegotiated
if Cypress General owned the surveying equipment.
Subsequent to Wright’s accident, Abshire testified that Cypress General
purchased its own surveying equipment and hired a surveyor to replace him. He said
that the surveyor, Darren Sargeant, is licensed and has a college degree, unlike
Wright, and is not paid $30 per hour. However, Abshire admitted that Wright did
more than just surveying for Cypress General, such as designing deck forms for
bridges.
Sargeant testified that he has been employed by Cypress for one-and-a-
half years. He stated that he has a college degree in computer science and has been
involved in the surveying industry for fifteen years. He testified that he is a Surveyor
In Training, but indicated that he had just sat for his Professional Land Surveyor
license. Sargeant testified that he only performs surveying work for Cypress General
and that he earns $17.50 per hour. He stated that the industry would not bear paying
$30 per hour for a surveyor, but admitted that he would not work for only $10 per
hour.
In finding that Wright’s average weekly wage was based on $30 per hour
rather than $10 per hour, the workers’ compensation judge stated:
Disingenuous is the most charitable, certainly not the most accurate, description that can be given to the employer’s claim, which he made
13 repeatedly with a straight face. Unflinching, the employer’s representative said that during the two years prior to the disabling accident, he paid more than $40,000 in van and surveying equipment upkeep to keep this $10-an-hour employee. Pressed on cross- examination for a reason of this bifurcation of income, the employer’s representative was hard-pressed to explain how this arrangement evolved. It was just done, he said. Unexplained was why the employer’s credit card was used to purchase tires and gas for the van and why the claimant here bought his own surveying equipment. Defense counsel did all he could reasonably be expected to do to make some sense out of this tale, but it flies squarely in the face of common sense and customary business practice.
Generally, payments received by an employee for the use of his tools and
equipment are not included the calculation of his average weekly wage. Hood v. C.J.
Rogers, Inc., 94-1162 (La.App. 3 Cir. 3/8/95), 654 So.2d 371 (citing Wex A. Malone
& H. Alston Johnson III, 14 Louisiana Civil Law Treatise, Workers’ Compensation
§ 327 (3d ed.1994)). Nonetheless, in Nash v. Premium Products of Louisiana, Inc.,
95-389 (La.App. 3 Cir. 11/2/95), 690 So.2d 43, we held that payments made to a
worker for the use of his truck and equipment should be included in determining his
average weekly wage. We held that the payments were associated with the worker’s
wages as his hourly wages decreased when the payments began and the employer
discontinued the payments after his injury, but retained possession of his truck and
equipment.
In this instance, we find no error in the workers’ compensation judge’s
determination that the $20 per hour should be included in Wright’s average weekly
wage computation. His wages decreased by $20 per hour corresponding with the
commencement of the $20 per hour payment for the use of his equipment. Also, we
agree with the workers’ compensation judge that it is inconceivable that an employer
would pay in excess of $40,000 per year to retain an employee who only earns $10
14 per hour, especially when the equipment it is supposedly renting costs $6000 and it
provides all maintenance for the employee’s van. Although Cypress General only
pays Sargeant $17.50 per hour, Wright was obviously a more valuable employee, who
could perform many other functions than just surveying. Accordingly, the judgement
of the workers’ compensation judge is affirmed.
ANSWER TO APPEAL
Wright has answered Cypress General’s appeal and seeks additional
attorney’s fees for work performed in conjunction with this appeal. Based on our
findings, we award him an additional $3000 in attorney’s fees.
CONCLUSION
For the foregoing reasons, the workers’ compensation judge’s judgment
is affirmed. It is further ordered, adjudged, and decreed that an additional $3000 in
attorney’s fees is awarded to the plaintiff-appellee, Nathan Wright. The costs of this
appeal are assessed to the defendant-appellant, Cypress General Contractors, Inc.