Marshall v. Courvelle Toyota

Citations: 175 So. 3d 1069; 15 La.App. 3 Cir. 218; 2015 La. App. LEXIS 1965; 2015 WL 5833938Docket: No. 15-218

Court: Louisiana Court of Appeal; October 7, 2015; Louisiana; State Appellate Court

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Herbert Marshall appeals the dismissal of his workers' compensation claim against Courvelle Toyota, his employer. The court reverses the workers' compensation judge's (WCJ) decision, ruling in favor of Marshall and awarding him benefits, penalties, and attorney fees. 

On December 27, 2013, Marshall, employed by Courvelle Toyota in Opelousas, Louisiana, was instructed by his supervisor, Troy Thompson, to use a lift-gate truck to pick up a heavy transmission. Instead, he used a standard van and enlisted help from Ronald Robin, Jr. to load the transmission, during which he felt a 'pop' in his back. He did not report this injury to anyone on that day, nor did he show signs of pain. Marshall took sick leave the following days and reported the injury to Thompson on January 2, 2014. An accident report was generated, and Thompson sent him to the emergency room, where he received treatment and was advised not to return to work for the week.

Marshall returned to work on January 6, 2014, but filed a disputed claim for benefits on January 31, 2014, seeking wage benefits, medical treatment, penalties, and attorney fees. Courvelle Toyota arranged for him to see orthopedic surgeon Dr. Gregory Gidman, but Marshall only attended one appointment. He later sought treatment from pain management physician Dr. Joseph Bozzelle, who treated him several times after receiving limited approval from the workers' compensation administrator, Risk Management Services LLC.

Dr. Bozzelle prepared written reports of his examinations of Mr. Marshall on the same day they were conducted, which were subsequently faxed to Risk Management shortly thereafter. The third report noted Dr. Bozzelle's intention to see Mr. Marshall in a month and advised against the patient returning to work until further treatment. Although Mr. Marshall did not follow up with Dr. Bozzelle, he sought alternative medical treatment, including a visit to the Opelousas General Emergency Room on June 8, 2014, and requested authorization from the Office of Workers’ Compensation to be treated by Dr. John B. Sledge, an orthopedic surgeon. Mr. Marshall also testified about seeking evaluation and treatment through the Veterans Administration.

The case went to trial on September 3, 2014, where evidence included testimony from several individuals and relevant medical records. After the evidentiary phase, the Workers' Compensation Judge (WCJ) took the matter under advisement and later rejected Mr. Marshall's claims in an oral judgment on October 29, 2014. A formal judgment was executed on November 10, 2014, prompting Mr. Marshall to appeal, asserting three errors: (1) the trial court was wrong in concluding he did not prove an accident occurred in the course of his employment, (2) the trial court improperly relied on preliminary urine drug tests despite confirmatory tests being negative, and (3) the trial court's findings of fact were flawed, warranting de novo review rather than the manifest error standard.

The standard for appellate review in workers’ compensation cases is established as the manifest error or clearly wrong standard, which requires an appellate court to determine if the trial court's factual findings have a reasonable basis in the record and are not manifestly erroneous. The appellate court must respect the trial court's credibility assessments of witnesses, as the fact finder is uniquely positioned to gauge demeanor and tone.

To obtain workers’ compensation benefits, an employee must demonstrate, by a preponderance of the evidence, that they sustained a personal injury due to an accident occurring within the scope of their employment, as per La.R.S. 23:1031(A). According to the Louisiana Supreme Court in Bruno v. Harbert International Inc., a worker's testimony may suffice to meet this burden if two conditions are met: (1) no evidence undermines the worker's account, and (2) the worker's testimony is supported by circumstances that follow the incident. Corroborating evidence may come from co-workers, spouses, friends, or medical records. The trial court must accept uncontradicted testimony as credible unless there are reasons to doubt its reliability. The credibility assessments and burden of proof determinations made by the trial court are factual findings that are not to be overturned on appeal unless they are clearly erroneous or manifestly wrong. This standard of review also applies even when decisions are based on written evidence. The principles articulated in Rosell v. ESCO and West highlight that appellate courts should defer to trial court findings unless there are significant inconsistencies or contradictions in the evidence that would lead a reasonable factfinder to reject the witness’s account. Additionally, appellate courts are not obligated to uphold a trial court’s dismissal of uncontradicted testimony if there is no reasonable basis for such a rejection or if legal principles have been overlooked.

