Thibodaux v. Grand Isle Shipyard, Inc.

Citations: 207 So. 3d 459; 2016 La.App. 4 Cir. 0583; 2016 La. App. LEXIS 2340Docket: NO. 2016-CA-0583

Court: Louisiana Court of Appeal; December 20, 2016; Louisiana; State Appellate Court

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Judge Edwin A. Lombard affirmed the March 2, 2016 judgment from the Office of Worker’s Compensation (OWC), which awarded David Thibodaux, Jr. supplemental earnings benefits, medical payments, penalties, attorneys’ fees, and costs. The case arose from an incident on June 24, 2013, while Thibodaux was employed as a truck driver by Grand Isle Shipyard, Inc. (GIS). During a work-related task, his 18-wheeler became stuck in a sand-filled pothole, causing the front axle to break and resulting in Thibodaux being jostled in the cabin. After informing his supervisor, Andrew Dufrene, about the incident and his inoperable truck, Thibodaux requested medical attention for pain in his neck, left shoulder, and left ear but alleged no action was taken by Dufrene.

Thibodaux's last day of work was July 17, 2013, and he was terminated eight days later, on July 25, 2013. He sought medical treatment on July 18, 2013, from Dr. Gary Birdsall, who diagnosed him with neck pain and prescribed medication. Following his termination, Thibodaux was unable to afford continued medical care. On August 1, 2013, he consulted Dr. Brent Tatford for neck pain, during which he reported symptoms beginning after a previous car accident and experiencing pain radiating down his arm. Dr. Tatford conducted a physical examination, ordered an x-ray, and prescribed additional pain medications. The x-ray revealed degenerative joint disease at specific cervical levels, but subsequent MRI and EMG tests were not performed. The Appellants disputed Thibodaux's claims regarding his injury and the lack of assistance he received from GIS.

On February 7, 2014, Mr. Thibodaux's counsel informed adjuster Edward Levert of his need for medical treatment and indemnity benefits. Levert responded, stating that the correspondence lacked essential information about Mr. Thibodaux's employer, injury date, and medical details necessary for evaluating the claim. On February 26, 2014, Mr. Thibodaux's counsel provided the employer's name and accident location, along with a Choice of Physician Form for orthopedic treatment. Levert requested the accident date and a recorded statement to proceed. Following this exchange, no further communication occurred until Mr. Thibodaux filed a Disputed Claim for Compensation on June 16, 2014. By October 2014, he began treatment with Dr. Norman Ott at Louisiana Primary Care Consultants, who diagnosed him with a cervical strain and shoulder issues, placing him on light duty.

At the trial on February 16, 2016, Mr. Thibodaux testified and submitted medical records from LPCC. His testimony was supported by family members, while the Appellants presented testimonies and depositions from their own medical experts. The Office of Workers' Compensation (OWC) ruled in favor of Mr. Thibodaux, determining he proved his injury and disability linked to a June 24, 2013 workplace accident. The OWC awarded him supplemental earnings benefits for zero earning capacity from July 26, 2013, to February 16, 2016, authorized his treatment, and mandated the Appellants pay his medical bills and future treatment costs. The OWC also found the Appellants did not reasonably contest Mr. Thibodaux's claim, imposing penalties and attorney fees totaling $8,000, along with all costs. The Appellants subsequently appealed, raising five specific assignments of error related to the OWC's findings on the injury, earnings benefits, treatment authorization, contestation of the claim, and the penalties awarded.

Appellate courts in workers’ compensation cases utilize the manifest error-clearly wrong standard, focusing on whether the fact finder's conclusions are reasonable rather than determining their correctness. If a factfinder's conclusions are reasonable based on the entire record, appellate courts will not reverse the findings, even if they would have evaluated the evidence differently. However, legal errors affecting the fact-finding process prompt a de novo review. 

In this case, the Appellants argue that Mr. Thibodaux did not meet his burden of proving that his injuries were work-related under La. Rev. Stat. 23:1031(A). They contend that he relied on self-serving testimony while contradicting his physicians' deposition statements. For an injured employee's testimony to suffice alone, it must not be discredited by other evidence and must be corroborated by the circumstances post-incident. The Appellants assert that Mr. Thibodaux's testimony is insufficient due to the considerable evidence they presented against his claims, including a lack of corroborating evidence. They claim he failed to provide phone records of calls to his supervisor regarding his injuries and could not produce coworkers to support his assertions.

Moreover, the Appellants reference medical testimony from Dr. Birdsall and Dr. Tatford, who indicated that Mr. Thibodaux did not report an accident and suggested his injuries stemmed from preexisting conditions. Dr. Birdsall noted a previous treatment for muscle spasms and did not relate Mr. Thibodaux’s July 2013 issues to a work accident. Dr. Tatford's records indicated that Mr. Thibodaux had neck pain from an automobile accident the prior year, further contradicting his work-related injury claim.

