STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-208
VIEL OLIVIER
VERSUS
OLIVIER BUILDERS
********** APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 04 PARISH OF LAFAYETTE, NO. 06-3499 SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, James T. Genovese, and Shannon J. Gremillion, Judges.
AFFIRMED IN PART, REVERSED IN PART; AMENDED IN PART; AND RENDERED.
Michael B. Miller P.O. Drawer 1630 Crowley, LA 70527-1630 (337) 785-9500 COUNSEL FOR PLAINTIFF/APPELLANT/APPELLEE: Viel Olivier
Mark Ackal Mark Ackal & Associates 110 East Kaliste Saloom Road, Suite 208 P.O. Box 52045 Lafayette, LA 70505-2045 (337) 237-5500 COUNSEL FOR DEFENDANTS/APPELLANTS/APPELLEES: Olivier Builders and LUBA COOKS, Judge.
On June 23, 2003, Viel Olivier alleges he hurt his back and knee while
unloading a commercial miter saw out of the rear of his truck after performing some
carpentry trim work. Mr. Olivier was a self-employed carpenter, operating under the
name of Olivier Builders – a business he owned and was its sole employee. In his
capacity as owner of Olivier Builders, he contracted with LUBA to purchase workers’
compensation insurance. Mr. Olivier informed LUBA he was making $27,300.00
annually, and using its payment scale LUBA set his premium at $3,683.00 per year.
After the alleged accident on June 23, 2003, the records revealed Mr. Olivier
went to his family doctor a few days later. The doctor diagnosed that he suffered a
shoulder and back sprain, as well as a knee contusion. The following week, Mr.
Olivier sent to LUBA the required injury report. Apparently, LUBA’s adjustor felt
the injury was compensable, and indemnity payments were instituted in the amount
of $350.00 per week. LUBA reduced Mr. Olivier’s weekly compensation benefits
after determining he was actually earning far less that the amount he told LUBA, and
was only entitled to the minimum amount of benefits due, $114.00 per week.
Mr. Olivier filed a Disputed Claim for Compensation Benefits on June 2, 2006,
seeking workers’ compensation benefits due him, as well as penalties and attorney
fees. Made defendants were Olivier Builders and, its workers’ compensation carrier,
LUBA. Mr. Olivier contended LUBA’s indemnity benefits payments to him were in
improper amounts and were not timely. He also contended they refused to provide
him necessary medical treatment.
LUBA argued Mr. Olivier did not injure himself in the manner asserted, and
alleged deception and fraud on the part of the claimant. They also alleged any
miscalculation of benefits resulted in an overpayment, not underpayment, of benefits
-1- to Mr. Olivier. Lastly, LUBA contended Mr. Olivier was capable of performing light-
duty work and has refused to cooperate with vocational rehabilitation efforts.
After a hearing, the workers’ compensation judge (WCJ) made the following
rulings, which constituted the judgment of the court:
(1) Mr. Olivier was injured in the course and scope of his employment on June 23, 2003, and was entitled to weekly benefits in the amount of $114.00 per week, subject to a credit for all weekly benefits previously paid;
(2) All reasonable and necessary medical treatment recommended by Mr. Olivier’s treating physician was authorized;
(3) A $300.00 penalty was assessed for the delay in starting indemnity payments;
(4) A $2,000.00 penalty was assessed against LUBA for a failure to authorize knee x-rays;
(5) A $2,000.00 penalty or twelve percent, whichever is greater, was assessed against LUBA for improperly reducing the weekly benefits as of June 1, 2005;
(6) A $2,000.00 dollar penalty or twelve percent, whichever is greater, was assessed against LUBA for failing to reinstate benefits upon receipt of Dr. Hodges’ report that showed Mr. Olivier was again unable to work;
(7) Attorney fees were set at $19,328.00, based on the 83 hours Mr. Olivier’s counsel advised the court he spent prosecuting the claim and his incurred expenses.
