Charles Poole, Jr. VS Guy Hopkins Construction
Annotate this Case
Download PDF
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 CA 0079 CHARLES POOLE JR VERSUS GUY HOPKINS CONSTRUCTION Judgment rendered November 2 2007 Appealed from the Office of Workers Compensation f Administration District 5 Louisiana Docket No 03 05933 Honorable Pamela A Moses Laramore Judge Presiding AlTORNEY FOR MICHAEL B MILLER PLAINTIFF APPELLEE CROWLEY LA CHARLES POOLE JR AlTORNEY FOR CHRISTOPHER R PHIUPP DEFENDANT APPELLANT LAFAYElTE LA GUY HOPKINS CONSTRUCTION BEFORE CARTER C J PETTIGREW AND WELCH JJ PElTIGREW l In this workers while in the course Construction workers and scope of his Company employment as laborer with a According to the record Guy Hopkins was injured Guy Hopkins Guy Hopkins paid compensation benefits to Mr Poole in the form of temporary total disability benefits at Poole compensation dispute the claimant Charles Poole Jr a rate of benefits s 416 were 00jweek from April 30 2003 through August 4 2003 when Mr terminated him prompting file to claim disputed a for compensation The matter which time the s to trial on November 28 on April 10 2003 2 indemnity rate 416 was Mr Poole 00jweek s exception of the University Medical Center bills following issues to the workers compensation judge whether Mr Poole sustained accident an or Mr Poole injury while in the Poole arbitrary and capricious Poole s workers termination giving 4 rise to Guy Hopkins was compensation benefits entitling whether the denial of choice of attorney fees 5 whether Mr supplemental earning benefits whether the initial was entitled to After from 6 was 2003 payment of indemnity benefits was Guy 1 disability suffered by Mr in its termination of Mr attorney fees for said arbitrary and capricious were to pay them makes them liable to whether Mr Poole April 11 3 and scope of his University Medical Center bills the penalties and attorney fees 629 06 medical expenses s course Poole to physician reasonably necessary and whether Guy Hopkins failure Mr Poole for was employed for consideration WO nature and extent of any whether was at parties presented the The employment with Guy Hopkins 2 the 3 Mr Poole 1 Poole continued to work for Mr Hopkins until April 29 2003 and 5 Guy Hopkins paid all of with the February 2 2006 weekly wage average 4 and 2005 parties entered into the following stipulations by Guy Hopkins Mr Poole proceeded was entitled to any 2003 and 7 through April 29 late and if whether Mr Poole so penalties and attorney fees listening to the testimony of the applicable law and documentary evidence witnesses in the record 2 at trial and reviewing the the WO issued its written ruling on February 10 2006 finding in favor of Mr Poole and against Guy Hopkins found that Mr Poole sustained with Guy Hopkins on Guy Hopkins accident in the was 416 course and scope of his employment entitled to temporary total disability 00jweek beginning May 6 2003 The WO further found April 10 2003 and that he benefits in the amount of that an The WO was required to pay all reasonable and necessary medical treatment including the bill from University Medical Center and the back surgery recommended by Cobb Dr The WO also ordered 2 000 00 and attorney fees in the amount of University Medical Center bills its Guy Hopkins as well as 3 000 00 for its failure to pay the attorney fees in the amount of arbitrary and capricious termination of judgment in accordance with these findings This penalties in the amount of to pay Mr Poole was s benefits 17 000 00 for August 3 2003 on signed by the WO on March 22 A 2006 appeal by Guy Hopkins followed On appeal Guy Hopkins assigned the following specifications of The trial court erred when it ruled that 1 Dr error Broussard was not and allowed him to switch his medical POOLE S choice of care to physician the fact that Dr Broussard had treated notwithstanding Dr John Cobb POOLE for five years The trial court erred when it ruled that POOLE had 2 an accident in and scope of his employment on April 10 2003 which error occurred due to the court s misinterpretation of the evidence and the use the of course an incorrect presumption The trial court erred when it ordered GUY HOPKINS to pay POOLE S University Medical Center bill when there was no reference to any work 3 related 4 injury The or treatment in the medical records trial court erred attorney s fees for failing to when it the pay awarded POOLE University penalties and Medical Center bill referenced above The trial court erred in 5 fees for August Mr Poole awarding POOLE 17 000 00 in attorney discontinuing POOLE S temporary total disability benefits s on 4 2003 answered the appeal seeking additional attorney fees for work appeal 3 on this OCCURRENCE OF AN ACCIDENT As burden of the threshold a requirement establishing by 1 Or 4 28 06 So 2d 1287 unforeseen actual a more than and Police simply a standard of review Or 9 28 01 standard wrong or McCray Roofing So 2d 551 556 record reviewed by the La App 269 in its i f the subject 2001 0486 sustained a violently with or or the court of entirety sitting Sistler as 907 So 2d 86 to the manifest Inc p 7 Inc findings La manifestly 1 Or it p 7 Factual 4 La clearly wrong was La right Banks one 7 1 97 reverse would have even or v 696 1112 views of the evidence