Billy McLin VS Kajun Trades
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT C NUMBER 2008 CA 0378 BILLY McLIN j VERSUS TIMMY LEBOUEF d b a KAJUN TRADES Judgment Rendered SEP 1 9 2DOB Appealed from The Office of Workers Compensation District 09 Parish of Terrebonne State of Louisiana Docket Number 06 01700 Honorable Elizabeth C Lanier Joseph 1 Weigand Judge Counsel for Plaintiff Appellee Jr Houma LA Billy McLin Keith M Counsel for Defendant Appellant Whipple Timmy LeBouef d Houma LA b a Trades BEFORE PARRO McCLENDON AND WELCH JJ I Kajun McCLENDON J In this Trades workers compensation Kajun appeals a case rendered judgment Compensation OWe finding that Kajun was in injured employment with Kajun judge awarded his s accident while in the an Following a of and increase when an employer fails LSA R S required by 23 I LSA R S to pursuant 23 1168 expenses in the penalties pursuant as to amount well LSA R S 23 Kajun appeals proving by and he a was injured additional on the duty release which the OWC June 6 2006 amount The 121 00 of for 50 a treatment and provided further to percent as for all the payment of past medical the payment of 4 000 00 in attorney fees together with judicial interest to meet his asserting that McLin failed course February we on provides judgment of the evidence that he and scope of his 13 2006 affirm the was burden of employed by Kajun employment with Kajun when McLin answers attorney fees for work necessitated following reasons court out of his 3 1201 preponderance acting within arising provide security for compensation to 6 296 77 of 4 000 00 in as 71 2 The reasonable and necessary medical McLin McLin disability benefits from the date of judgment increased the minimum weekly benefit 181 50 Kajun a the Office of Workers employee Billy course 2006 until his full 13 injury February by trial before the OWC McLin temporary total to b Timmy LeBouef d judgment of the by the the appeal and seeks appeal For the OWC court and render TESTIMONY AND EVIDENCE PRESENTED AT TRIAL McLin injured with on alleged in February Kajun a his 13 2006 contracting disputed claim for compensation that he during the company LeBouef which company does course and scope of his was employment operated by the defendant Timmy remodeling and roofing work McLin testified 2 at trial that while nailing shingles Dulac he fell from It is arm in to Shrimper s on Row house when he introduced into evidence approximately forehead and out of a However at 7 30 p injuries was was to m injured on Kajun testified McLin last date of s testified Gordon at physician at a also dated The defendant trial that McLin did Guidry Jr Kajun employees had begun the work with on the to the observed McLin sustain Guidry testified that fallen out of a During of 17 years Mason the 2005 an s not Kajun was prior s his 2006 Timmy LeBouef to s January on the 31 the date Row house heard McLin only knowledge McLin to who Shrimper s foreman stated in his affidavit that Shrimper or 13 February work through January 31 injury hospital unemployed was 2006 on 2006 Guidry which Kajun In his affidavit Guidry also averred that he worked for Kajun along with McLin dates from December 19 on hospital with abrasions that McLin roof employment the presented record s presented 13 2006 Center states trial that he had fired McLin through Brian Kajun and stated that he had fallen 17 feet both forearms the emergency Row house this date and that February 2006 February 13 on indicates that McLin fell from operates sprained right employed by Kajun and working trial reflects that McLin The report further tree Row in s The sole issue The report of Terrebonne General Medical at Shrimper employee compensation insurance covering the work secure appeal is whether McLin s on fractured left wrist and a by its employees during the applicable period Kajun the sustaining undisputed that McLin sustained injuries had failed done roof a house located on a and complain of he had of McLin s on at several no an time injury injury was half brother who told him that McLin had tree the testimony of Angel Rodrigue LeBouefs Kajun introduced into evidence 3 a common document entitled law wife Payroll for which lists the February 2006 include McLin s of checks paid to Kajun employees payments to McLin after with employment worked time on the since LeBouef and 2006 the date Kajun and returned Shrimper at a to trial that the called someone admitted that he has not of McLin work as a alleged not accident s see McLin there the at accident in addition to On had a left fisherman testified that he only people present Redbird reflect any Cody Nettleton Furthermore Row house and did not s the date