Dr. Tatford testified that Mr. Thibodaux reported left arm pain beginning three months before a work incident, which led to a diagnosis of degenerative joint disease. He was released from treatment with a return to work certificate, and an EMG requested by Dr. Tatford returned negative results. Appellants argued that Mr. Thibodaux's claims of notifying GIS and his physicians about a work-related injury lacked support due to insufficient corroborating testimony. The Office of Workers' Compensation (OWC) faced conflicting testimonies regarding the June 24, 2013 accident, where typically, credibility assessments should not be disturbed on review. Mr. Thibodaux claimed his neck and arm pain worsened post-accident, with family members set to corroborate his account. His medical records indicated treatment for pain complaints but did not confirm that he reported injuries as work-related. However, he had a prior whiplash diagnosis from a 2012 car accident while employed with GIS. The OWC could reasonably conclude that the June 2013 accident aggravated his neck pain, as he had no significant pain complaints before that incident. Mr. Thibodaux's LPCC medical records noted work-related injury reports, and he was diagnosed with cervical strain and left shoulder issues, leading to light duty recommendations. Testimony from Mr. Dufrene suggested Mr. Thibodaux's work attendance was poor and that he did not report his accidents; however, Dufrene acknowledged the possibility of injury from the 18-wheeler's movement. The OWC ultimately determined that Mr. Thibodaux met his burden of proof for a work-related injury under La. Rev. Stat. 23:1031(A), finding no manifest error in this conclusion.

The OWC appropriately relied on Mr. Thibodaux’s testimony and medical records due to a lack of evidence undermining his account of the incident, which involved a broken axle and his repeated medical treatment attempts. The Appellants contested his supplemental earnings benefits award, arguing that Mr. Thibodaux failed to provide adequate claim information following his work-related injury and did not submit necessary documentation for processing. They noted that their first awareness of his claims was in February 2014, and the information received lacked critical details such as the date and nature of the injury or employer identification. The Appellants claimed they could not acquire medical records until discovery and that Mr. Thibodaux did not submit medical bills or Form 1010s for approval. They pointed out a cessation of communication four months before his Disputed Claim for Compensation was filed. Furthermore, they argued the OWC's finding of zero earning capacity for Mr. Thibodaux from July 25, 2013, to February 16, 2016, was unjustified, as none of his physicians had fully restricted him from working. The Appellants asserted Mr. Thibodaux did not meet the burden of proof to demonstrate he was unable to earn at least 90% of his pre-injury wages and failed to report his loss of supplemental earnings timely, as required by Louisiana law. They contended that Mr. Thibodaux did not prove he could not perform light duty work due to significant pain and that he had not sought or applied for employment in the past three years, despite being cleared for light duty by Dr. Ott, who imposed specific lifting and driving restrictions.

The Appellants argue that the award of zero earning capacity for Mr. Thibodaux should be reversed. In workers’ compensation cases, claimants must prove, by a preponderance of the evidence, that their injuries prevent them from earning at least 90% of their average pre-injury wage. The determination of whether a claimant's pain is sufficiently disabling to warrant supplemental earnings benefits is a factual question, requiring consideration of the specific circumstances of each case, with a preference for broad coverage under workers' compensation law.

The Appellants' reliance on the testimony of Doctors Birdsall and Tatford is deemed misplaced, as their treatment of Mr. Thibodaux was limited. In contrast, Dr. Ott, who treated him for a longer period post-accident, documented serious pain from neck, arm, and back injuries. Mr. Thibodaux's limited education and long-term occupation as a truck driver were significant, as he was unable to continue working due to restrictions against driving imposed by Dr. Ott, and he had been terminated by GIS while seeking treatment.

Dr. Tatford's light duty work release form was questioned since he did not recall completing it, and Mr. Thibodaux had already been fired when it was issued. Considering Mr. Thibodaux's ongoing pain, medication affecting his ability to drive, and the restrictions placed on him, the OWC's finding that he met the burden of proof for supplemental earnings benefits was upheld.

The Appellants' claim that Mr. Thibodaux should be barred from receiving benefits due to delayed reporting of his claim was also rejected. The court noted that the 30-day reporting period under La. Rev. Stat. 23:1221(3)(f) was not intended to be preemptive, allowing claims to be asserted beyond that time if the employer is aware of the claimant's unemployment. GIS was aware of Mr. Thibodaux's unemployment due to his termination, and the OWC found his testimony credible regarding timely reporting of his injuries. Thus, this assignment of error was found to be without merit.