Mr. Marshall reported that he was instructed by Mr. Thompson to use a lift-gate truck but found it malfunctioning before leaving the dealership, leading him to opt for a van instead. Mr. Thompson admitted the lift-gate could occasionally experience a delay of up to three minutes before functioning properly but claimed it eventually worked well. In contrast, Mr. Alleman testified that he had never encountered issues with the lift-gate. Mr. Thompson learned of Mr. Marshall's van usage only upon his return.

Medical records from Dr. Gidman, dated February 3, 2014, indicate that Mr. Marshall sustained a back injury on December 27, 2013, while lifting a transmission, describing a 'pop' in his back. Following the incident, he experienced flu symptoms, and after recovery, his lower extremity symptoms intensified. Dr. Gidman's assessment noted a lumbar strain with ongoing low back pain, normal neurological examination, and radicular symptoms. He provided a treatment plan including rest, pain management with Tylenol and Tramadol, and recommended a follow-up visit.

On March 20, 2014, Dr. Bozzelle recorded Mr. Marshall's complaints of mid back pain, lower back pain, and bilateral leg symptoms, linking these to the same incident of lifting the transmission while he was ill with the flu. Mr. Marshall initially attributed his pain to flu symptoms, but the discomfort persisted post-recovery, leading to ongoing pain and weakness in his lower extremities.

Mr. Marshall exhibited significant tenderness and muscular spasms in both the thoracic and lumbar spine, with pain during flexion, extension, and facet loading. He presented with bilateral sacroiliac joint tenderness and notable sensory deficits in the lower extremities, suggestive of lumbar radiculopathy. Dr. Bozzelle diagnosed Mr. Marshall with a work-related injury involving lumbar pain, suspected herniated disc, thoracic pain, and bilateral sacroiliac joint pain. A conservative treatment plan was recommended, including imaging studies, passive therapy, and a follow-up in one month. Dr. Bozzelle noted limitations on further treatment due to Risk Management's "evaluation only" authorization. 

In a follow-up visit on April 23, 2014, Mr. Marshall was subject to a narcotics agreement that required him to refrain from illegal drug use and submit to random drug screenings. Testing revealed cocaine in both a urine sample from March and an in-house sample from April 23, indicating a breach of the narcotics agreement.

The independent laboratory's testing of the urine sample from April 23 indicated that the in-house test incorrectly identified cocaine, confirming the sample was cocaine-free. Dr. Bozzelle examined Mr. Marshall and noted no changes in his physical condition or complaints since the previous month. He recommended an MRI of the lumbar spine and various x-rays, alongside passive therapy twice a week for six weeks, and urine and blood tests. Requests for these treatments were sent to Risk Management on April 29 and May 5, 2014. Risk Management approved the x-rays but denied the therapy and tests, citing non-compliance with the medical treatment schedule, and did not respond regarding the MRI request.

Dr. Bozzelle's third examination on May 29, 2014, again showed that in-house testing falsely indicated cocaine presence in Mr. Marshall's urine. In his final report, he detailed Mr. Marshall's ongoing pain from a work-related injury, characterized as sharp and intermittent, with a severity rating of 7/10. Mr. Marshall utilized ice and heat therapy and had been taking oral lidocaine for unrelated tooth pain. X-rays showed no significant abnormalities, but Dr. Bozzelle noted the possibility of sacroiliac joint pain despite the lack of fractures.

The examination revealed tenderness, spasms, and limited mobility in the thoracic spine and lumbar area, with specific sensory deficits and weakness in the lower extremities. The authorized x-rays were deemed "essentially unremarkable," but objective weakness persisted. Dr. Bozzelle reiterated the necessity of a lumbar MRI and passive therapy for effective treatment, stating that Mr. Marshall should not return to work until further treatment was received.

Mr. Marshall visited the emergency room at Opelousas General Hospital on June 8, 2014, for back spasms and a rash, where he was evaluated by nurse practitioner Geronna Leonards. He was discharged after about two hours with a diagnosis of a back strain and advised to follow up with his primary physician. On June 11, 2014, he filed a request with the Office of Workers’ Compensation to treat with Dr. Sledge, which was denied. Subsequently, on July 17, 2014, Dr. Bozzelle requested authorization for various treatments, including passive therapy and a lumbar MRI, but these requests were also denied by Risk Management. Mr. Marshall later sought treatment through the Veterans Administration, although no records of this treatment are present in the documentation.

