Thibodeaux v. Sunland Const.

782 So. 2d 1203, 0 La.App. 3 Cir. 1472, 2001 La. App. LEXIS 736, 2001 WL 323862
CourtLouisiana Court of Appeal
DecidedApril 4, 2001
Docket00-1472
StatusPublished
Cited by8 cases

This text of 782 So. 2d 1203 (Thibodeaux v. Sunland Const.) 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
Thibodeaux v. Sunland Const., 782 So. 2d 1203, 0 La.App. 3 Cir. 1472, 2001 La. App. LEXIS 736, 2001 WL 323862 (La. Ct. App. 2001).

Opinion

782 So.2d 1203 (2001)

Sidney THIBODEAUX
v.
SUNLAND CONSTRUCTION.

No. 00-1472.

Court of Appeal of Louisiana, Third Circuit.

April 4, 2001.

*1205 Michael K. Leger, DeJean, DeJean, Leger & Mouret, Opelousas, LA, Counsel for Plaintiff/Appellant, Sidney Thibodeaux.

Charles J. Foret, Briney & Foret, Lafayette, LA, Counsel for Defendant/Appellee, Sunland Construction.

Court composed of DOUCET, C.J., and THIBODEAUX and WOODARD, Judges.

THIBODEAUX, Judge.

Plaintiff, Sunland Construction Company (hereinafter "Sunland"), appeals the judgment of the workers' compensation judge holding that a low back injury sustained by the defendant-appellee, Mr. Sidney Thibodeaux, Jr. (hereinafter "Mr. Thibodeaux") as he slipped and fell in his bathtub was causally related to a previous on-the-job injury. Sunland also appeals the workers' compensation judge's decision that Sunland's failure to approve shoulder surgery for Mr. Thibodeaux was arbitrary and capricious, which resulted in paying Sunland a penalty to Mr. Thibodeaux in the amount of $2,000 in addition to $7,500 in attorney fees. Mr. Thibodeaux answers Sunland's appeal and asks for an additional sum in attorney fees for handling this appeal.

We affirm the judgment of the trial court and award an additional $2,500 in attorney fees to Mr. Thibodeaux.

I.

ISSUES

The issues presented for review are: (1) did the workers' compensation judge commit manifest error in finding Mr. Thibodeaux's low back injury was causally related to his previous on-the-job injury? and (2) did the trial court commit manifest error in assessing penalties and attorney fees against Sunland for its failure to timely approve shoulder surgery recommended by Mr. Thibodeaux's treating physician?

II.

FACTS

Mr. Sidney Thibodeaux, Jr. was employed as a welder engaged in pipeline construction for Sunland, when he sustained *1206 work-related injuries on September 1, 1995 and September 18, 1995 which resulted in a right bicep tendon rupture, AC joint arthropathy and right shoulder impingement. Dr. Morgan J. Lorio, an orthopedic surgeon, initially treated Mr. Thibodeaux conservatively with anti-inflammatory medications and steroid injections.

Mr. Thibodeaux then underwent a left wrist fusion on August 20, 1997 and a left carpal tunnel release on June 18, 1998. Dr. Lorio also recommended right shoulder surgery. However, Mr. Thibodeaux decided to postpone the surgery to determine if he could live with the pain.

On January 15, 1999, Mr. Thibodeaux informed Dr. Lorio that due to the increasing pain in his shoulder he wanted to undergo the shoulder surgery. The shoulder surgery request was made to Sunland through its third-party administrator adjuster, Ms. Gloria Husser. Mr. Thibodeaux's attorney made the request by letter on January 18, 1999. The letter attached Dr. Lorio's medical report on January 15, 1999 requesting the shoulder surgery.

The shoulder surgery was not approved by Sunland until five months later on June 7, 1999. Mr. Thibodeaux subsequently had to postpone the shoulder surgery due to his wife having to undergo emergency surgery. Thereafter, Mr. Thibodeaux fell while getting out of his whirlpool bathtub when his right shoulder went into spasm causing him to fall across the side of the tub, injuring his lower back and hip. Mr. Thibodeaux did not seek immediate medical attention, but opted to wait a few days since he already had a previously scheduled doctor's appointment.

Sunland filed a LDOL WC 1008 on February 17, 1999 alleging that Mr. Thibodeaux's back injury was unrelated to his original accident and it should not be responsible for medical expenses associated with the lower back injury. On February 24, 1999, Mr. Thibodeaux answered Sunland's disputed claim and filed a reconventional demand concerning Sunland's refusal to authorize shoulder surgery and its refusal to authorize medical treatment of his lower back injury.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside the factual findings of a workers' compensation judge in the absence of manifest error or unless it is clearly wrong. Wackenhut Corrections Corp. v. Bradley, 96-796 (La.App. 3 Cir. 12/26/96); 685 So.2d 661. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Where there is a conflict in the testimony, "reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review" even though the appellate court may feel that its own evaluations and inferences are reasonable. Stobart v. State through Dep't of Transp. and Dev., 617 So.2d 880 (La.1993). Deference is due to the factfinder's determinations regarding the credibility of witnesses "for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Rosell v. ESCO, 549 So.2d 840 (La.1989).

Work-Related Injury

In order to recover workers' compensation benefits, a worker must first prove that he suffered an injury by an accident arising out of and in the course of his employment. La.R.S. 23:1031(A). An accident *1207 is defined as an "unexpected or unforeseen 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." La.R.S. 23:1021(1).

The aggravation of a prior work-related injury is compensable even though the aggravation occurs away from work. Stewart v. Hospitals Affiliates Int'l, Inc. of Baton Rouge, 404 So.2d 944 (La.1981). If the work-related injury predisposed the plaintiff to the second injury, then a causal connection is found between the two accidents and the plaintiff is entitled to compensation. Kelly v. City of New Orleans, 414 So.2d 770 (La.1982); Lacy v. PPG Indus., Inc., 93-1588 (La.App. 3 Cir. 6/1/94); 640 So.2d 655, writ denied, 94-1703 (La.10/7/94); 644 So.2d 639. Since the findings of fact in a workers' compensation case are subject to the manifest error-clearly wrong standard of review, they will only be reversed if they are clearly wrong. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98); 708 So.2d 375.

The Workers' Compensation Act is construed liberally in favor of the worker, however, this does not relax the worker's burden of proof. Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992). This burden of proof requires the worker to establish, by a preponderance of the evidence, that a work-related accident occurred. Burns v. Beauregard Nursing Cent., 94-131 (La.App. 3 Cir. 10/5/94); 643 So.2d 443. The worker's testimony alone may be sufficient to satisfy this burden, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident, and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Bruno, 593 So.2d 357. Corroboration may be proven by the testimony of fellow workers, spouses, other close family members, friends, or the introduction of medical evidence. Id.

The workers' compensation judge found the injury to Mr. Thibodeaux's lower back was due to his shoulder giving out as he was attempting to get out of his bathtub and therefore causally related to his on-the-job injury.

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Bluebook (online)
782 So. 2d 1203, 0 La.App. 3 Cir. 1472, 2001 La. App. LEXIS 736, 2001 WL 323862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibodeaux-v-sunland-const-lactapp-2001.