of the on and check stubs which did January 31 who Nettleton testified Row house Kajun employees and does Additionally Kajun introduced into evidence copies name Kajun employee of names cross at any Shrimper himself s were examination Nettleton family relationship with LeBouef who is his wife s uncle McLin testified 2006 and was at trial that he nailing shingles on the roof of property located Row when he fell 17 feet off the roof He testified that because he roof and had home to wait until the end of the so that he could drive told him not to report because Kajun did testified that a tree working a was workday a have he to the initially stated Corroborating McLin 13 porch and then fell to s to McLin to injured LeBouef on is the the ground 4 McLin s job McLin he fell out while Emergency Physician 2006 which reports that McLin fell from to the advising that he fell from the roof statement the drive him insurance hospital personnel that on 20 00 for ask for was employee compensation he thereafter told the truth February coworker to s ground get back hospital According he the to unable for hospital personnel that to not although Record dated hit injured he Shrimper on hitting the porch and then Upon arriving home McLin called LeBouef gasoline of was employed by Kajun on February 13 was statement in a roof this record contradicts his earlier the statement and recorded in hospital personnel to hospital report McLin also testified that or made Guidry fired told him that if he fell from McLin stated that he seeking his amount exceeding admitted the date of his to prior that has filing criminal record a of either LeBouef working he would be days after the accident two brought him his McLin denied 100 00 he roof while telephoned LeBouef and LeBouef paycheck a injury final wages in cash in any but previous lawsuits theft and felony an burglary convictions McLin accident McLin on Brian Mason half brother s was residing with him that date with blood him and on holding his Mason LeBouef came his home to a roof to that he had fallen Thereafter straight fallen off a out of a according tree Mason to Mason Mason admitted roof the date of the came According to Mason later came cash had a to allegedly 20 00 for Mason gasoline initially told the doctor advised McLin to his home to Mason testified that he had quit prior to the date of McLin the not hear place Mason confirmed that LeBouef payroll previously s at get his story examination that he did 20 00 give McLin to McLin told the doctor that he had on cross gave McLin no hospital According the brief conversation between his half brother and LeBouef that took when LeBouef home Mason stated that he had give McLin stated that when he heard that McLin had hospital arm order to take McLin to the buy gasoline in on Mason stated that McLin McLin told him that he had fallen off money to testified that which been in the form of was employed by Kajun accident He admitted at but trial that he has criminal record McLin Kajun on s brother February Jimmy McLin averred that he 13 2006 on which date he 5 saw was employed by his brother fall off the roof of the Shrimper employment week one house Row s Guidry terminated Jimmy McLin s Jimmy McLin s after the accident to according Jimmy McLin admitted that he had previously been convicted of testimony theft In rebuttal testimony Guidry testified that if he they would be fired if they fell off roof while a LeBouef testified in rebuttal that he did personnel about the of his cause the date of the accident 20 00 for he working employees was joking to hospital to lie tell McLin injury and he did give McLin to not told ever not go to Mason home s on gasoline LAW AND ANALYSIS The Workers personal injury by an accident unforeseen actual unexpected or suddenly violently with the time As a or threshold Trucking Co employee for of employment event precipitous more an R S 23 1021 1 by LSA injury that is 936 burden of a as an happening directly producing than simply a at gradual s compensation claimant bears preponderance the writ denied two elements 6 4 La La App satisfied s 1 no personal Arabie 1st 12 10 04 may be sufficient to are is corroborated p employment 2004 2481 serious doubt upon the worker testimony of the evidence of his course 2003 0120 testimony alone proof provided or casts workers a Gautreaux v A claimant s an out of and in 880 So 2d 932 the worker course without human fault and establishing by So 2d 846 2 of and in the identifiable requirement injury by accident arising discredits out coverage to progressive degeneration the initial burden of 8 4 04 or objective findings of deterioration Bros arising provides An accident is