Thibodaux v. Grand Isle Shipyard, Inc.

207 So. 3d 459, 2016 La.App. 4 Cir. 0583, 2016 La. App. LEXIS 2340
CourtLouisiana Court of Appeal
DecidedDecember 21, 2016
DocketNO. 2016-CA-0583
StatusPublished
Cited by4 cases

This text of 207 So. 3d 459 (Thibodaux v. Grand Isle Shipyard, Inc.) 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
Thibodaux v. Grand Isle Shipyard, Inc., 207 So. 3d 459, 2016 La.App. 4 Cir. 0583, 2016 La. App. LEXIS 2340 (La. Ct. App. 2016).

Opinion

Judge Edwin A. Lombard

|! Grand Isle Shipyard, Inc. (“GIS”), and its insurer, Gray Insurance Company (“Gray”), collectively “the Appellants,” seek review of the March 2, 2016 judgment of the Office of Worker’s Compensation (“OWC”) awarding the Appellee, David Thibodaux, Jr., supplemental earnings benefits, medical payments, penalties, attorneys’ fees and costs. Finding that the judgment of the OWC is neither manifestly erroneous nor clearly wrong, we affirm.

This appeal involves Mr. Thibodaux’s Disputed Claim for Compensation stemming from an injury he allegedly sustained in the course and scope of his employment on the afternoon of June 24, 2013. On said date, Mr. Thibodaux was employed as a truck driver by GIS, which is located in Larose, Louisiana.1 Mr. Thibodaux was operating an 18-wheeler in the Lafarge yard in Isabel, Louisiana, where he was picking-up sand for GIS. While driving in the Lafarge yard, Mr. Thibodaux’s truck stalled in a sand-filled pothole through which he had attempted to drive. The front axle of the 18-wheeler broke as result of hitting the pothole.

| aMr. Thibodaux testified that the 18-wheeler bounced around while it was stuck in the pothole. He further explained that he was jostled in the cabin of the 18-wheeler striking his left arm on an arm rest. Ultimately, he succeeded in changing gear and stabilizing the vehicle. The operator of the Lafarge yard towed the 18-wheeler out of the hole. Mr. Thibodaux testified that he contacted his supervisor, Andrew Dufrene, to inform him that the 18-wheeler was inoperable. Mr. Dufrene, he explained, instructed him to have the vehicle towed outside of the Lafarge yard and that mechanics would be dispatched. Mr. Thibodaux returned to Larose with the mechanics from the Lafarge yard.

Mr. Thibodaux reported to work the following day. He alleges that within a day or two after the accident he advised Mr. Du-frene that he was injured as a result of the June 24th accident and requested to be sent to a doctor because he was experiencing pain in his neck, left shoulder and left ear. He testified that Mr. Dufrene failed take any action. The Appellants and Mr. Dufrene refute this claim. The parties stip[463]*463ulated that the last day that Mr. Thibo-daux worked was July 17, 2013. They further stipulated that eight days later, on July 25, 2013, Mr. Thibodaux was terminated by GIS. Mr. Thibodaux had not filed a workers’ compensation claim before and testified that he was not informed by anyone at GIS how to do so.

Following the accident and just prior to his termination, on July 18, 2013, Mr. Thi-bodaux sought medical treatment from his primary care physician, Dr. Gary Birdsall. Dr. Birdsall had been his primary care physician for ten years. Presenting for treatment complaining of left ear pain and neck pain, he was diagnosed as having neck pain and a neck spasm. Dr. Birdsall prescribed pain medications, Naprosyn and Skelaxin, to Mr. Thibodaux. Mr. Thi-bodaux missed |sseveral days of work after receiving his medication and was terminated during this period. Mr. Thibodaux testified that he unable to afford further medical treatment.

On August 1, 2013, Mr. Thibodaux was treated for neck pain by Dr. Brent Tat-ford, an emergency room physician at the Leonard J. Chabert Medical Center in Houma, Louisiana. In his deposition testimony, Dr. Tatford explained that Mr. Thi-bodaux relayed that his neck pain began after a car accident that had occurred a year prior to his visit.2 He further testified that Mr. Thibodaux stated that for three months he had experienced pain radiating down his left arm to his fingers.