erroneous Bolton 822 though weighed the 558 So 2d 1106 6 21 02 App 1 reasonable in light of the appeal may not permissible App are are clearly wrong p error reasonable 96 2840 the trier of fact are two injury Whether 88 error 2000 1694 was a Liberty Mut Ins Co v an Washington Parish v applying the manifest In fact finder s Consequently when there record Allman 1 Or 3 24 05 case are finder s choice between them cannot be the trier of fact Sheet Metal Works Thus differently After or proof and whether testimony is credible Delta Industries v 265 convinced that had it been Const unexpected appellate court must determine not whether the trier of fact Industrial 1990 as progressive degeneration or 939 10 27 06 an happening suddenly but whether the fact finder s conclusion evidence 23 1021 1 La La event her burden of compensation 809 So 2d the 2006 1876 5 R gradual deterioration to be determined in a workers writ denied on p 4 2004 2554 La precipitous Jury 2004 0600 p 3 findings in Abek Inc v accident occurred an directly producing at the time objective findings of claimant has carried his questions of fact compensation claimant bears the initial Magee 806 is defined identifiable without human fault which is injury an 934 So 2d 800 Accident workers preponderance of the evidence that a job and that he sustained App a v So 2d La the fact B E 29 K 35 hearing from the witnesses and considering the documentary evidence in the WC made the compensable following findings concerning whether Mr Poole work related accident 4 The first issue before the court is whether accident on or not Mr Poole had and scope of his The court is of the opinion that he did sustained April 10 2003 or an injury in the course an employment testimony of Mr Poole is that he injured himself swinging a maul putting in stobs to set up a form at the Team Toyota site on April 10 2003 and while he was doing that he injured his back The Now in his recorded statement of April 29 he discusses swinging a 10 pound maul driving stakes and his back went out He felt the pain immediately and it got worse as the day went on that later in the day he started feeling numbness He also says that he reported it to his supervisor Melvin and Melvin he mentioned it to Melvin and Melvin got him some help He stopped using the maul and just held the stakes for the person that Melvin got to help Now when he gave his statement he had the what occurred name He states that Robertson on that day he 2003 was with Melvin and that turns out to be incorrect it was Melvin Coleman Mr Coleman testified that Mr Poole did say that he had hurt his back on the job but he did not give any specifications as to how Mr Coleman says that Mr Poole did not tell him that he hurt it he was driving stakes but that he did recall that Mr Poole he hurt it while complained of back pain while he was on the job that day testimony before the court in discussing the accident he states that after he hurt his back driving the stobs with the maul that Melvin was standing a short distance away and he hollered to him and told Melvin that he had hurt his back and Melvin sent for Darby that meaning Darby Griffin So the only real conflict here is that Mr Now in Mr Poole s Coleman says that Mr Poole did not tell him that he hurt his back on the job just that he was having back pain but he did send for help Now Mr Poole taking says that Mr Coleman was standing a distance away and I am the position that in hollering to Mr Coleman perhaps Mr Coleman injured himself but he knew that he was having back pain he knew that he was driving stakes on the job and he sent to get him help That is corroborated by Mr Darby Griffin who took the stand and stated that he was inside at Team Toyota doing some work and that he was sent to go out and help do the concrete forming When he got the accident had already happened there out there that everybody were people standing around talking about it and he took up the maul didn t hear that he and Mr Poole held stakes for him to drive with the maul that he was not witness to the accident but he did say that they were all talking about the fact that he was hurt Now to me that is enough evidence to prove a that the accident occurred on At that time there is that the were on adjustor that crew the a job list in evidence of approximately six people only person that gave any information to and the at the time that this happened was Mr Monteleon Mr Monteleon s testimony was that Mr Poole did not go to him and tell him that he was hurt that day that he didn t know about the case until he was contacted by Mr Phillip Well nowhere in the can I find where said that he told He testimony Mr Poole said that he told Mr Monteleon about it reported in a 1007 by Jan Bourcegay or by Her testimony was that she didn t fill that 1007 her name on the 1007 out she didn t know anything about it so apparently the adjustor filled the 1007 out and put her name on it She s the human resources and payroll person No investigation was done by her No investigation was done by anyone Mr Coleman about it It was 5 even if I accept their position that they didn t They found out know that he had injured himself on the job until he stopped working because he did continue to work for about three weeks after that no one talked to any of these