Prior to the June visit, Mr. Marshall had gone to the emergency room on January 2, 2014, at his employer's request for treatment and a drug test, where he provided a urine sample. He was advised by Dr. Gidman for further testing but did not return due to his perception that Dr. Gidman was aligned with Courvelle Toyota, prompting him to see Dr. Bozzelle for an independent evaluation. Although Courvelle Toyota initially covered Dr. Bozzelle’s fees, they denied payment for necessary testing, leading to Mr. Marshall's return to the emergency room in June.

At trial, Mr. Marshall testified about ongoing low back pain and tingling in his legs, indicating he used a cane for relief, despite no medical recommendation for it. He also shared his work history, stating he was limited to light duty at Courvelle Toyota until January 23, 2014, and thereafter worked for Agape Total Care until February 25, 2014, caring for a terminally ill patient. Increasing back pain eventually forced him to cease all work activities. Regarding a urine test administered by Dr. Bozzelle, Mr. Marshall denied any drug use, attributing a positive cocaine screen to lidocaine he was taking for dental issues, and confirmed his awareness of Courvelle Toyota's drug-testing policy following work-related accidents.

Connie Freese initially handled Mr. Marshall's claim for Risk Management, later succeeded by Shannon Melerine in mid-2014. While Ms. Freese did not testify, redacted notes of her findings were submitted as evidence by Courvelle Toyota. Ms. Melerine, testifying based on an unredacted version of Freese’s notes, indicated that medical treatment was authorized during the claim's initial investigation and that the decision to deny the claim was influenced by Mr. Marshall’s failure to utilize the lift-gate truck and his refusal to provide a second urine sample. Notably, the drug tests conducted by Dr. Bozzelle did not factor into the denial.

The Workers' Compensation Judge (WCJ) issued an oral judgment on October 29, 2014, which was found to contain manifest error, particularly regarding Mr. Marshall's burden of proof for a compensable accident. The record confirmed Mr. Marshall was performing his job duties on December 27, 2013, when he lifted a heavy transmission, despite not reporting an injury immediately due to an initial misjudgment of its severity. According to precedent, delays in reporting can be excused if the claimant does not recognize the injury's seriousness. Mr. Marshall reported his injury three business days later, after recovering from the flu and realizing the back discomfort was not related to that illness.

Although Courvelle Toyota highlighted Mr. Thompson's testimony about Mr. Marshall's normal work activities until January 23, 2014, Freese’s notes from January 27 indicated that co-workers were aware of his back pain. All medical evidence consistently documented Mr. Marshall's account of the injury occurring during the lifting incident, and medical assessments confirmed a diagnosis of back strain or sprain. The legal principle states that if a claimant was healthy prior to an accident and shows symptoms thereafter, a presumption of causation arises, provided medical evidence supports a causal link between the accident and the injury.

In Lucas v. Ins. Co. of N. Am., the denial of benefits to Mr. Marshall by Risk Management was based on two main reasons: his failure to use a lift-gate truck and his refusal to provide a second urine sample on January 2, 2014. The court determined that the failure to use the lift-gate truck was not a valid defense against his workers' compensation claim, referencing a 2001 amendment to La.R.S. 23:1081 that eliminated such defenses. Although Courvelle Toyota's counsel argued that Mr. Marshall's choice of vehicle affected his credibility, the court found insufficient evidence to support this claim, noting that Mr. Thompson's testimony, which acknowledged potential delays in the lift-gate's operation, actually corroborated Mr. Marshall's position. 

Regarding the urine sample, the court highlighted that Mr. Marshall's assertion of providing a sample was backed by emergency room records, which did not indicate a need for another sample or specify drug testing. The Workers' Compensation Judge (WCJ) emphasized Dr. Gidman’s diagnosis of lumbar strain but overlooked the necessity of a follow-up evaluation. The WCJ also focused on a positive cocaine test from Mr. Marshall's first urine sample while ignoring that subsequent tests were negative. Mr. Marshall denied cocaine use, attributing the positive result to oral lidocaine for tooth pain, a claim Dr. Bozzelle deemed worthy of further investigation. Finally, the WCJ's reference to Mr. Marshall as 'doctor shopping' was deemed unfounded, lacking support in the medical records reviewed.