LUBA appealed the WCJ’s judgment, and asserts the following four assignments of
error:
1. The finding by the WCJ that claimant sustained personal injuries as a result of an accident in the course and scope of his employment with Olivier Builders is manifestly erroneous;
2. The WCJ was clearly wrong in failing to find claimant violated La.R.S. 23:1208, thereby forfeiting all rights to compensation benefits;
3. The finding by the WCJ that claimant is entitled to indemnity benefits in manifestly erroneous;
-2- 4. The WCJ erred in assessing penalties and attorney fees.
Mr. Olivier also filed his own appeal, asserting the following assignments of
1. It was error for the WCJ to find Mr. Olivier was only entitled to benefits at the rate of $114.00 per week;
2. The WCJ erred in failing to exclude the defenses of LUBA due to the conflict of interest of defense counsel;
3. The WCJ failed to award legal interest on all amounts due.
ANALYSIS
It is well established that the standard of appellate factual review in workers’
compensation cases is the same as for other civil cases, i.e., whether the findings
made by the trier of fact are manifestly erroneous or clearly wrong. Banks v.
Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551;
Freeman v. Poulan/Weed Eater, 93-1530 (La. 1/14/94), 630 So.2d 733; Bruno v.
Harbert Int’l, Inc., 593 So.2d 357 (La.1992); Rosell v. ESCO, 549 So.2d 840
(La.1989). The issues of whether a claimant has carried his burden of proof as to the
occurrence of a work-related accident that caused an injury entitling him to workers’
compensation benefits, whether testimony is credible, and whether the refusal to pay
benefits and medical expenses warrants the imposition of penalties and attorney’s fees
are all questions of fact that are governed by the manifest error standard. Roberts v.
Thibodaux Healthcare Center, 05-774 (La.App. 1 Cir. 3/24/06), 934 So.2d 84.
Under the manifest error rule, an appellate court does not decide whether the factual
findings are right or wrong, but whether they are reasonable. Id.
I. LUBA’s Appeal.
In its first assignment of error, LUBA argues the WCJ manifestly erred in
finding Mr. Olivier sustained injuries as a result of a work-related accident. It is
-3- undisputed that the alleged accident suffered by Mr. Olivier was unwitnessed.
However, the law is clear that a worker’s testimony alone may be sufficient to
discharge his burden of proving a work-related accident, 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; West v. Bayou
Vista Manor, Inc., 371 So.2d 1146 (La.1979). Corroboration may be provided by
medical evidence. West, 371 So.2d at 1150. The trial court’s determinations as to
whether the worker’s testimony is credible and whether the worker has discharged his
or her burden of proof are factual determinations not to be disturbed on review unless
clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farm, Inc.,
535 So.2d 822 (La.App. 2 Cir.), writ denied, 536 So.2d 1200 (La.1988).
The Employer’s First Report of Injury, which was filled out by Mr. Olivier the
day after the accident, is consistent with his description of the accident. The history
provided to Dr. Felton, who treated Mr. Olivier after the accident, was also consistent
with Mr. Olivier’s version of the accident. Dr. Felton also found objective findings
to substantiate Mr. Olivier’s claims of injury.
LUBA argues Mr. Olivier was unable to recall many of the details surrounding
the accident. The WCJ specifically noted that Mr.Olivier’s memory of events came
“up a little short in the depth of details he provided,” but felt that was entirely
consistent with the lengthy delay between the date of the injury and when Mr. Olivier
was deposed and testified at trial. The record reveals Mr. Olivier was not deposed
until September 11, 2007, which was over four years from the accident. The WCJ
found Mr. Olivier to be credible, stating he was “a plain-spoken, forthright worker
probably past his physical prime, who decidedly has not embarked on a scheme to
-4- defraud anyone.” We also note LUBA paid Mr. Olivier benefits for several years,
until it suddenly called into question the legitimacy of his claim that he suffered a
work-related accident.
After examining the record, we cannot say the WCJ was manifestly erroneous
in his conclusion that Mr. Olivier proved the occurrence of a work-related accident.
The WCJ made credibility determinations in favor of Mr. Olivier, which we find no
reason to disturb, and we uphold the finding that a work-related accident occurred.
