Ray Patt v. Amerigas Propane, Inc. and Ndemnity Insurance Company of North America

• Court: Louisiana Court of Appeal
• Decided: April 29, 2026
• Docket: WCA-0025-0633
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

25-633

RAY PATT

VERSUS

AMERIGAS, INC. AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA

**********

APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 9 PARISH OF TERREBONNE, NO. 23-1527 HONORABLE ELIZABETH C. LANIER WORKERS’ COMPENSATION JUDGE

CHARLES G. FITZGERALD JUDGE

Court composed of Candyce G. Perret, Charles G. Fitzgerald, and Gary J. Ortego, Judges.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED IN PART. Kirk L. Landry Virginia J. McLin Keogh, Cox & Wilson, Ltd. 701 Main Street Baton Rouge, Louisiana 70821 (225) 383-3796 Counsel for Defendants/Appellants: Amerigas, Inc. Indemnity Insurance Company of North America

Antonio L. Finley, Jr. Gordon McKernan Injury Attorneys 5656 Hilton Avenue Baton Rouge, Louisiana 70808 (225) 231-1902 Counsel for Plaintiff/Appellee: Ray Patt FITZGERALD, Judge.

The issue here is whether the workers’ compensation judge (WCJ) erred in

awarding the claimant, Ray Patt, compensation benefits, penalties, and attorney fees.

FACTS AND PROCEDURAL HISTORY

Ray was formerly employed by Amerigas Inc. In July 2021, he was injured

in a motor vehicle accident during the course of employment. Amerigas deemed the

accident compensable and began paying him workers’ compensation indemnity

benefits.

In March 2022, Ray underwent back surgery. Nine months later, on

December 30, 2022, Amerigas discontinued his benefits based on a second medical

opinion. A few months after that, Ray filed a disputed claim for compensation

against Amerigas and its insurer, Indemnity Insurance Company of North America.

Defendants answered the claim.

Trial was held on May 8, 2025. The WCJ ruled from the bench at the close

of evidence and gave oral reasons at that time. A written final judgment followed

on June 30, 2025. In essence, the WCJ awarded Ray temporary total disability

benefits from December 31, 2022, through July 10, 2023, totaling $14,174.38;

supplemental earnings benefits from July 11, 2023, through the date of trial, totaling

$51,205.88; penalties in the amount of $2,000.00; and attorney fees in the amount

of $8,000.00. Defendants appealed.

On appeal, Defendants assert three assignments of error (emphasis in

original):

1. The [WCJ] committed legal error when she awarded temporary total disability benefits for the time period December 31, 2022 to July 10, 2023 when no evidence was presented that Claimant/Appellee, Ray Patt, could not work, in any capacity, at any job, even if working in pain. 2. The [WCJ] committed legal error when she awarded supplemental earnings benefits from July 11, 2023 to the date of trial. The trial court prematurely shifted the burden of proof as it relates to supplemental earnings benefits to the Defendants/Appellants, Amerigas, Inc. and Indemnity Insurance Company of North America, where Claimant/Appellee, Ray Patt, did not first meet the minimum requirements outlined in La. R.S. 23:1221(3).

3. The [WCJ] committed legal error when she awarded penalties and attorney’s fees. The evidence presented at trial and the judge’s own statement showed that the claim was reasonably controverted.

Ray, in turn, seeks additional attorney fees for work done in this appeal.

LAW AND ANALYSIS

“The manifest error standard of review is the correct standard to be applied by

the appellate court in workers’ compensation cases. Thus, the WCJ’s findings will

not be set aside absent a showing that they are clearly wrong.” Young v. CB&L, LLC,

20-619, p. 4 (La.App. 3 Cir. 10/27/21), 329 So.3d 905, 909 (citation omitted).

“Conversely, when legal error interdicts the fact-finding process in a workers’

compensation case, the manifest error or clearly wrong standard of review no longer

applies and de novo review of the matter is required.” Gaines v. Home Care

Solutions, LLC, 15-895, p. 9 (La.App. 4 Cir. 4/6/16), 192 So.3d 794, 801.

