Jason Courtney VS Fletcher Trucking

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STATE OF LOUISIANA COURT OF APPEAL y t FIRST CIRCUIT yV NUMBER 2012 CA 0434 JASON COURTNEY VERSUS FLETCHER TRUCKING Judgment Rendered December 21 2012 Appealed from the Office of Workers Compensation District 6 Docket Number 08 20683 Honorable Gwendolyn F Thompson Workers Compensation Judge Presiding r x Michael L Cave Counsel for Plaintiff Appellee Baton Rouge Jason Courtney Craig J Robichaux LA Counsel for Defendant Appellant Maximum Leisure LLC le Mandevi LA Christopher Hammond M Moody Counsel for Defendant Appellee LA Richard Fletcher d Fletcher Trucking a b kk xeF iC9 Fkk aFk BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ r cJ Gw1S Y SS S 9 yN i ZC WHIPPLE J Defendant Maacimum Leisure LLC Maximum Leisure appeals the judgment of the Office of Workers Compensation OWC finding that claimant Jason Courtney was an employee of Maximum Leisure at the time of his accident and awarding Courtney indemnity benefits medicai expenses and penalties and attorney fees due to Maximum Leisure s s failure to timely pay indemnity and medical benefits For the following reasons we affirm in part and amend in part FACTS AND PROCEDURAL HISTORY In 2005 M Leisure a four LLC purchased property imum member on Chinquapin Canal in Maurepas Louisiana with the intention of developing the land as a subdivision and then selling the lots Thereafter Maximum Leisure hired Fletcher Trucking to perform the wark necessary to develop the property On January 2 2008 Courtney a laborer for Fletcher Trucking was shot in the leg while in the process of excavating and moving dirt from one location to another in the subdivision development Following his injury Courtney filed original and amended disputed claims for compensation averring that at the time of his injury he was an employee of both Fletcher Trucking and Maximum Leisure and that he had not been paid indemnity or medical benefits far his wark injury In related response Maacimum Leisure filed exceptions of no cause of action and no right of action contending that it had no liabiliry to Courtney for workers compensation benefits because Maximum Leisure had never employed or compensated Courtney Maximum Leisure also filed an exception of prescription which was denied by the OWC judge 2 A hearing on the exceptions was conducted on February 11 2011 at which Ronald Breeland the member of Maximum Leisure who was responsible for overseeing the development of the property on Chinquapin Canal testified before the OWC judge on behalf of Maacimum Leisure Following the hearing the OWC judge issued written reasons for judgment finding as fact that Fletcher Trucking although an independent contractor was performing excavation work for Maximum Leisure which was manual labor that constituted an integral part of Maximum Leisure principal trade s or occupation The OWC judge further found that Breeland supervised the wark at the work site on a daily basis Thus the OWC judge ruled that Richard Fletcher d Fletcher Trucking was an employee of Maximum a bs Leisure at the time of Courtney accident and accordingly that Maximum s Leisure had failed to prove that Courtney had no right of action against Maximum Leisure for workers compensation benefits Thereafter the OWC judge signed an order denying Maximum Leisure sexceptions The matter then proceeded to trial on the merits on May 4 2011 Following trial the OWC judge reaffirmed its earlier findings that work performed by Fletcher Trucking employees was manual labor performed for Maximum Leisure to develop the land and further that Breeland supervised that work on behalf of Maximum Leisure Thus the OWC judge concluded that Maximum Leisure was Courtney borrowing employer pursuant to s SC R 1031 LSA 23 and rendered judgment in favor of Courtney ordering Maximum Leisure to pay Courtney indemnity benefits medical benefits and penalties and attorney s fees From this judgment Maximum Leisure appeals listing four assignments of error 3 DISCUSSION AlleEed Erroneous Evidentiary Rulin s Assignment of Error No 3 In its third assignment of error MaYimum Leisure avers that the OWC judge made various erroneous evidentiary rulings We address this assignment of error first given that an erroneous evidentiary ruling may affect the standard of review on appeal Penton v City of Hammond Police Department 2007 La App 1 Cir 5 991 So 2d 91 95 2352 08 2 With regard to the first alleged erroneous evidentiary ruling Maximum Leisure contends that the OWC judge when ruling on the merits following trial erred in considering testimony offered in support of Maximum Leisure exceptions s As stated above at the hearing on the exceptions filed by Maximum Leisure Breeland the member of Maximum Leisure responsible for overseeing the development of the property testified According to the OWC judge written reasons in ruling on the exceptions s Breeland admitted at the hearing that the wark done by Richard Fletcher and his crew was excavation work and that he supervised the work on a daily basis at the work site However at the trial on the merits Maximum Leisure designated Monte Holland another member of Maximum Leisure as the corparate representative Holland testified that he had been voted