defined LSA R S 23 1031 A or Act Compensation Cir 888 discharge this other evidence version of the incident and by the circumstances following the alleged incident Bruno Harbert International Inc v 593 So 2d 357 361 La 1992 The appellate in this applicable standard of review basis for the trier of fact findings and s the 2 9 La App be reversed 1st Cir 9 26 03 on reasonable and not manifestly permissible views of two them be cannot erroneous court may not manifestly If the trial in light the evidence employer had compensation fees for II On 2 App avoid the assessment on 1st Cir wife was are to Sims 16 5 or pay of that the witness Kajun points convicted must must have based 964 So 2d 998 07 out felons a penalties which workers and attorney have valid some his decision BFI Waste Services v over controvert the claim the defendant refusing credibility compensation claim is reasonably appeal Kajun argues half brother s to as choice between s provides that penalties and To legal dispute La McLin lacks Mason so evidence for frivolous 1319 p and claim are when there nonpayment results from conditions control delaying payment reason or non no findings s Consequently attorney fees shall be assessed unless the workers the court not Id erroneous or findings should the fact finder Louisiana Revised Statutes 23 1201 F reasonably controverted 2002 2600 p of the record reviewed in its Id reverse further manifestly not Hosp 857 So 2d 576 581 Factual error court must finding is SlideIl Memorial v absent manifest appeal entirety the appellate are Cousin wrong the I test part reasonable factual a appellate determine that the record establishes that the clearly two a find from the record that there is court must erroneous is case LLc on a 2006 1005 testimony presented that McLin as well Kajun emphasizes as at trial his brother the fact that present when LeBouef allegedly visited the Mason home give McLin the 20 00 for gasoline on the date of the 7 by to alleged accident Kajun argues that it is trial to to Nettleton at McLin are no biased s s to Moreover testimony witnesses call Mrs Mason Kajun Kajun longer employed by Kajun and have was the judge potential concluded in her written for bias on employed by Kajun or by falling out was of a testimony of Kajun Kajun had court no to tell witnesses s s was s court stated a motive for two conflicting a paid Jimmy McLin s The owe at false judge noted to employees the date of his brother accounting methods and that the The s statements present was poor record s at the pointed were out accident Shrimper keeping did nothing case 8 statement to on the support McLin The court stated that accident initially reflected as employees court following his brother testimony that he the upon the advice of his half brother the end of each job the week asking Furthermore unemployed ledgers introduced into evidence by Kajun paid for their work on indicated that because court his concluded that court consistent and credible request by making that the dates of payment version of the facts was contradictory fact The court believed that McLin hospital personnel but then told the truth McLin was more explanation regarding cooperated with his employer checks and The owe The hospital personnel that he believed McLin that judgment for reasons employee compensation insurance it had reflected in his medical records The testify injured by falling off a roof while tree testimony of McLin and his witnesses McLin to the part of the witnesses for each party patterns and determine whether McLin than the urges that in no reason The owe court stated that it had to choose between two the at Guidry and witnesses s testify to trial The owe there that McLin failed corroborate her husband contrast falsely significant to s generally that Jimmy corroborating s Row Kajun job s site poor help Kajun s CONCLUSION After thorough review a factual basis for the clearly wrong findings discretion in scope of his concluding we that issues are do McLin Billy we and and of the court court find there is and that the pertaining was to the acting did not award McLin to the reasonable court was not credibility of the judge abused her within the course appeal AFFIRMED AND RENDERED err in awarding and injuries McLin 500 00 in additional appeal Accordingly the judgment is affirmed in all respects 9 a the time he fell and sustained court we attorney fees incurred in responding of the owe at find that the owe attorney fees we find that the owe not employment with Kajun Furthermore penalties of the owe Although there witnesses for each party of the record Kajun is assessed with all costs
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