In its second assignment of error, LUBA argues the WCJ was clearly wrong in
failing to find claimant committed fraud under La.R.S. 23:1208, thereby forfeiting all
rights to compensation benefits. In its argument, LUBA contends Mr. Olivier “lied
at his deposition, he lied to his treating physicians and he lied at the trial on this
matter.” However, as noted in the discussion on the previous assignment of error, the
WCJ specifically found Mr. Olivier credible in his representations and testimony
throughout the proceedings. Finding no manifest error in that conclusion, we find no
merit in LUBA’s contention that Mr. Olivier violated La.R.S. 23:1208.
LUBA also argues the WCJ was manifestly erroneous in concluding Mr.
Olivier was entitled to indemnity benefits. We disagree. Dr. Hodges, the treating
physician, issued a report on September 7, 2005 stating Mr. Olivier was unable to
work. Since that time, no reports from any other physician have been issued to
contradict that conclusion. Therefore, the WCJ did not err in finding Mr. Olivier was
entitled to indemnity benefits.
LUBA also asserts the WCJ’s assessments of penalties and attorney fees were
not supported by the record. The WCJ assessed the following penalties: (1) $300.00
for the delay in starting indemnity payments; (2) $2,000.00 for the failure to authorize
knee x-rays; (3) $2,000.00 or twelve percent, whichever is greater, for improperly
-5- reducing the weekly benefits as of June 1, 2005; and (4) $2,000.00 or twelve percent,
whichever is greater, for the failure to reinstate benefits upon receipt of Dr. Hodges’
report showing Mr. Olivier was again unable to work. The WCJ also awarded
$19,328.00 in attorney fees.
We find no error in the assessment of a $300.00 penalty for not starting
indemnity payments on time. Our review of the record indicates the WCJ did not err
in finding the first payment was six days late. The first payment made to Mr. Olivier
was dated August 25, 2003. Defendants were aware that Mr. Olivier’s physician
determined he was disabled and unable to return to work on August 5, 2003.
Therefore, under La.R.S. 23:1221, the first compensation check was required to be
paid within fourteen days of that date, or August 19, 2003. Thus the payment dated
August 25, 2003, was six days late.
The WCJ also awarded a $2,000.00 penalty for LUBA’s failure to authorize
knee x-rays. LUBA argues there was no evidence in the record that it ever denied a
request for knee x-rays. We disagree. Dr. Felton’s records indicate x-rays of the
lumbar spine, upper back and knee were requested after Mr. Olivier’s June 25, 2003
visit. The lumbar spine and upper back x-rays were approved and performed.
However, Dr. Felton specifically testified that LUBA denied the knee x-rays.
Therefore, the WCJ did not err in imposing this penalty.
LUBA also argues the WCJ erred in awarding a $2,000.00 penalty for
improperly reducing compensation benefits. The WCJ gave the following reasons for
awarding this penalty:
LUBA’s reduction of his weekly compensation benefits on June 1, 2005, from Fifteen Hundred Sixteen Dollars Seventy-five Cents per month to Four Fifty-four per month was both unnecessary, excessive and thoroughly improper. There was nothing approaching persuasive testimony to show that Mr. Olivier was at all uncooperative and recalcitrant in the vocational rehabilitation efforts, such as they were.
-6- From all accounts, he dutifully applied for every single job submitted to him by the voc [sic] counselor. But not surprisingly, this sixty-year-old carpenter with bad knees, messed up shoulder and back problems was not in great demand for those jobs for which he was sent to apply.
We find the record supports the WCJ’s reasoning. LUBA argues, because it was later
determined that it was entitled to a credit for overpayments paid to Mr. Olivier, it
should not have been assessed penalties for an improper reduction. The law is clear
that for the purposes of assessing penalties, the decision to reduce benefits must be
based upon facts existing and known to the employer/insurer at the time of the
reduction. Theriot v. American Employees Ins. Co., 482 So.2d 648 (La.App. 3 Cir.
