Sterling v. Asplundh Tree Expert Co.

856 So. 2d 125, 3 La.App. 3 Cir. 266, 2003 La. App. LEXIS 2624, 2003 WL 22242051
CourtLouisiana Court of Appeal
DecidedOctober 1, 2003
Docket2003-266
StatusPublished
Cited by17 cases

This text of 856 So. 2d 125 (Sterling v. Asplundh Tree Expert 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
Sterling v. Asplundh Tree Expert Co., 856 So. 2d 125, 3 La.App. 3 Cir. 266, 2003 La. App. LEXIS 2624, 2003 WL 22242051 (La. Ct. App. 2003).

Opinion

856 So.2d 125 (2003)

Richard STERLING
v.
ASPLUNDH TREE EXPERT CO.

No. 2003-266.

Court of Appeal of Louisiana, Third Circuit.

October 1, 2003.

Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff-Appellee/Richard Sterling.

*126 Christopher Richard Philipp, Lafayette, LA, for Defendant-Appellant/Asplundh Tree Expert Co.

Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.

THIBODEAUX, Judge.

In this workers' compensation case, defendant, Asplundh Tree Expert Company (Asplundh), appeals the judgment of the Workers' Compensation Judge (WCJ) in favor of plaintiff, Richard Sterling. The WCJ found that Sterling suffered an accident and consequent back injury while in the course and scope of his employment with Asplundh, and was improperly denied payment of workers' compensation benefits. Because Asplundh failed to pay Sterling workers' compensation benefits, the WCJ awarded penalties in the amount of $4,000.00 and attorney fees in the amount of $10,950.00 as well as expenses in the amount of $737.01. Further, Asplundh appeals the trial court's calculation of Sterling's average weekly wage rate which included his paid vacation days and paid legal holidays.

For the following reasons, we affirm the judgment of the Office of Workers' Compensation.

I.

ISSUES

We shall consider:

(1) whether the WCJ committed error in finding that Sterling was involved in an accident while in the course and scope of his employment that caused injury to his back and, in doing so, awarding him supplemental earnings benefits (SEB) and payment for medical treatment; (2) whether the WCJ's calculation of Sterling's SEBs was proper; and, (3) whether the WCJ committed error in awarding Sterling penalties and attorney fees.

II.

FACTS

There is no dispute that in September 1999, Sterling was employed by Asplundh as a laborer, and that he was working on Avery Island. He had been employed by Asplundh since October 18, 1993. Sterling's job duties working for the tree trimming company included pulling brush, as well as picking up tree trimmings and putting them into a chipper. Sterling testified that on September 8, 1999, he was pulling brush from the bottom of a hill to take to the top of the hill on Avery Island, in New Iberia. He was working with Alibie Tauzin, who was trimming the trees from around the power lines. The hill was wet and slippery. As Sterling pulled the tree trimmings up the hill, he felt a sudden pain in his back. At that point, he did not tell Tauzin he hurt his back. He took a deep breath and kept on working. Later in the evening, he informed Tauzin about his earlier back pain. He told Tauzin he "wasn't doing good.... [He] was hurting on [his] back."

Sterling was taking pain pills at the time and did nothing about his back. He testified that he did not think it was serious and went to work the next day, September 9, 1999. He did not do well the next day. On September 10, 1999, Sterling went to University Medical Center (UMC) because his back was still hurting. He told the attending physician that he hurt his back at work while pulling brush up a hill. He was treated for back pain. He did not go back to work. Sterling testified that he told his supervisor, Steve Venable, about hurting his back. He also told Venable that his doctor recommended that he take a CT scan of his back. Venable denies that Sterling told him about his back.

*127 Tauzin also denies that Sterling told him about his back hurting. Both testified that had they been told about Sterling hurting his back on the job, he would have had to take a drug test as per Asplundh's company policy. Sterling did not take a drug test.

Venable testified that Asplundh continued to pay Sterling his regular wages of $360.00 per week because he was such a good employee and had been working with Asplundh for many years. However, payment of his wages was transferred to another Asplundh crew headed by Keith Lewis, not the crew on which Sterling worked. Asplundh stopped paying Sterling's wages on February 12, 2000. Thereafter, on July 12, 2000, Sterling filed a claim for payment of disability and medical expenses as well as penalties and attorney fees. Asplundh answered Sterling's claim denying that he sustained an injury while in the course and scope of his employment.

After trial in this matter, the WCJ ruled from the bench in favor of Sterling and ordered Asplundh to pay him SEB in the amount of $283.85 per week beginning September 10, 1999. Asplundh was given a dollar-for-dollar credit for all wages it paid Sterling in lieu of workers' compensation benefits. Asplundh was also ordered to pay for Sterling's reasonable medical treatment related to his back injury. Lastly, Asplundh was ordered to pay $4,000.00 in penalties and $10,950.00 in attorney fees along with expenses in the amount of $737.01. From this adverse judgment, Asplundh appeals.

III.

LAW AND DISCUSSION

Standard of Review

The standard of review in a workers' compensation hearing was set out in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556:

Factual findings in workers' compensation cases are subject to the manifest error clearly wrong standard of review. Smith v. Louisiana Dep't of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulon/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, "if the [factfinder'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." Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Occurrence of Accident While in the Course and Scope of Employment

Asplundh asserts that the WCJ committed error in finding that Sterling proved the occurrence of an accident while in the course and scope of his employment resulting in an injury to his back.

Louisiana Revised Statutes 23:1031 requires a workers' compensation claimant to initially establish "personal injury by accident out of and in the course of his employment." Bruno v. Harbert International, *128 Inc., 593 So.2d 357, 360 (La.1992). Louisiana Revised Statutes 23:1021 defines an accident, for purposes of workers' compensation:

Accident means an unexpected or unforseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

In Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir. 12/16/98); 724 So.2d 853, 855, this court discussed the claimant's burden of proving that an accident occurred:

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Bluebook (online)
856 So. 2d 125, 3 La.App. 3 Cir. 266, 2003 La. App. LEXIS 2624, 2003 WL 22242051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sterling-v-asplundh-tree-expert-co-lactapp-2003.