Mr. Thibodaux's claim for penalties and attorney’s fees is contested by the Appellants on the grounds that he failed to comply with the claims process by not providing necessary medical documentation to Mr. Levert, the insurance adjuster. The Appellants assert that they reasonably controverted Mr. Thibodaux's claim under La. Rev. Stat. 23:1201, arguing that nonpayment was due to his inaction, including his refusal to give a recorded statement. They maintain that they cannot be penalized for circumstances beyond their control. In contrast, Mr. Thibodaux argues that his medical benefits were unreasonably denied, supported by evidence linking his workplace accident to his disabling condition. He cites La. Rev. Stat. 23:1201F(2), which states that penalties and fees may only be avoided if the claim is reasonably controverted or if nonpayment is due to uncontrollable conditions. Mr. Thibodaux contends that he proved his injuries occurred during the course of employment and that the Appellants failed to provide credible evidence to refute his claims. He questions the credibility of Mr. Dufrene’s testimony, which corroborated his account of the incident. The standard for determining whether a claim is reasonably controverted involves the employer's possession of sufficient evidence to counter the claimant's assertions, and any failure to reasonably controvert is a factual question subject to the manifest error standard of review. The Appellants argue that they should not be held liable for penalties when a legitimate factual dispute is present.

The Louisiana Workers’ Compensation Act mandates a liberal interpretation for benefits, while penal statutes require strict interpretation. To assess whether a claimant's rights have been reasonably contested, courts evaluate if an employer or insurer engaged in a non-frivolous dispute or had sufficient factual/medical grounds to counter the claimant's information during the refusal to pay benefits. An employer's failure to authorize necessary medical treatment for an eligible employee is treated as a failure to provide benefits, invoking penalty provisions of La. R.S. 23:1201. In Mr. Thibodaux's case, he claims benefits based on his injury report, which Mr. Dufrene disputed. The Appellants argue that Thibodaux did not follow up sufficiently in the claims process. However, Thibodaux challenged Dufrene's credibility, a position supported by the OWC. Evidence showed GIS and Dufrene had a pattern of not filing incident reports, and Thibodaux claimed he received no guidance on filing for workers' compensation. An Employer Report of Injury from February 27, 2014, confirmed Thibodaux's injury on June 24, 2013, while driving a truck, which resulted in neck and arm pain. The OWC reasonably concluded that Thibodaux reported the incident and sought medical treatment, which GIS did not act upon, especially after terminating his employment. The OWC found that the Appellants failed to meet the burden of proving a reasonable contest of Thibodaux’s claim, suggesting engagement in a frivolous dispute or lacking sufficient information to counter his claims. Consequently, the OWC’s judgment was affirmed, and Thibodaux's untimely answer to the appeal was not considered.

Mr. Thibodaux was employed by GIS starting in February 2011. In 2012, while performing his work duties, he was injured in a rear-end collision. Despite the existence of a police report, GIS did not file a first report of injury, although Mr. Thibodaux reported the incident to Mr. Dufrene. After expressing complaints of neck pain and seeking medical treatment, he was referred to a company doctor who diagnosed him with whiplash. Mr. Thibodaux could not recall the accident's date, which he did not provide to Mr. Levert.

Louisiana Revised Statute 23:1031 outlines that an employee injured in the course of employment is entitled to compensation from their employer. If multiple employers are involved, they share liability based on their respective wage contributions to the employee. The statute also states that payment by employers does not preclude recovery from other joint employers.

Further, Louisiana Revised Statute 23:1221(c)(ii) establishes that an employee can be deemed incapable of performing available work if they can prove, by clear and convincing evidence, that substantial pain prevents them from doing so. This standard of proof is more stringent than a mere preponderance of the evidence.

Additionally, Statute 23:1221(3)(f) mandates that employees report any loss of supplemental earnings benefits to their insurer within thirty days of the loss, and the director is responsible for establishing rules regarding this reporting. Finally, Statute 23:1201(F) includes provisions related to the administration of these benefits.

Failure to pay compensation or medical benefits as required, or failure to consent to an employee's choice of treating physician, can lead to penalties. These penalties may be up to twelve percent of any unpaid amounts or fifty dollars per day for each day of nonpayment or withheld consent, capped at two thousand dollars total. The maximum penalty at a merits hearing is eight thousand dollars, regardless of the number of infractions. Penalties and attorney fees are assessed against either the employer or insurer, based on fault, and cannot be transferred to the insurer if deemed payable by the employer. Exceptions to this provision exist if the claim is reasonably contested or if nonpayment arises from circumstances beyond the employer or insurer's control. Medical benefits must be paid within sixty days of receiving written notice, unless electronic billing is used. Additionally, under La. Code Civ. Proc. art. 2133A, an appellee must respond to an appeal if seeking judgment modification or damages, filing an answer within fifteen days of the record lodging or return day, which functions as a cross-appeal regarding any complaints against the judgment.