One more thing: the rules of evidence are relaxed in workers’ compensation

cases under La.R.S. 23:1317(A). Hence, the WCJ has the discretion to admit hearsay

statements. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La. 3/4/98), 708 So.2d

375.

Defendants’ First Assignment of Error

Defendants initially assert that the WCJ legally erred in awarding Ray

temporary total disability benefits. However, nothing in the record reflects legal

2 error in the award of these benefits. We therefore review this assignment for

manifest error.

Temporary total disability benefits are addressed in La.R.S. 23:1221.

Subparagraph (1)(C) of that statute states in relevant part:

[C]ompensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

This court addressed the claimant-employee’s burden of proof in Clover v.

Redfish Rentals, Inc., 22-470, p. 7 (La.App. 3 Cir. 2/2/23), 357 So.3d 522, 530:

For Claimant to receive TTD benefits, he must prove by clear and convincing evidence unaided by any presumption of disability, that he is physically unable to engage in any employment as a result of a work-related injury. La.R.S. 23:1221(1). Such disability can be proven by lay and/or medical testimony, and the WCJ weighs all evidence in deciding whether the employee has satisfied that burden of proof. Jack v. Prairie Cajun Seafood Wholesale, 07-102 (La.App. 3 Cir. 10/3/07), 967 So.2d 552, writ denied, 07-2388 (La. 2/15/08), 976 So.2d 178.

Here, the record evidence consists of Ray’s trial testimony, a few pages of

Ray’s deposition testimony, Dr. Patrick A. Juneau III’s second medical opinion, Dr.

Juneau’s supplemental second medical opinion, the medical records reviewed by Dr.

Juneau (including many of Dr. Ilyas Munshi’s records), and Defendants’ notice of

suspension of benefits.

Ray’s treating physician is Dr. Munshi, a neurosurgeon. As stated above,

many of Dr. Munshi’s medical records are included in the documents that were

reviewed by Dr. Juneau. Those records, for example, show that Ray initially saw

Dr. Munshi on July 29, 2021. And at that time, Dr. Munshi issued the following

work recommendation: “No return to work until further notice due to current

3 restrictions on activities of daily living (ADL’s): No lifting over 10 and 5 pounds,

No pushing or pulling over 10 pounds, No kneeling/squatting, No bending/stooping

and No Twisting.”

Dr. Munshi’s medical records then show office visits with Ray on August 17,

2021; September 23, 2021; October 7, 2021; October 28, 2021; December 14, 2021;

February 3, 2022; and February 15, 2022. At each of these appointments, Dr.

Munshi maintained the same work recommendation: “No return to work until further

notice due to current restrictions on activities of daily living[.]”

Next, Dr. Munshi’s medical records show that he performed back surgery on

Ray on March 16, 2022. Specifically, Dr. Munshi performed an anterior lumbar

interbody fusion and a posterior spinal fusion. Following surgery, Dr. Munshi’s

records show office visits with Ray on March 31, 2022; April 28, 2022; June 14,

2022; July 28, 2022; and August 16, 2022. And at each of these appointments, Dr.

Munshi’s recommendation of not returning to work remained unchanged.

Although no other medical records from Dr. Munshi are in evidence, Ray

testified that on November 1, 2022, he met with Dr. Juneau, an orthopedic surgeon,

for a required second medical opinion. Dr. Juneau’s report is dated that same day.

Here is the relevant part of that report:

I do not recommend any further surgery upon his lumbar spine at this point. I think that he would be at maximum medical improvement at the nine-month mark postoperatively which would be about January 1, 2023. If there are any questions regarding his ability to return to work and in what capacity, I would recommend he undergo a Functional Capacities Evaluation at this point in time.

Based on Dr. Juneau’s opinion as to maximum medical improvement,

Defendants discontinued Ray’s benefits on December 30, 2022.