Mr. Marshall was diagnosed with a back strain by a nurse practitioner upon his release from Opelousas General. Despite Dr. Bozzelle's objective findings and Mr. Marshall's complaints of worsening back pain, Courvelle Toyota denied all medical treatment requests. Consequently, Mr. Marshall sought treatment from Dr. Sledge three days later. The Workers' Compensation Judge (WCJ) erroneously used Mr. Marshall's actions on January 3, 2014—taking pictures and a video of the malfunctioning lift-gate—to discredit his testimony. Mr. Marshall filmed the lift-gate’s failure to support his claim, which was acknowledged by Courvelle Toyota’s counsel, although the video was not presented at trial. 

The WCJ also criticized Mr. Marshall for using a cane without doctor’s orders, despite Courvelle Toyota's refusal to authorize treatment, including a requested lumbar MRI, leaving the extent of his injury unclear. Mr. Marshall explained that the cane alleviated pressure on his back, and its usage was, ironically, a result of Courvelle Toyota's inaction regarding his medical care. After a thorough review, it was determined that the WCJ was manifestly erroneous in finding that Mr. Marshall did not prove he suffered a work-related accident or injury. The evidence established that he sustained a lower-back injury on December 27, 2013, during his employment with Courvelle Toyota. Consequently, Mr. Marshall is entitled to supplemental earnings benefits of $897.35 per month from January 24, 2014, to February 25, 2014, and to weekly indemnity benefits of $248.05 from February 26, 2014, onward, as stipulated during the trial.

The record shows that Courvelle Toyota and Risk Management failed to reasonably contest Mr. Marshall’s workers’ compensation claim, aside from a single medical examination by Dr. Gidman. Employers are required to adequately investigate claims and provide a clear, objective rationale for denying benefits. Testimony indicated that Risk Management initially decided to deny benefits while only authorizing medical treatment. However, the specifics of the investigation conducted by Courvelle Toyota’s legal counsel were not documented. Ms. Freese ultimately denied Mr. Marshall’s claim based solely on his alleged noncompliance with instructions regarding the lift-gate truck and his refusal to provide a second urine sample, both of which lacked legal and factual support. 

Additionally, there was no evidence that Courvelle Toyota provided medical treatment during the investigation. Risk Management only authorized an examination by Dr. Bozzelle, whose findings of objective medical issues were met with subsequent refusals for further treatment and testing. As a result of the unjustified denial of benefits, penalties of $2,000 were awarded for failing to pay indemnity benefits, authorize medical treatment, allow follow-up care, and for not consenting to Mr. Marshall’s choice of orthopedic surgeon. Attorney fees were awarded in the amounts of $11,385.17 and an additional $5,000 for work on appeal. The previous judgment against Mr. Marshall was reversed, confirming that he suffered a work-related accident and is entitled to supplemental earnings benefits of $897.35 per month for the period from January 24, 2014, to February 25, 2014.

Mr. Marshall is awarded temporary total disability benefits of $248.05 per week starting February 26, 2014, totaling $8,000.00 in penalties and $16,385.17 in attorney fees. All litigation costs are assessed to Courvelle Toyota. Mr. Robin, son of Ronald's Auto Repair Shop owner, is mentioned. Mr. Marshall's doctor appointment was initially set for January 15, 2014, but he was denied care due to missing authorization from Courvelle Toyota; however, evidence indicates this incident occurred on January 26, 2014. There is no evidence from the Veterans Administration regarding his treatment. Ms. Melerine, an employee of Risk Management, provided testimony. The emergency room record lists Dr. Hemy Kaufman as the attending physician, although he did not examine Mr. Marshall personally. Mr. Marshall worked part-time for Agape from early December 2013 until February 27, 2014. He believed that employer policy regarding treatment was standard across all companies, not just Courvelle Toyota. Courvelle Toyota's counsel questioned Ms. Melerine about redacted notes from Connie Freese, suggesting they contained only her thoughts. A January 27, 2014 note from Ms. Freese indicates that Mr. Marshall complained of back pain and requested to see a doctor, although this was his first request. Ms. Melerine stated that relevant reasons for his request were in the redacted notes. Counsel for Courvelle Toyota attempted to discredit Mr. Marshall's claims regarding a liftgate issue during cross-examination. The emergency room record noted Mr. Marshall could urinate without difficulty. Financial calculations show Mr. Marshall's average weekly wage and supplemental earnings benefits. Additionally, Courvelle Toyota's counsel rhetorically questioned Ms. Melerine regarding the investigation's handling.