gentlemen who worked with him to find out if there was an accident on the job Frankly they accepted it as an accident on the job They sent him to Dr Broussard and he started getting treatment He did everything they asked him to do He continued to try to work this is a gentleman who has had no less than four accidents on the Now job in the approximately eight to ten years that he worked for Guy Hopkins Most of them I think three out of the four involved his back and on every occasion he went to the doctor he did what he was told he released to duty he went back to work and he worked again for a got couple of years or however long until he would injure his back again Sure he s got a pre existing condition but he is doing heavy manual labor and it is expected that these kinds of things will happen and they took care of him until this time when apparently surgery became necessary The court finds that there is plenty of evidence He was consistent history physicians Dr Broussard Dr Morgan every doctor that he was sent to see as to how this injury occurred and the court finds that they did absolutely no investigation whatsoever to look in his to all of his into the matter found his mean that I found Mr testimony throughout Poole accident somebody else was to testimony I to be very credible to be exceedingly credible That does not lied I think Mr Coleman may not recall hurt he got that I think Mr Coleman an s He mentioned knows he was help him finish the work for that day and then later when Mr Poole couldn t work any more they sent him to Dr Broussard So there s no doubt in my mind that Mr Poole was injured on April 10th in the and scope of his course Following an exhaustive review of the record and exhibits in this matter unable to say the We accident Poole s as testimony prove that second defined an erred in determining that Mr Poole sustained by La R S 23 1021 was at the The WO made 1 exceedingly credible and that there accident occurred guessed employment This a a work related specific finding that Mr was sufficient evidence to type of credibility determination is appellate level The WO s we are not to be ruling is reasonable and supported by the record CHOICE OF PHYSICIAN With erred in regard to the choice of physician issue Guy Hopkins argues that the WC concluding that Dr Broussard According to Guy Hopkins physician forms Thus not Mr Mr Poole had been treated years and had selected Dr Broussard of was as his Poole by Dr treating physician s choice of Broussard for on two physician over separate choice Guy Hopkins maintains that the WCTs conclusion that 6 five Mr Poole had not made knowing choice of physician a is clearly and should be erroneous 1 reversed Louisiana Revised employees right 23 1121 B Statutes to choose a provides follows as concerning an treating physician employee shall have the right to select one treating physician in any field or specialty The employee shall have a right to the type of summary proceeding provided for in R S 23 1124 B when denied his right to an initial physician of choice After his initial choice the employee shall obtain prior consent from the employer or his workers compensation carrier for a change of treating physician within that same field or specialty The employee however is not required to obtain approval for change to a treating physician in another field or specialty B 1 finding that Mr Poole did not make In instant The case Broussard the WC The WC he was noted that since 1998 although there some question as to the pure determinations WCTs 1 this matter factual much issues appropriate only April Guy Hopkins choice of The WC further explained that on those forms 1 this same of the above In addition to at the trial court level not make a issue had 2004 Mr Poole filed Thus we credibility will not disturb the knowing choice of physician previously a reveals discussion was Our review of support for the many factual findings of the WC to the record On for treatment authenticity of the signatures finding that Mr Poole did According was signed choice of physician forms in the record there were two the record reveals resolving Broussard Dr Broussard injured himself while working for Guy Hopkins time Mr Poole referred to Dr knowing choice of physician in the conflicting evidence regarding the selection of Dr reviewed physician and that each a been considered motion to compel by the WO medical treatment prior to the trial of wherein he sought an order compelling Guy Hopkins to guarantee and pay for medical treatment by an orthopedic surgeon of Mr Poole s choice On May 12 2004 the WO ruled that Mr Poole had not previously had a choice of the WO s orthopedic surgeon and thus was entitled to an orthopedic surgeon of his choice Following for supervisory review with this court which application decision on Mr Poole s motion Guy Hopkins applied was denied See Poole v Hopkins Construction 2004 1615 La App 1 Cir 12 1 04 unpublished Guy writ action Under the law of the case doctrine in the an appellate court But this generally subsequent only applies to Mire v Eatelcorp will not on a doctrine same discretionary ruling actually presented and decided by the appellate court 927 So 2d 1113 1117 writ denied 2006 0209 La Inc 2004 2603 p 7 La App 1 Cir 12 22 05 4 24 06 926 So 2d 549 Generally when an