Salazar v. Command Construction, LLC

117 So. 3d 118, 12 La.App. 5 Cir. 680, 2013 WL 1287383, 2013 La. App. LEXIS 612
CourtLouisiana Court of Appeal
DecidedMarch 27, 2013
DocketNo. 12-CA-680
StatusPublished
Cited by2 cases

This text of 117 So. 3d 118 (Salazar v. Command Construction, 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
Salazar v. Command Construction, LLC, 117 So. 3d 118, 12 La.App. 5 Cir. 680, 2013 WL 1287383, 2013 La. App. LEXIS 612 (La. Ct. App. 2013).

Opinion

SUSAN M. CHEHARDY, Chief Judge.

| ¿This is a workers’ compensation case in which the employer appeals a judgment in favor of the claimant that awarded disability benefits, medical expenses, and penalties and attorney’s fees. We affirm.

FACTS

On May 13, 2011, Pedro Salazar filed a Disputed Claim for Compensation against Command Construction, LLC. Salazar, a laborer classified as a carpenter, alleged that on March 23, 2011, he was injured on the job while lifting several heavy metal forms. He claimed injury in his shoulder/back area.

The employer contested the claim.1 It denied that the claimant had an accident in the course and scope of employment, denied that he had any present work-related disability, and denied that he had rights to any benefits whatsoever.

The case came to trial before an Office of Workers’ Compensation judge on April 16, 2012. The parties stipulated that the claimant was an employee of Command Construction on the date of the alleged accident, his average weekly wage was $453.38, and his workers’ compensation rate was $302.27. The parties also stipulated to the authenticity and admissibility of the underlying claim [{¡documentation, entered as joint exhibits, which included the forms submitted to the Office of Workers’ Compensation, medical records and medical bills, depositions or parts of depositions of two witnesses, and various other documents. Among them was correspondence from the workers’ compensation insurer dated April 5, 2011, informing the claimant, “We have completed our investigation ... and find that you have not sustained a compensable work related claim. Therefore, ... we must respectfully deny your claim.”

Trial Testimony

The claimant testified he injured his back while working for Command Construction at the Earhart Boulevard Job Site in New Orleans on the afternoon of [123]*123March 23, 2011. He said he sustained the injury while lifting a heavy cement form. His brother, Raul Salazar, who also was an employee of Command Construction and was working near the claimant, did not see the accident, but confirmed that his brother was in pain at the end of the day. Bryan Monte, the crew supervisor, testified that his crew, including both the claimant and Raul Salazar, was working wrecking forms on the afternoon of March 23, 2011, which involved lifting forms that weighed up to 250 pounds and required three to four men to lift.

The claimant testified he completed the workday, but was unable to report the accident that day because Monte, his supervisor, was not in the area where he was working. Further, he did not know the extent of his injury when he left work. Both the claimant and Raul Salazar testified that the claimant attempted to reach Monte by phone that evening, but that he was unsuccessful.

Both the claimant and Raul Salazar testified that the claimant was not having any problem with his back prior to the accident and that he was now having backhand left shoulder problems because of the accident. They testified that the claimant was in a lot of pain on the evening of the accident, March 23, 2011. The claimant intended to tell his supervisor, Monte, on the following morning, March 24, 2011. When he arrived at the jobsite on the morning of March 24, 2011, however, he was met at his truck by Monte. Before he could tell him about the accident, Monte handed him a Personnel Action Form, which he wanted him to sign, involving an incident that occurred the day before at work between the claimant and another supervisor, Patrick Jackson. The claimant testified he did not sign the form because there was no place on the form for him to sign.

The claimant subsequently told Bryan Monte about his accident. Monte wrote an accident report and told the claimant he could go to the company doctor, but the claimant preferred to go to his family doctor.

The claimant was driven home that day by his brother, Raul Salazar. He went immediately to his family doctor, Dr. Michael Davis, on March 24, 2011, and told him of his low-back pain and left shoulder pain as a result of lifting at work the day before. The doctor told him to stay out of work from March 24, 2011 through March 29, 2011. The claimant reported this to the company.

Although he continued to feel pain, the claimant contacted the construction foreman, Byron Dupre, on March 29, 2011, because he was scheduled to return to work on March 30, 2011. He was told that he needed a full release form from the doctor.

When the claimant returned to his family doctor on April 1, 2011, Dr. Davis refused to release him because of his continuing left shoulder and low back pain. Dr. Davis informed Pedro Salazar that his clinic did not deal with workers’ compensation and referred him to the Industrial Medical Clinic. When he | .^contacted his employer about his medical treatment, he was told that he needed to meet with the company about the claim.

He subsequently complied with the company’s request by meeting with an adjuster with Gray Insurance Company, while he was unrepresented. His claim was ultimately denied by Gray Insurance Company in a letter dated April 5, 2011.

After seeking counsel, the claimant saw Dr. F. Allen Johnston, an orthopedic surgeon, on April 20, 2011. He was taken out of work indefinitely and placed on medication. He had follow-up visits on June 1, [124]*124July 13, and August 24, 2011. Dr. Johnston ordered him to refrain from working. Physical therapy was prescribed for the claimant’s lower back and shoulder, but it was not authorized.

On September 6, 2011, the claimant sought therapy and treatment with Louisiana Rehabilitation and Spine Institute, LLC, and Dr. Ward Sudderth. The claimant has continued to receive therapy and treatment. He has been deemed temporarily totally disabled and not fit for duty by his doctors. The medical records are uncontroverted. The claimant has not worked since the day of the accident, March 23, 2011.

The employer contested that any accident occurred, relying on testimony of other witnesses that contradicted the claimant’s. The employer sought to establish numerous circumstances that discredited or cast doubt on the claimant’s version of events. The employer asserted the claimant did not report the accident on the day of the alleged accident; instead, the claimant showed up for work the day following the supposed accident dressed and ready to work. It was only after the claimant was told he was being reprimanded for an argument with a supervisor the day before and sent home that he first reported an accident. None of the potential witnesses identified by the claimant himself as being in the vicinity of the alleged |fiaccident saw or recalled any accident. The claimant called the jobsite foreman, Byron Dupre, days after the accident, indicating that he wanted to return to work.

Further, the claimant’s brother, who testified on behalf of the claimant, did not see the accident, but heard about it from the claimant. Counsel for the employer elicited testimony from Raul Salazar that he had been paying the living expenses of the claimant ■ because the claimant had not worked since March 23, 2011.

Ruling of the Court

In written Reasons for Judgment, the judge found as follows, in pertinent part:

Although there was contradictory testimony concerning the occurrence of the accident, the occurrence was corroborated by the medical report of Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
117 So. 3d 118, 12 La.App. 5 Cir. 680, 2013 WL 1287383, 2013 La. App. LEXIS 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salazar-v-command-construction-llc-lactapp-2013.