managing member on the morning of trial Contrary to Breeland earlier testimony Holland s denied that Fletcher Trucking was performing manual labor on behalf of Maximum Leisure at the time of Courtney accident asserting that s Maximum Leisure had completed the development of the property by We Z likewise address the remaining assignments of error out of order for ease of discussion 4 the end of 2006 and from that point forward was only selling lots On appeal MaYimum Leisure asserts that the OWC judge erred in considering the earlier testimony of Breeland apparently seeking to have only the testimony of Holland considered on the issue of its liability to Courtney far workers compensation benefits Citing Twentv Judicial District Public Defender Board v Clark First 0222 2008 La App l Cir 12 Maacimum Leisure unpublished 08 23 first contends that evidence may not be considered in ruling on an exception of no cause of action and thus that any such testimony is irrelevant However as stated above in addition to its exception of no cause of action Maximum Leisure filed an exception of no right of action Evidence supporting or controverting an objection of no right of action is admissible far the purpose of showing that the plaintiff does not possess the right he claims or that the right does not exist Oxv USA Inc v Quintana Production Company 2011 La App 1 Cir 10 79 So 3d 366 376 writ 0047 11 19 denied 2012 La 3 84 So 3d 536 In support of its exception 0024 12 2 of no right of action Maximum Leisure asserted that Courtney had no right to proceed against Ma Leisure for workers compensation benefits cimum because Maximum Leisure had never employed or compensated Courtney As evidenced by the OWC judge written reasons the OWC judge s considered the testimony of Breeland in ruling on Maximum Leisure s exception ofno right of action Moreover we note that the record before us indicates that Maximum Leisure was the party that offered the testimony of Additionally 3 even if the argument asserted by Maximum Leisure regarding its liability for warkers compensation benefits would more properly be considered an argument that Courtney had no cause of action against it rather than no right of action we further note that while evidence exception of no cause of action a objection as enlarging the pleadings Louisiana State Museum 98 La 1170 is generally not admissible on the trial of an court may consider evidence admitted without Citv of New Orleans v Board of Directors of 99 2 3 739 So 2d 748 756 5 Breeland in support of its exceptions testimony which it now seeks to have ignored Thus we find no merit to the assertion that any such testimony is irrelevant Additionally we note that through its exceptions Maximum Leisure placed the issue of its potential liability to Courtney before the OWC judge asserting that it was not Courtney semployer In denying those exceptions the OWC judge specifically ruled that Fletcher Trucking was performing manual labor that was an integral part of Maximum Leisure sprincipal trade or occupation a ruling that would render Maximum Leisure liable for workers compensation benefits under the manual labar exception found in LSA 23 S 7and further that Breeland supervised the work on R 1021 a daily basis a ruling supporting the conclusion that Maximum Leisure was sborrowing employer pursuant to LSA 23 While a Courtney 5C R 1031 trial court may change its ruling on an interlocutory matter such as the denial of an exception when it timely but later determines error of judgment based upon the matter as submitted or upon subsequent disclosures in the record Vasalle v Wal Stores Inc 2001 La 11 801 So Mart 0462 O1 28 2d 331 334 we find no merit to Maximum Leisure apparent assertion 335 s that in reconsidering the issue the OWC judge was required to ignore the testimony presented at the hearing on the exceptions Furthermore with regard to Maximum Leisure contention that s s Breeland testimony should not be considered because his testimony is not contained in the record we note that as the appellant Maximum Leisure is charged with the responsibility of completeness of the record for review and any inadequacy of the record is imputable to it as appellant Moreover the appellate court presumes that the lower court ruling is correct if an s inadequate record is transmitted er v Wal Stores 2002 La Mart 0806 6 App l Cir 3 844 So 2d 329 333 n Accordingly we find no 03 28 3 merit to Ma Leisure assertions that the OWC judge erred in mum s considering the testimony of Breeland in ruling on the issue of Maximum s Leisure potential liability to Courtney as his employer for purposes of workers compensation benefits Maximum Leisure further alleges that the OWC judge erred as a matter of law and made evidentiary errars in utilizing Courtney stestimony regarding the jobs he performed without requiring testimony as to the nature of those jobs and in making a credibility determination in favor of Courtney when his testimony was inconsistent and there was evidence that discredited his testimony At the outset we note that neither of these alleged errors constitutes an evidentiary or legal error Rather these are essentially challenges to the weight assigned by the OWC judge to certain testimony and the credibility