appellate court considers arguments made in supervisory re writ applications the court s disposition on the issue considered becomes law of the case foreclosing remand or in the appellate court on a later appeal litigation of that issue either at the trial court on A denial of supervisory review is However the denial of a writ application creates a different situation and does not bar merely a decision not to exercise the extraordinary powers of supervisory jurisdiction when an appeal is taken from a final reconsideration of or a different conclusion on the same question 4 n La App 1 3 judgment Display South Inc v Express Computer Supply Inc 2006 1137 p appeal parties reconsider its earlier and issues that Cir 5 4 07 case were 961 So 2d 451 453 n 3 7 FAILURE TO PAY UNIVERSITY MEDICAL CENTER BIll Guy Hopkins 3 000 00 in attorney fees testimony of the Poole who treated Mr Poole nurse same the time assessment of medical Thus at UMC a Mr remain 2 claim is Atwell he denied any work related v s unpaid also It At all times 5 R 23 1201 F provided for an which the over an for provided all 2003 pertinent 2007 0126 compensation or insurer or had if no to the manifest error standard of review 13 p La 3 16 07 La App 1 Or 12 28 06 provided as 951 952 So 2d 699 the WO found that Mr Poole 5 R 23 1201 F or exemption from the employer s UMC bill injury and that the medical treatment hereto La the employer has failed to reasonably controvert First General Services 2006 0392 April 10 to treatment La injury question of fact and is subject In the instant case to his injury penalties and attorney fees if the claim is reasonably controverted So 2d 348 357 writ denied 2 Poole A determination of whether a penalty and Guy Hopkins maintains it had sufficient information nonpayment results from conditions control 2 000 00 penalties and attorney fees for each day that benefits assessment of such of a clearly establishes that although Mr reasonably controvert its liability for the costs of this At awarding It asserts that the medical records and UMC sought treatment for back pain associated with erred in to Mr Poole for its failure to pay for Mr Poole s medical University Medical Center treatment at the next contends the WC was was clearly related reasonable and follows provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day whichever is greater for each day in which any and all compensation or medical benefits remain unpaid together with reasonable attorney fees for each disputed claim however the fifty dollars dollars in the per calendar day penalty shall not exceed a maximum of two thousand assessed in the following manner aggregate for any claim Penalties shall be F 2 Failure to This Subsection shall not apply such nonpayment results from conditions if the claim is over which the reasonably controverted or if employer or insurer had no control Louisiana Revised Statutes 23 1201 F August has since been amended 15 2003 8 by 2003 La Acts No 1204 1 effective The WC necessary Mr Poole a 2 000 00 With paid by UMC and awarded concluded that the UMC bill should be 3 000 00 in attorney fees penalty and regard noting I do find that it is University Medical Center bill to the follows as reasonable and necessary medical treatment and that it is related to the injury Mr Poole s benefits were terminated on August 3 2003 He went to the UMC on August 8 2003 His benefits had been terminated his approval for surgery had been denied with Dr Broussard he had nowhere to go He went to the only place that he could go Now the defendant has made much of the history that was given to the nurse there the emergency nurse at the medical center wherein the emergency nurse stated that he asked Mr Poole if he had suffered a trauma or excessive strain and Mr Poole said no Mr Poole has a 10th grade education and that means admitted hearing that Mr Poole made it on on through the 10th grade the stand that he cannot read choice of or write Mr Poole has very well we had a physician where that became exceedingly clear and a great command of the English language he also does not have The fact that when he sees the R N the nurse at the University Medical Center emergency room and when the nurse asks him if this is the result of trauma and he says no it is not surprising to this court that he does not understand what he in his deposition opinion The E R being asked admitted nurse He did not say trauma did you hurt at did you get hurt at work or did you get He did not bring it down to a simple level so the court is of the that there s no reason for the failure to pay the University Medical injure your back home s that he used the word or Center bill It is reasonable and necessary medical treatment it was not within 60 days of the filing of this 1008 which would put them on paid notice for there is sure a that it should have been The bill should be paid paid plus penalty for failure to pay that bill and the court is 3 000 in attorneys fees It is obvious that it is related It is all 2 000 awarding dealing just with his back the same part of the body that he had injured and he had nowhere to go because his benefits had been terminated Considering the evidence presented finding that Guy Hopkins had Thus the award of no we conclude that the WO did not objective reasons for penalties