Wilson v. Grosjean Contractors, Inc.

682 So. 2d 1264, 1996 La. App. LEXIS 2597, 1996 WL 628228
CourtLouisiana Court of Appeal
DecidedOctober 30, 1996
Docket28831-CA
StatusPublished
Cited by3 cases

This text of 682 So. 2d 1264 (Wilson v. Grosjean Contractors, 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
Wilson v. Grosjean Contractors, Inc., 682 So. 2d 1264, 1996 La. App. LEXIS 2597, 1996 WL 628228 (La. Ct. App. 1996).

Opinion

682 So.2d 1264 (1996)

Willie Gene WILSON, Plaintiff-Appellee,
v.
GROSJEAN CONTRACTORS, INC., Defendant-Appellant.

No. 28831-CA.

Court of Appeal of Louisiana, Second Circuit.

October 30, 1996.
Rehearing Denied December 5, 1996.

*1266 Eskridge E. Smith, Jr., Bossier City, for Defendant-Appellant.

Mills, Timmons & Flowers by William T. Allison, Shreveport, for Plaintiff-Appellee.

Before MARVIN, C.J., and WILLIAMS and CARAWAY, JJ.

MARVIN, Chief Judge.

In this workers' compensation action, Grosjean Contractors, Inc. appeals the WCHO's award of temporary total disability benefits to its employee, Willie G. Wilson, and assessment of penalties and attorney fees. Wilson has answered, seeking additional attorney fees for work done on appeal.

We amend to delete the WCHO's awards and to award only supplemental earnings benefits, and affirm, as amended.

FACTS

Employed by Grosjean as a roofer's helper at $8 per hour with an average weekly wage of $320, Wilson injured his back on Friday, March 4, 1994, on a job at Angola State Prison. He was in the back of a dump truck passing roofing material to co-workers on the roof during misting rain, when he slipped on a piece of insulation and fell in the truck bed.

Although Wilson felt like he "pulled something" and was in pain, he worked the remainder of the day before traveling with the work crew from Angola to Shreveport later that day. Although he rode with his job foreman, Mr. Thurmon, Wilson did not report the accident to him, as required by Grosjean procedures. Wilson testified that he told a co-worker about his accident, but did not inform Thurmon, who, Wilson said, was "difficult" to talk to.

Wilson awoke Saturday morning in pain, unable to stand straight. On Monday, March 7, 1994, Wilson reported his injury to his supervisor, Ron Cox, asking to see a doctor.

Cox sent Wilson to Dr. Tony Alleman, who saw Wilson March 7 and March 9, 1994, sending him back to limited work and instructing him to refrain from lifting any heavy objects. Wilson did not thereafter return to work for Grosjean.

Wilson's attorney referred him to Dr. Robert Holladay. On March 28, 1994, Dr. Holladay diagnosed Wilson with myoligamentous strain and sprain of the lumbar spine and advised him to remain off work activities that require bending, heavy lifting, climbing, crawling, stooping or twisting. Dr Holladay continued to treat Wilson through August of 1994. On August 10, 1994, Dr. Holladay released Wilson to return to light to medium level work with restrictions against repetitive bending and lifting objects over 35 pounds. After being released to work by Dr. Holladay, Wilson unsuccessfully sought employment at several places during August 1994.

Grosjean engaged Ken Brister, a vocational rehabilitation counselor, to assess Wilson for appropriate employment positions. Brister met with Wilson in September 1994 to learn Wilson's educational background, work history, hobbies and interests. Wilson told Brister that he had some limited experience cutting hair and wanted to become a barber.

*1267 Brister then located potential jobs for Wilson that were within the physical restrictions outlined by Dr. Holladay. Brister conducted four different labor market surveys, locating 14 possible jobs, the details of which Brister related to Wilson through his attorney.

In November 1994, Brister identified positions for Wilson as a security guard, service station attendant and janitor. In January 1995, Brister found other possible jobs for Wilson as a counter sales person, service adviser and customer service representative. Positions as a desk clerk, security officer, parts runner, oil change technician and cashier were identified in March 1995. Finally, in April 1995 Brister found possible employment for Wilson as a customer service representative, counter salesman and in telephone sales. Brister opined that Wilson was suited for each of these prospective positions based upon his education, work experience and the interview conducted in September of 1994.

Wilson received the several job lists, but did not formally make application for the positions. Wilson telephoned some of the prospective employers rather than making a written application. Wilson said he lacked transportation to personally seek the employment. Brister offered to assist Wilson in applying for these jobs, but Wilson neither requested any help nor reported that he found any of the offered positions unsuitable. Significantly, Wilson refused to inquire about jobs that would not pay him as much as he earned before his accident.

Because he expressed an interest in becoming a barber, Brister investigated retraining Wilson for that profession. Brister determined that barber training school would take 14 months. In addition, Brister found Wilson's beginning earnings, after expenses, would be less than he earned before his accident.

Grosjean paid Wilson temporary total disability benefits ("TTDs") from March 4, 1994, until October 1994, when it reduced the TTDs to supplemental earnings benefits ("SEBs"), based upon a post-injury earning capacity of $6 per hour in the potential jobs located by Brister. Wilson filed a claim with the OWC on December 14, 1994, asserting Grosjean failed to provide meaningful vocational rehabilitation and wrongfully reduced his benefits.

The WCHO held an administrative hearing on November 14, 1995. Finding that Grosjean wrongfully reduced the TTDs to SEBs, the WCHO awarded Wilson TTDs from October 1, 1994, until he completes a retraining program, approved as barber training school. The WCHO held that Grosjean failed to provide meaningful vocational rehabilitation services to Wilson and ordered Grosjean to provide a long-term retraining program, up to one year. Lastly, the WCHO found Grosjean arbitrary and capricious and assessed penalties of $50 per day for every day that Wilson's benefits were reduced, up to $2,000, and awarded attorney fees of $5,000. Grosjean appealed and Wilson answered.

DISCUSSION

Accident in the Course and Scope of Employment

Grosjean contends Wilson failed to prove that he suffered a disabling accident in the course and scope of his employment. Grosjean argues that Wilson repeatedly claimed he strained his back lifting roofing materials, then testified that he slipped and fell for the first time at the hearing. Grosjean emphasizes Wilson's failure to follow its requirements for reporting an accident and his failure to produce a co-worker at the hearing to corroborate his version of events.

Wilson's burden is to prove by a preponderance of the evidence that his disability is related to an on-the-job injury. Walton v. Normandy Village Homes Ass'n Inc., 475 So.2d 320 (La.1985); Stevens v. Wal-Mart Stores, Inc., 27,977 (La.App.2d Cir. 11/1/95), 663 So.2d 543. Proof is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Id. Wilson must show that his employment somehow caused or contributed to his disability, but he need not establish the exact cause. Id.

Wilson has consistently urged that he injured himself while working for Grosjean, handing up rolls of roofing material from the *1268 bed of a truck to coworkers on the roof. Although he did not immediately report the incident to a foreman that he thought was difficult to talk to, he informed his supervisor the very next work day and asked to see a doctor. We see no abuse of the WCHO's discretion in accepting Wilson's explanation.

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Bluebook (online)
682 So. 2d 1264, 1996 La. App. LEXIS 2597, 1996 WL 628228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-grosjean-contractors-inc-lactapp-1996.