Poche v. Boh Bros. Construction Co.

804 So. 2d 90, 2001 La. App. LEXIS 2638, 2001 WL 1388330
CourtLouisiana Court of Appeal
DecidedNovember 9, 2001
DocketNo. 2000 CA 1896
StatusPublished

This text of 804 So. 2d 90 (Poche v. Boh Bros. Construction Co.) 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
Poche v. Boh Bros. Construction Co., 804 So. 2d 90, 2001 La. App. LEXIS 2638, 2001 WL 1388330 (La. Ct. App. 2001).

Opinion

JgCLAIBORNE, J.

This appeal is by an employee, Allen J. Poche, Jr., from a decision of the workers’ compensation judge (WCJ), awarding him workers’ compensation benefits, medical expenses, penalties, and attorney’s fees associated with a disputed claim for a work-related accident with injury.2 The WCJ found that the claimant had suffered a work-related accident with injury that aggravated a pre-existing condition, and or[92]*92dered that the employer, Boh Brothers Construction Company, Inc. (Boh Brothers), pay benefits and medical expenses until August of 1998, along with penalties and attorney’s fees. The claimant has appealed that portion of the judgment terminating future benefits and medical expenses from August of 1998. Claimant has also appealed the award of attorney’s fees, seeking an increase in the amount awarded. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Claimant began working for Boh Brothers on September 9, 1967, just after graduating from high school. He continued to work for Boh Brothers for over thirty years, until some difficulties with his right foot prevented him from returning to work. At some point during his employment with Boh Brothers, Mr. Poche was diagnosed with adult onset diabetes. This condition was disclosed to Boh Brothers.

On August 1,1997, Mr. Poche was working at the North Treatment Plant in East Baton Rouge Parish. He was a working foreman for Boh Brothers, which required that he not only supervise other employees, but also work along with them to complete the necessary tasks. In order to carry out his duties at the site, Mr. Poche was repeatedly required to walk up and down sloping, uneven surfaces. As |3a result, Mr. Poche developed a blister on the underside of his right foot between his fourth and fifth toes.

Mr. Poche reported the blister to his safety manager and his immediate supervisor, and completed an accident report. He sought treatment for this blister with Dr. John Cazale, IV, an orthopedic surgeon. Dr. Cazale treated Mr. Poche for this blister through October 20, 1997, at which time he released Mr. Poche to return to regular duty. Boh Brothers continued to pay Mr. Poche his salary in lieu of workers’ compensation benefits at that time. Dr. Cazale testified that at the time he released Mr. Poche, he considered the blister to be completely healed.

When Mr. Poche returned to work, Boh Brothers assigned him to work in the shop, and had him running errands around town rather than having him work out in the field. This assignment required him to do some driving, but only on short hauls. He did not have to climb ladders or scaffolding, nor did he have to walk on any inclines.

On December 1, 1997, Mr. Poche went back to Dr. Cazale complaining of another blister on the same spot on his right foot. Mr. Poche did not fill out a new accident report at work, nor did he provide Dr. Cazale with any work-related explanation for the formation of this blister. Mr. Poche did, however, explain to Dr. Cazale that he had noticed some drainage from the blister for three days prior to his seeking treatment.

As he was concerned about the possibility of infection, Dr. Cazale ordered an MRI of Mr. Poche’s foot. Boh Brothers refused to authorize the payment for the MRI, claiming that the second blister was not related to his employment. Eventually, an abscess was discovered on Mr. Poche’s right foot, and he sought treatment with Dr. Irwin J. Trestman, an internist with a specialty in infectious diseases. Dr. Trest-man discovered osteomyelitis, an infection in the bone of Mr. Poche’s foot, and admitted him to the hospital where he was given intravenous ^antibiotics. Surgery was subsequently performed, resulting in the removal of certain bones from the fourth toe in Mr. Poche’s right foot.

After the surgery, Dr. Cazale placed certain restrictions on the type of work [93]*93Mr. Poche could perform. Specifically, Dr. Cazale recommended that Mr. Poche only perform sedentary to light work in a controlled environment. This, along with other restrictions, made it impossible for Mr. Poche to return to Boh Brothers in the same capacity. Eventually, Boh Brothers terminated Mr. Poche’s employment.

The WCJ determined that the blister that Mr. Poche developed in August of 1997 was work-related. The court further determined from the testimony of Dr. Ca-zale that the infection discovered in Mr. Poche’s foot in December 1997 developed as a result of the August 1997 blister and was also work-related. Finally, the WCJ determined that Mr. Poche was rendered temporarily totally disabled as a result of the blister and osteomyelitis from August of 1997 until August of 1998.

Boh Brothers was ordered to pay benefits for the period of this disability, as well as medical expenses, but was given a credit for the wages it had paid to Mr. Poche in lieu of the benefits. The WCJ also determined that Boh Brothers had been arbitrary and capricious in its denial of benefits and medical expenses, and ordered Boh Brothers to pay penalties and attorney’s fees for this denial. Mr. Poche was dissatisfied with the judgment and has appealed.

ASSIGNMENTS OF ERROR

Appellant relies on three assignments of error in seeking to overturn the decision of the WCJ. Specifically, appellant argues that the WCJ erred in finding that his disability, which was the result of a work-related accident, ended in August of 1998, and that the court erred in failing to award weekly benefits or supplemental earnings benefits after August of 1998. Appellant further asserts that the attorney’s fees awarded by the WCJ were too low.

[^STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact absent manifest error, or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). This standard applies to the factual findings of district courts, as well as to the factual findings of a workers’ compensation court, and is required even when the trier of fact has rendered its opinion solely upon review of written medical reports and depositions. Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710. For an appellate court to reverse a workers’ compensation judge’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding, or that the record establishes that the finding is clearly wrong. Brown v. Coastal Construction & Engineering, Inc., 96-2705, p. 4 (La.App. 1st Cir.11/7/97), 704 So.2d 8, 10. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility should not be disturbed upon review where conflict exists in the testimony. Freeman v. Poulan/Weed Eater, 93-1530, p. 5 (La.1/14/94), 630 So.2d 733, 738. The issue is not whether the trier of fact was right or wrong, but whether the conclusion was a reasonable one. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

DISCUSSION

An employer is required to pay workers’ compensation benefits when the claimant suffers work-related injuries or aggravates a pre-existing condition that produces disability. La. R.S. 23:1021, et seq. An employee’s disability is compensa-ble if it stems from a pre-existing condition that has been activated or precipitated by [94]*94his work.

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Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Freeman v. Poulan/Weed Eater
630 So. 2d 733 (Supreme Court of Louisiana, 1994)
Alexander v. Pellerin Marble & Granite
630 So. 2d 706 (Supreme Court of Louisiana, 1994)
Alleman v. Fruit of the Loom-Crowley
692 So. 2d 485 (Louisiana Court of Appeal, 1997)
Brown v. Coastal Const. & Engineering, Inc.
704 So. 2d 8 (Louisiana Court of Appeal, 1997)
Moss v. Winward Hosp.
720 So. 2d 107 (Louisiana Court of Appeal, 1998)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Bruno v. Bellsouth/Berry Co.
701 So. 2d 1056 (Louisiana Court of Appeal, 1997)

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Bluebook (online)
804 So. 2d 90, 2001 La. App. LEXIS 2638, 2001 WL 1388330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poche-v-boh-bros-construction-co-lactapp-2001.