Scardino v. LUBA

92 So. 3d 936, 11 La.App. 5 Cir. 645, 2012 WL 1192174, 2012 La. App. LEXIS 476
CourtLouisiana Court of Appeal
DecidedApril 10, 2012
DocketNo. 11-CA-645
StatusPublished

This text of 92 So. 3d 936 (Scardino v. LUBA) 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
Scardino v. LUBA, 92 So. 3d 936, 11 La.App. 5 Cir. 645, 2012 WL 1192174, 2012 La. App. LEXIS 476 (La. Ct. App. 2012).

Opinion

ROBERTA. CHAISSON, Judge.

12This is an appeal by Favalora Constructors, Inc., an employer, and LUBA, its insurer, from a judgment in this workers’ compensation action awarding benefits, penalties and attorney fees to Donald Scardino, an employee injured in a workplace accident. For the following reasons, we affirm the award of benefits, but vacate the awards for penalties and attorney fees.

[938]*938Mr. Scardino spent most of the thirty-six years of his working life in the various construction trades. He eventually was employed by Favalora in late 2006, as a construction site superintendent. On May 19, 2008, while moving a portable on-site water meter, he reportedly wrenched something in his back. He reported the injury to his employer that morning and was instructed to seek medical attention. He initially reported for an emergency room examination, and was referred to his treating physicians. It was eventually determined that he has been disabled from working since the time of that incident due to spinal disc injuries, and that he will need surgery if his condition is to improve.

| ¡¡Mr. Scardino sought workers’ compensation benefits from his employer and LUBA. Other than payment for the initial emergency room treatment, his application was denied. After a hearing before a workers’ compensation judge, judgment was entered in his favor. That judgment included the following findings of fact:

From all of the above [evidence] the Court finds that Claimant was a credible witness; that he was involved in an accident at work on May 19, 2008, while in the employ of Favalora Constructors, Inc.; that said accident was witnessed; that Scardino suffered an injury to his lower back as a result of said accident; that his average weekly wage of $1,040.00 would entitle him to the maximum compensation rate as of the date of his injury of $522.00 per week; that he did not make a false statement for the purpose of receiving workers’ compensation benefits; that he is temporarily totally disabled; that he has received no weekly indemnity benefits to date; that of his medical costs to date, only his initial emergency room visit has been paid; that no mileage benefits have been paid; that the Employer/Insurer have failed to reasonably contravene Scardi-no’s workers’ compensation claim, and that penalties and attorney fees would be due under these circumstances.

Based on the above findings, the judge ordered the employer/insurer to pay all weekly indemnity benefits from the time of the accident, as well as all medical bills and related mileage. He imposed penalties of $8,000.00, and awarded attorney fees of $13,000.00. Favalora and LUBA now appeal. Mr. Scardino, for his part, seeks additional awards for attorney fees and costs occasioned by this appeal.

Six of appellants’ seven assignments of error raise issues involving the trial judge’s factual determinations. The standard of appellate review of factual determinations is manifest error. Stobart v. State through DOTD, 617 So.2d 880 (La.1993). In Stobart, the court explained this standard as follows:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” This court has announced a two-part test for the reversal of a factfinder’s determinations:
|41) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was [939]*939a reasonable one. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Nonetheless, this Court has emphasized that the reviewing court must always keep in mind that if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.
This court has recognized that the reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. (Citations omitted)

Thus, in order to reverse the judgment in the present case, we must find that no reasonable factual basis existed for the findings of the trier of fact, and also that based on the record those findings were manifestly erroneous.

The pertinent facts are these. As noted above, Mr. Scardino was hired by Favalora in late 2006, as a site superintendent. He was supervising a crew in the construction of the foundation of a self-storage facility. He testified that a part of | Bhis duties was to open the tool shed in the mornings and get the equipment for the day organized for the crew. On May 19, 2008, he picked up the portable water meter being used on the job to put it on a front-end loader for transportation to the hook up point. As he put it down, he felt something “pop” in his back, accompanied by pain in his lower back radiating down his right leg. There were at least three other workers at the scene when the accident happened. Mr. Scardino phoned his immediate supervisor to tell him of the accident, and he was instructed to seek medical attention.

Later that morning, Mr. Scardino reported to the North Oaks Medical Center in Hammond, Louisiana, a facility near his home. The initial clinical impression was “back strain.” He was discharged with instructions to see his own doctor. Three days later, he saw his family physician, Dr. David Gaudin. This doctor’s initial impression was “lumbosacral radiculitis with chronic pain syndrome.” He suggested that Mr. Scardino see Dr. Fred DeFran-cesch, a pain specialist who had been treating him for several years.

Dr. DeFrancesch testified by way of deposition. He stated that he had first seen Mr. Scardino in January of 2004, for complaints of left lower back pain, and the original diagnosis included lumbar pain, low back pain and sacroiliac joint dysfunction.

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Bluebook (online)
92 So. 3d 936, 11 La.App. 5 Cir. 645, 2012 WL 1192174, 2012 La. App. LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scardino-v-luba-lactapp-2012.