and attorney fees under failing La to manifestly err in timely pay the UMC bill 5 R 23 1201 F was proper TERMINATION Of BENEfITS Finally Guy Hopkins challenges the WCTs Mr Poole 17 000 00 award of arguing that the WC erred in finding that it terminating Mr Poole At the recoverable time under s benefits of Mr La 5 R on Poole was attorney fees to arbitrary and capricious in August 4 2003 s injuries 23 1201 2 attorney fees if the 9 employer but not or insurer penalties were arbitrarily and 3 capriciously discontinued payment of benefits due Inc 98 2271 is to be p 5 La 6 29 99 strictly construed pp 9 10 La 4 23 04 Cooper 870 So 2d 300 with 737 So 2d 41 App 1 Cir 11 7 03 St v 862 So 2d 1001 a La 2 25 03 employer had an Authement 840 So 2d 1181 terminating as Mr nature and an 2002 2433 2004 0434 La employer should be cast The crucial articulable and inquiry in making this objective reason to deny Shappert Engineering 2002 1631 v 1188 1189 In the instant case the WO found that in penal in question of fact and the trial court s not be disturbed absent manifest error benefits at the time it took action Masonry 1009 writ denied The determination of whether determination is whether the pp 11 12 This statute is 44 Rush v Tammany Parish School Bd penalties and attorney fees is essentially finding shall Williams Guy Hopkins was arbitrary and capricious s benefits and awarded him 17 000 00 in attorney fees noting follows Poole physician That s where they have always sent Mr Poole and Mr Poole went They cannot second guess their own doctor they can not utilization review their own doctor they cannot second medical opinion their own doctor and they Also Dr Broussard tried to do both was as soon as the defendant Dr s choice of Broussard recommended surgery You cannot do that I find that Guy Hopkins was arbitrary and capricious in terminating The only evidence they had to terminate August 3 2003 benefits at that time was Dr Morgan s report Dr Morgan s report as I ve already said falls very short of being good evidence to base a decision to terminate benefits on He is not the treating physician They have doctor shopped in securing his opinion and the court finds that that is arbitrary and capricious benefits on awarding temporary total disability benefits from 8 3 2003 to date with legal interest and 17 000 in attorneys fees for their arbitrarily and capriciously terminating benefits They were not questioning the accident at that time The only grounds that I can see based upon the she had nothing in her file or in her testimony testimony of Ms Haase to me to show that they were denying benefits based upon a failure to It was strictly based on believe that an accident happened at that time I Dr am Morgan s report 3 5 R 23 12012 provided in pertinent part as follows At the time in question La Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter when such discontinuance is found to be arbitrary capricious or without probable cause shall be subject to the Louisiana of all reasonable attorney fees for the prosecution and collection of such claims payment Revised Statutes 23 1201 2 substance of former La was repealed by 5 R 23 1201 2 is 2003 La now Acts No 1204 addressed in La 10 9 2 effective 5 R 23 1201 1 August 15 2003 The Now if you have two doctors with conflicting opinions that provides you some grounds to deny a claim but not when they re your own doctor and not when the treating physician is your own choice of doctor As Ive already stated you cannot doctor shop on your own normally side They had the best of both worlds at that time They had the claimant going to their choice of doctor but once Dr Broussard decided to do surgery they decided that they didn t like that and that s when they started trying to doctor shop out of that situation That s why I find that they are arbitrary and capricious in terminating benefits Based on our review of the record herein finding that Guy Hopkins benefits Accordingly we cannot say the WC clearly wrong in arbitrary and capricious in terminating Mr Poole was will not disturb the WCTs award of we was 17 000 00 in s attorney fees to Mr Poole ANSWER TO APPEAL Mr Poole has answered the the work performed on appeal and requested additional attorney fees for Additional appeal when a work on the opposing party s counsel requests an increase factors party appeals but obtains and the La See Roussell La v usually awarded St on appeal appeal has necessitated additional provided that the opposing party appropriately appropriate s and the attorney Luper v on Based the on these appeal an judgment will be amended Tammany Parish School Bd 943 So 2d 449 464 App 1 Cir 3 28 03 are 2006 0392 at 15 951 So 2d at 358 2 500 00 is App 1 Cir 8 23 06 p 14 relief and the quality of work done by Mr Poole additional award of accordingly Atwell no attorney fees 2004 2622 pp Wal Mart Stores 19 20 2002 0806 844 So 2d 329 338 CONCLUSION For the above and an additional award of necessitated assess foregoing reasons we amend the WCTs judgment to reflect 2 500 00 in attorney fees in favor of Mr Poole for the work by this appeal In all other all costs associated with this respects we affirm the WO appeal against Guy Hopkins AMENDED IN PART AND AFfIRMED AS AMENDED 11 s judgment and
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