determinations made The OWC judge determinations s as to the weight to assign testimony and evidence and as to whether certain testimony is credible are factual determinations that will not be disturbed on review in the absence of manifest error Connor v Familv Dollar Store 1537 2009 La App 1 Cir 3 36 So 3d 339 348 writ denied 10 26 0959 2010 La 6 38 10 25 So 3d 344 Moreover in considering Maximum Leisure first and fourth assignments of error below through s which it challenges the findings that it was Courtney borrowing employer s and that Courtney was engaged in manual labor at the time of the accident we find no error in the OWC judge consideration of the testimony s s presented or credibility determinations4 stestimony as to the nature of the jobs he performed and whether those Courtney 4 tasks in fact constituted manual labor was available and subject to cross as examination deemed fit in these proceedings 7 Manual Labor Exception Assignment of Error No 4 In this assignment oferror Maximum Leisure contends that the OWC judge erred in finding Courtney was entitled to benefits on the basis that he was performing manual labor which was an integral part of Maximum s Leisure trade where the work being performed by Courtney was truck driving which is not considered manual labor Independent contractors are excluded from workers compensation coverage unless a substantial part of the work time is spent in manual i R 1021 labor LSA 23 Fleniken v Enterey Corporation 2000 S7 1824 2000 La App l Cir 2 780 So 2d 1175 ll90 writs 1825 O1 16 denied 2001 2001 2001 La 6 793 So 2d 1250 1268 1305 1317 O1 15 1253 1254 Labor is deemed manual if the physical elements predominate over the mental elements in performing that labor Moreover substantial part is liberally construed and is not determined by the use of mathematics McGrew v Ouality Carriers Inc 2011 La App 3 Cir 440 11 5 10 74 So 3d 1253 1256 It is the substance of the relationship and not the label used which determines whether an independent contractor recovers workers compensation benefits Steinfelds v Villarubia 2010 Subsection S 7 of LSA 23 provides as follows S R1021 Independent contractor means any person who renders service other than manual labor for a specified recompense for a specified result either as a unit or as a whole under the control of his principal as to results of his work only and not as to the means by which such result is accomplished and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract in which case the independent contractor is expressly covered by the provisions of this Chapter The operation of a truck tractor or truck tractor txailer including fueling driving connecting and disconnecting electrical and air hoses hooking and unhooking trailers and vehicle inspections are not manual labor within the meaning of this Chapter Emphasis added 8 0975 La App 4 Cir 12 53 So 3d 1275 1281 writ not considered 10 15 0137 2011 La 358 So 3d 466 11 4 By Acts 2004 No 188 1 the legislature amended the definition of independent contractor and the related manual labor exception to specifically provide that the operation of a truck tractor or truck tractor trailer is not manual labor for purposes of entitlement to workers compensation benefits Nonetheless while there are cases where truck drivers will not fit into the manual labor exception of LSA S R 7whether a substantial part of one job involves manual labor is 1021 23 s addressed on a case not a job by byjob basis McGrew 74 So 3d at 1257 In the instant case Courtney tesrified that the activities he performed on behalf of Maximum Leisure involved hauling dirt clearing land laying asphalt roads building forms wrecking forms bulkheading using chainsaws to remove wood and welding among other things On the day of his accident he was digging dirt from one location loading it into a dump truck hauling the dirt to the end of the road on which he was working and dumping it When he was driving the dump truck during this excavation project he had to stop to remove a limb from the passenger mirror As side Courtney attempted to remove the limb he was shot in the leg Thus while Courtney had been in the process of driving the dump truck shortly before he was shot we find no error in the OWC judge conclusion that a s s substantial part of the job he was performing ciearly involved manual labor The 6 record demonstrates that independent contractor Fletcher Trucking is a sole proprietorship of Mr Fletcher However a finding that Courtney was an employee of Fletcher Trucking rather than an independent contractor himself would not change the result in that Fletcher Trucking performed manual labor duties through its employees See Lumar v Zapne Endeavors L L C 06 La App 5 Cir 10 946 So 2d 317 06 31 188 191 9 See McGrew 74 So 3d at 1256 This argument also lacks merit 1257 Borrowin Emnlover Assignment of Error No 1 As stated above in addition to finding that Courtney was entitled to workers compensation benefits from Maximum Leisure under the manual labor exception the OWC judge found that M Leisure was imum s Courtney borrowing employer In this assignment of error Maximum Leisure asserts that the OWC judge erred in finding that it was Courtney s borrowing employer contending that on the date of Courtney accident