4 Yet nearly two years later, on October 10, 2024, Dr. Juneau issued a

supplemental report. That report states in pertinent part:

Ray Pratt is seen again in the office today. I last saw him on 11- 1-22. When I saw him at that time, he had recently undergone a postoperative lumbar MRI, which showed a nice decompression at the L4-5 and L5-S1 levels. I thought that the patient would be at maximum medical improvement with reference to the lumbar operation by January 1, 2023, and I recommended that he undergo a Functional Capacities Evaluation to address his work capabilities. After the office visit on 11-1-22, the patient went back to see Ilyas Munshi, M.D. on 12-13-22. He also saw Dr. Munshi on 1-24-23 and Dr. Munshi felt that he would be at maximum medical improvement by July of 2023 and he recommended that a Functional Capacities Evaluation be done. He was seen by Dr. Munshi again on 7-11-23 and in that note Dr. Munshi states “he had an FCE done that showed he can do light/sedentary work[.]” The patient saw Dr. Munshi again on 9-5-23 and again in that office note Dr. Munshi states “he can only do sedentary/light duty work.” The patient was seen by Dr. Munshi again on 11-7-23 and in that office note Dr. Munshi recommended that the patient undergo a follow-up MRI of the lumbar spine. The patient saw Dr. Munshi again on 12-19-23 and in that office visit, Dr. Munshi reviewed the follow-up post-operative MRI of the lumbar spine that was done on 11-30-23 at Envision Imaging of Acadiana. This study showed only postoperative changes, and no residual neural impingement was noted on that study. Then the patient went back to see Dr. Munshi again on 2-27-24. On 4-25-24 he went back to see Dr. Munshi and in that office note Dr. Munshi stated “he can do sedentary/light duty work.”

....

. . . As I stated back on 11-1-22, I think that Ray Patt is at maximum medical improvement. I thought that he was at maximum medical improvement by 1-1-23. Dr. Munshi was following him and extended the maximum medical improvement to the summer of 2023. But, nonetheless, certainly as this point, Ray Patt in my opinion is at maximum medical improvement. He scored in the sedentary to light duty work category on the Functional Capacities Evaluation. I think it would be appropriate at this point for a vocational rehabilitation specialist to search the marketplace and find a job that is compatible with his present work capabilities.

Ray testified to many of these facts, including Dr. Munshi’s work

recommendations. Ray also confirmed that he had not worked since his accident in

July 2021.

5 In the end, the evidence clearly shows that Ray’s treating physician did not

release him for work—any kind of work—until July 11, 2023. Thus, the WCJ did

not manifestly err in finding that Ray was totally disabled from December 31, 2022,

through July 10, 2023, and in awarding him temporary total disability benefits for

that time.

Defendants’ Second Assignment of Error

In this assignment, Defendants assert that the WCJ legally erred in awarding

Ray supplemental earnings benefits. They specifically argue that the WCJ

prematurely shifted the burden of proof to them to defeat the claim.

Supplemental earnings benefits are addressed in La.R.S. 23:1221(3)(a)(i):

For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits, payable monthly, equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his wages by fifty- two and then dividing the product by twelve.

These benefits were at issue in Banks v. Industrial Roofing Sheet Metal Works,

Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. In that case, the supreme court provided

the following statement of law:

“The purpose of [supplemental earnings benefits] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). An employee is entitled to receive supplemental earnings benefits (SEBs) if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. LA.REV.STAT.ANN. § 23:1221(3)(a) (West Supp.1997). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his

6 inability to earn that amount under the facts and circumstances of the individual case. Freeman [v. Poulan/Weed Eater], 93-1530 at p. 7 [(La. 1/14/94)], 630 So.2d [733] at 739. “Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage.” Daigle v. Sherwin–Williams Co., 545 So.2d 1005, 1007 (La.1989).

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. LA.REV.STAT.ANN. § 23:1221(3)(c)(i) (West Supp.1997); Daigle, 545 So.2d at 1009.

Id. at 556 (fourth alteration in original).