1986); Thibodeaux v. Dresser Industries, Inc., 407 So.2d 37 (La.App. 3 Cir.), writ
denied, 412 So.2d 85 (La.1982). There was no showing by LUBA that there were any
facts known to it at the time of the reduction that Mr. Olivier’s weekly benefits were
being overpaid. The benefits were reduced on July 1, 2005. The reason given by the
adjuster was that Mr. Oliver was capable of obtaining gainful employment. As Mr.
Olivier notes, the information regarding a possible credit was obtained long after the
reduction of benefits was taken, and after suit was filed and responses to discovery
were received. The penalty for improper reduction was not in error.
LUBA argues the trial court should not have assessed a penalty for the failure
to reinstate benefits upon receipt of Dr. Hodges’ report showing Mr. Olivier was
unable to work. After a review of the record, we find there was evidence
contradicting the reports of Dr. Felton and Dr. Hodges that Mr. Olivier was unable
to work. Dr. Cobb released him to light duty work on December 1, 2003. Dr. Ray
Williams also released Mr. Olivier to light duty work on February 20, 2004.
Therefore, we reverse the trial court’s award of a $2,000.00 penalty against LUBA
for the failure to reinstate benefits.
We also find no abuse of the WCJ’s discretion in awarding Mr. Olivier
-7- $19,328.00 in attorney fees. This award was based on documented hours worked and
expenses incurred by Mr. Olivier’s counsel.
II. Mr. Olivier’s Appeal.
Mr. Olivier argues the WCJ erred in finding he was only entitled to benefits at
the rate of $114.00 per week. Specifically, he argues the WCJ erred in calculating his
average weekly wage. We agree.
The record indicated that before becoming self-employed, Mr. Olivier worked
for Jim Olivier Home Improvement for a number of years prior to his injury. For
over two years before the injury, Mr. Olivier was earning a salary of $3,300.00 per
month. On May 25, 2003, Mr. Olivier left Jim Olivier Home Improvement. The
accident occurred on June 23, 2003. Thus, Mr. Olivier was only self-employed for
four weeks.
The WCJ indicated that the proper manner of determining Mr. Olivier’s wages
was under La.R.S. 23:1021(10)(d). However, as Mr. Olivier notes, the WCJ used the
after tax earnings to compute the average weekly age, apparently concluding that Mr.
Olivier was an independent contractor while he worked for Jim Olivier Home
Improvement.1 The WCJ erred. Mr. Olivier’s gross earnings should have been used
for the time he was employed by Jim Olivier Home Improvement because he was
presumed to be an employee under La.R.S. 23:1044, which provides, in part:
A person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.
Although the presumption that Mr. Olivier was an employee of Jim Olivier Home
Improvement is rebuttable, there was no evidence in the record to overcome this
1 The jurisprudence has recognized that an employee’s expenses are deducted from his gross earnings if the employee supplies his own equipment or helpers. Young v. Gulf Coast Carpets, 04- 854 (La.App. 3 Cir. 11/17/04), 888 So.2d 1074. There was no indication in the record that this was the case while Mr. Olivier worked for Jim Olivier Home Improvement.
-8- presumption. The employer bears the burden of proof in overcoming this
presumption and showing that a worker was not an employee for workers’
compensation purposes. Estate of Harris v. Ledet, 95-485 (La.App. 3 Cir. 11/2/95),
664 So.2d 561, writ denied, 95-2894 (La. 2/2/96), 666 So.2d 1102.
At the time of the accident, La.R.S. 23:1021(10)(d) read as follows:
Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.
During the twenty-six week period prior to the accident, the record establishes Mr.
Olivier earned $16,500.00 from Jim Olivier Home Improvement ($3,300.00 per
month for five months, or twenty-two weeks). He was not able to establish any
income after becoming self-employed; therefore, we will use zero income for the four
weeks prior to the injury. Therefore, Mr. Olivier had $16,500.00 in gross earnings
in the twenty-six week period prior to the accident. Although Mr. Olivier was unable
to specify the exact number of days he worked, he did testify he “mostly” had
weekends off. Therefore we will assume he worked five days per week. Using this
figure, Mr. Olivier’s average weekly wage for the twenty-six week period is $634.62.