Dr. Tatford performed a physical exam; ordered an x-ray of Mr. Thibodaux’s C-spine; gave him an I.M. steroid injection;3 ordered an MRI of his neck and an EMG of his left arm; and executed a referral to neurology for his radicular symptoms. The MRI was not performed and the EMG showed normal results. Dr. Tatford further testified that the x-ray results showed Mr. Thibodaux had degenerative joint disease at the C5-C6 and C6-C7 levels. Dr. Tat-ford prescribed pain medications, Metho-carbamol and Tramadol, to Mr. Thibodaux.

On February 7, 2014, counsel for Mr. Thibodaux sent correspondence to Edward Levert, an adjuster for Gray, advising that Mr. Thibodaux was in need of medical treatment and indemnity benefits. Mr. Le-vert replied via facsimile that the correspondence sent on Mr. Thibodaux’s behalf failed to identify Mr. Thibodaux’s employer, the date and nature of his injury, and omitted relevant facts and medical reports. Mr. Levert further explained that he would need such information in order |4to evaluate Mr. Thibodaux’s request. On February 26, 2014, counsel for Mr. Thibodaux supplied Mr. Levert, via facsimile, with the name of his employer and the location of the accident, and submitted a Choice of Physician Form requesting treatment from an orthopedic surgeon. On the same date, Mr. Levert responded via e-mail that he still needed the date of the accident and requested to take Mr. Thibodaux’s recorded statement in order to proceed with his evaluation of the claim. Thereafter, no further correspondence was exchanged between the parties.4

[464]*464Mr. Thibodaux filed a Disputed Claim for Compensation seeking medical and indemnity benefits on June 16, 2014. In October 2014, he began receiving medical treatment from Louisiana Primary Care Consultants (“LPCC”), under the care of Dr. Norman Ott. Dr. Ott placed Mr. Thibo-daux on light duty status and diagnosed him as having a cervical strain, left shoulder radiculopathy and left shoulder sprain.

Trial was held on February 16, 2016. In support of his claim, Mr. Thibodaux testified and produced the medical records from LPCC, where he received the majority of his post-accident treatment. The parties stipulated that Mr. Thibodaux’s testimony would have been corroborated by his sister and father, Charmaine Rogers and David Thibodaux, Sr., respectively. Messrs. Dufrene and Levert testified on behalf of the Appellants, who also introduced the depositions of Doctors Birdsall and Tatford into evidence with their respective medical records.

Following the trial, the OWC rendered judgment in favor of Mr. Thibodaux and against the Appellants. The OWC held that Mr. Thibodaux sustained his burden of proof regarding accident, injury and disability in connection with his | a June 24, 2013 work-place accident. The OWC further reasoned that Mr. Thibodaux is entitled to supplemental earnings benefits at zero earning capacity from July 26, 2013 to February 16, 2016. Additionally, the OWC held that his treatment with Dr. Ott and LPCC be authorized, and that the Appellants pay the medical bills for the providers associated with Mr. Thibodaux’s treatment, as well as for his future medical treatment. The OWC further held that the Appellants failed to reasonably controvert Mr. Thibodaux’s claim. The Appellants were ordered to pay $4,000 in penalties, $4,000 in attorneys’ fees, and were assessed with all costs. The OWC adopted Mr. Thibodaux’s post-trial memorandum as its Reasons for Judgment.

This timely appeal by the Appellants followed. The Appellants raise five assignments of error on appeal:

1. The OWC erred in finding that Mr. Thibodaux met his burden at trial of proving that he sustained injuries as a result of a work-related incident;
2. The OWC erred in finding that Mr.

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Bluebook (online)
207 So. 3d 459, 2016 La.App. 4 Cir. 0583, 2016 La. App. LEXIS 2340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibodaux-v-grand-isle-shipyard-inc-lactapp-2016.