Put simply, the burden of proof does not shift to the employer until the

employee proves an inability to earn ninety percent or more of his pre-injury wages.

And this initial burden is not satisfied by showing only that a work restriction

prevents the employee from returning to his former job. For example, in Bridges v.

Gaten’s Adventures Unlimited, L.L.C., 14-1132, p. 15 (La.App. 1 Cir. 4/2/15), 167

So.3d 992, 1003–04 (citation omitted), the first circuit explained:

The burden of proof does not shift to the employer merely because an employee proves she is unemployed at the time of trial or unable to obtain the same type of job as before the accident. Poissenot [v. St. Bernard Par. Sheriff’s Office, 09-2793 (La. 1/9/11)], 56 So.3d [170] at 178. A claimant’s testimony that she is no longer able to return to her pre-injury employment, without more, is insufficient to prove entitlement to supplemental earnings benefits. Sartin v. LSU/Bogalusa Medical Center, 07-1367 (La.App. 1 Cir. 2/8/08), 984 So.2d 777, 780. As explained by the supreme court, “The statute clearly places its focus on the amount of wages earned before and after the accident, not the type of occupation or the type of work performed.” Poissenot, 56 So.3d at 175.

In our case, the WCJ relied on Ray’s medical records and deposition

testimony in finding that he had satisfied his initial burden of proof. As the WCJ

put it:

7 So we have finally, in July [2023], MMI with a disability level of sedentary to light. Then we have evidence through the deposition, and that’s testimony saying they do not have a light duty job. So right there that’s telling you, you can’t make 90 percent because you don’t have a job to go back to.

So at that point, the burden of proof shifts and the employer should have done voc. rehab or identified jobs that would make 90 percent and if that were done, that would terminate the benefits. That wasn’t done.

To summarize, the WCJ concluded that Ray met his threshold burden by

showing two things: first, that he was restricted to sedentary and light jobs. And

second, that this work restriction prevented him from returning to his former job at

Amerigas. But this is plainly insufficient under the statute. Instead, the initial

inquiry is whether Ray presented prima facie evidence that he was unable to earn

ninety percent or more of his pre-accident average weekly wage from another job—

any job.

The WCJ here misapplied the law by prematurely shifting the burden of proof

to Defendants. This legal error interdicted the fact-finding process, thereby

necessitating de novo review. And based on our de novo review of the record, Ray

did not satisfy his initial burden of proof.

To illustrate, we know from Ray’s trial testimony that he was employed by

Amerigas as a truck driver. We also know that he did not renew his commercial

driver’s license because of his work restrictions. But that is it. There is no other

evidence of Ray’s earning capacity. He did not discuss his education level. He did

not talk about his work history. He did not mention his experience or transferable

8 skills. Nor did he say anything about the amount of his pre-injury wages paid by

Amerigas.1

If that were not enough, Ray admitted at trial making no effort to find another

job:

Q. [Ray], have you applied for work anywhere?

A. No, ma’am.

Q. And you’ve already said that you can return to light duty work, correct?

A. Yes, ma’am.

At a minimum, Ray was required to put on evidence that he looked for another

job, any job, after being released for sedentary to light work. For instance, in Joseph

v. J.E. Merit Constructors, Inc., 01-1666, p. 8 (La.App. 1 Cir. 6/21/02), 822 So.2d

72, 77, writ denied, 02-2295 (La. 4/4/03), 840 So.2d 1201, the claimant “testified

that she did not remember if she had applied for work anywhere since her last day

of work for J.E. Merit and stated that she has not been back to work for J.E. Merit.”

On that basis, the first circuit found that the claimant did not prove her entitlement

to supplemental earnings benefits.

In conclusion, Ray did not satisfy his initial burden of proof for supplemental

earnings benefits; the burden never shifted to Defendants. Thus, the WCJ’s award

of these benefits to Ray is reversed.