His weekly benefit rate is then determined by calculating sixty-six and two-thirds
percent of the average weekly wage, or $634.62. La.R.S. 23:1221(1)(a). Therefore,
Mr. Olivier’s weekly compensation rate was $423.08 per week, not the $114.00 as
determined by the WCJ.
Mr. Olivier also argues the WCJ erred in failing to exclude the defenses of
-9- LUBA due to the conflict of interest of defense counsel. Counsel for Mr. Olivier
noted his client was self employed, and filed his claim against Olivier Builders, his
own company, and its insurer, LUBA. Because counsel for LUBA answered the
claim on behalf of both Olivier Builders and LUBA, it is argued he was
impermissibly representing both Mr. Olivier and LUBA.
The WCJ noted that because LUBA was sued as Olivier Builder’s insurance
company, it was forced to respond in a defensive mode. LUBA then determined that
Mr. Olivier had committed fraud in this action, and it pursued the matter in that light.
As the WCJ noted, Mr. Olivier could not “seriously look to LUBA to defend him
against allegations that he violated the provisions of the 1208 fraud statute . . ., [and]
[i]t would be exceedingly awkward, if not unrealistic, for LUBA to provide an
attorney to assist Mr. Olivier in defending himself against the very charges that
LUBA is levying against him.” Thus, Mr. Olivier needed to secure his own attorney,
which he did. Mr. Olivier can hardly argue he was prejudiced, as his attorney
vigilantly represented him and was successful on the vast majority of issues presented
below, including obtaining a significant award of attorney fees. Although the
situation that occurred in the present case was both unique and awkward, we agree
with the WCJ that it did “not rise, or sink depending on your point of view, to the
level of malpractice.” Therefore, the WCJ did not err in failing to exclude the
defenses asserted by LUBA.
Mr. Olivier also argues the WCJ erred in failing to award legal interest on all
amounts due. Louisiana Revised Statutes 23:1201.3(A) provides that “[a]ny
compensation awarded . . . shall bear judicial interest from the date compensation
was due[;]” therefore, imposition of interest is required on compensation. See
Cormier v. Louisiana Southwest Scrap & Salvage, 04-321 (La.App. 3 Cir. 12/1/04),
-10- 888 So.2d 1117; Mitchell v. Brown Builders, Inc., 35,022 (La.App. 2 Cir. 8/22/01),
793 So.2d 508, writ denied, 01-2649 (La. 12/14/01), 804 So.2d 636. Therefore, we
amend the judgment to include legal interest beginning on the date compensation was
due.
Mr. Olivier also requests legal interest be included on the award of penalties
and attorney fees. He does note that the Louisiana Supreme Court, in Smith v.
Quarles Drilling Co., 04-179 (La. 10/29/04), 885 So.2d 562, held that La.R.S.
23:1201.3 does not apply to penalties and attorney fees, only to benefits. However,
the court in Quarles noted that a party is entitled to legal interest on an award of
penalties and attorney fees if the party prayed for interest in his pleadings. Mr.
Olivier prayed for interest in the court below and before this court. Therefore, we
award him interest on the awards of penalties and attorney fees.
Lastly, Mr. Olivier seeks an award of additional attorney fees for work
performed on appeal. Accordingly, we award an additional $3,000.00 in attorney fees
for the work necessitated by LUBA’s appeal.
DECREE
For the foregoing reasons, the judgment of the Office of Workers’
Compensation awarding weekly indemnity benefits to Viel Olivier in the amount of
$114.00 is amended to award him $423.08 per week in accordance with La.R.S.
23:1021(10)(d). The judgment is also amended to include legal interest beginning on
the date compensation was due and to include legal interest on the awards of penalties
and attorney fees beginning on the date of judgment. The portion of the judgment
awarding a $2,000.00 penalty against LUBA for the failure to reinstate benefits is
reversed. Additionally, judgment is rendered in favor of Viel Olivier in the amount
of $3,000.00 in additional attorney fees for the work necessitated by the present
-11- appeal. In all other respects, the judgment of the Office of Workers’ Compensation
is affirmed.
AFFIRMED IN PART, REVERSED IN PART; AMENDED IN PART; AND RENDERED.
-12-