1 The WCJ’s oral reasons for judgment address Ray’s wages this way: “So I am finding – now, also the pleading, the 10-08 has at the bottom: Occupation, truck driver, average weekly wage $780, Workers’ Compensation rate $519.48. The answer does not specifically deny the AWW Workers’ Comp. rate.” Presumably, the WCJ treated these facts—average weekly wages and workers’ compensation rate—as judicial admissions.

9 Defendants’ Third Assignment of Error

In their final assignment, Defendants assert that the WCJ erred in awarding

Ray penalties and attorney fees. We disagree.

As stated earlier, Defendants discontinued payment of Ray’s benefits on

December 30, 2022. The applicable statute is La.R.S. 23:1201, which states in

relevant part:

I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

As noted, the record evidence shows that Ray’s treating physician was Dr.

Munshi; that Dr. Munshi recommended on July 29, 2021, that Ray not return to work

until further notice; and that this work recommendation did not change until July 11,

2023, when Dr. Munshi released Ray for “light/sedentary work.”

Even so, Defendants argue that the discontinuance of benefits was appropriate

because it was based on Dr. Juneau’s second medical opinion of November 1, 2022.

In his report, Dr. Juneau states: “I think that [Ray] would be at maximum medical

improvement at the nine-month mark postoperatively which would be about January

1, 2023.” But Dr. Juneau does not say that Ray could return to work upon reaching

maximum medical improvement. Instead, he states that “[i]f there are any questions

regarding his ability to return to work and in what capacity, I would recommend he

undergo a Functional Capacities Evaluation at this point in time.”

To sum up, the trial court did not manifestly err in awarding Ray penalties and

attorney fees. However, based on our disposition of Defendants’ second assignment

of error, we will amend the WCJ judgment to reduce the penalty amount from

10 $2,000.00 to $1,000.00, and we will amend the judgment to reduce the attorney fee

award from $8,000.00 to $4,000.00.

Ray’s Request for Additional Attorney Fees

In his appeal brief, Ray requests additional attorney fees for defending the

appeal. The same request was made and rejected in Clover, 357 So.3d 522. There,

this court explained:

“It is well-established that a workers’ compensation claimant who is successful in defending an appeal may be entitled to an award of additional attorney fees.” McCain v. Motel 6, 19-653, p. 11 (La.App. 3 Cir. 3/4/20), 297 So.3d 136, 143, writ denied, 20-764 (La. 10/6/20), 302 So.3d 535).

Here, there is no doubt that Claimant has incurred more costs in successfully defending his award from the WCJ’s judgment, and an award of attorney’s fees for work done on appeal may be proper. However, an appellee who neither answers an appeal nor appeals from the trial court’s judgment is not entitled to additional attorney’s fees for legal services rendered on appeal. La.Code Civ.P. art. 2133; Trejo v. Canaan Const., LLC, 52,697 (La.App. 2 Cir. 6/26/19), 277 So.3d 499. Although a request for additional attorney fees is made in his appeal brief, Claimant did not correctly request them by answering this appeal. “An assertion in a brief cannot serve as an answer to appeal.” Pritchard v. GEICO Ins. Co., 17-273, 17-274, p. 10 (La.App. 3 Cir. 11/8/17), 242 So.3d 787, 794.” Thus, we deny Claimant’s request for attorney fees incurred in the process of this appeal.

Id. at 532.

Like the claimant in Clover, Ray did not appeal the WCJ’s judgment. Nor did

he answer Defendants’ appeal. Ray’s request for additional attorney fees is therefore

denied.

DISPOSITION

For the above reasons, the part of the June 30, 2025 judgment that awarded

Ray temporary total disability benefits is affirmed. The part of the judgment that

awarded Ray supplemental earnings benefits is reversed. The part of the judgment

that awarded Ray penalties and attorney fees is amended to reduce the amount of the

11 penalties to $1,000.00 and to reduce the amount of the attorney fees to $4,000.00;

and as amended, that part of the judgment is affirmed.

The costs of this appeal are assessed as follows: one-half to Ray and one-half

to Defendants.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED IN PART.