s Maximum Leisure was not engaged in any on activity other than the sale site of the remaining lots and suggesting that Courtney was actually performing services that day for another company owned by Breeland Pursuant to LSA 23 a borrowing ar special employer SC R 1031 can be held liable for compensation benefits when the employee is under the control and direction of the borrowing employer in the performance of the work While there is no fixed test the factors to be considered in determining the existence of a borrowed employee relationship include right of control selection of employees payment of wages power of dismissal relinquislunent of control by the general employer which s employer work was being performed at the time in question the existence of an agreement either implied or explicit between the borrowing and lending employer furnishing of instructions and place for the performance of the work the length of employment and the employee acquiescence in s a new wark situation Mejia v Bovkin Brothers Inc 2010 La App 0118 l Cir 9 52 So 3d 82 84 10 10 In support of its contention that Maximum Leisure was not engaged in any on activity other than the sale of the remaining lots at the time of site 10 s Courtney injury Maximum Leisure relies on the testimony of Holland who testified at trial that Maximum Leisure had completed the development of the property by the end of 2006 However this testimony was contradicted by invoices from Fletcher Trucking from early 2008 wherein Maximum Leisure was billed for work performed on its behalf by Fletcher Trucking as well as by the testimony of Courtney that the work he was performing was on behalf of Maximum Leisure Moreover Holland s testimony was inconsistent with the OWC judge earlier finding based on s s Breeland testimony at the hearing on the exceptions that Maximum Leisure through Breeland exercised control of the work at the jobsite on a daily basis a finding that the OWC judge reaffirmed following trial on the merits Accordingly we find no merit to this argument Additionally with regard to its assertion that Courtney was actually performing services that day for another company owned by Breeland the OWC judge was presented with conflicting testimony on this issue and we cannot conclude that the OWC judge choice to credit the testimony of s certain witnesses and disregard the testimony of others was erroneous See Connor 36 So 3d at 348 This argument likewise is without merit Liability of Fletcher as Courtnev Direct Employer s Assignment of Error No 2 In this assignment of error Maximum Leisure contends that the OWC judge erred in failing to recognize Richard Fletcher d Fletcher Trucking a b as Courtney sdirect employer and thus in failing to find Fletcher solidarily liable with M Leisure for Courtney warkers compensation imum s As noted above the appellant is charged with the responsibility of completeness of the record for review and any inadequacy of the record is imputable to the appellant Because the record does not contain a transcript of the hearing on the exceptions the appellate court must presume that the lower court ruling is correct Luper 844 So 2d s at 333 n3 11 benefits We agree Pursuant to LSA 23 S Cwhere an employee was employed R 1031 by a borrowing or special employer at the time of his injury and was under the direction and control of the special employer in the performance of the work both the special employer and the immediate employer shall be liable jointly and in solido to pay the employee workers compensation benefits Sanchez v Harbor Construction Co Inc 2007 La App 4 0234 Cir 10 968 So 2d 783 787 07 3 In the instant case Courtney testified that he began working for Fletcher Trucking when he graduated from high school in 2005 and that he was a laborer for the company Moreover while Fletcher asserted at trial that Courtney was an independent contractor and not his employee in his trial pre statement he acknowledged that Courtney was an employee of Fletcher Trucking on the day of his injury Moreover at trial he admitted that he paid Courtney wages for the four weeks preceding Courtney s s injury from a checking account in the names of Richard Fletcher and Richard Fletcher Trucking Accordingly we will amend the judgment herein to award benefits in favor of Courtney against Maximum Leisure and Richard Fletcher d Fletcher Trucking jointly and in solido a b ANSWER TO APPEAL Courtney has answered Maximum Leisure appeal herein seeking s s attorney fees for having to defend the appeal which he asserts is frivolous Damages far frivolous appeal may be awarded pursuant to LSA art P C 2164 however because the statute is penal in nature it must be strictly We S decline to amend the judgment to cast Fletcher in judgment in solido for the penalties and attorney fees awarded because the finding of the OWC was specifically s that Maximum Leisure did not reasonably controvert the claim Moreover there was no specific finding that Fletcher failed to reasonably controvert the claim 12 construed Dukes v Sherwood Acres Apartments 2004 La App 1 S 0405 Cir 12 898 So 2d 416 418 Appeals are favared and penalties for 04 30 frivolous appeal will not be imposed unless they are clearly due The slightest justification for an appeal precludes damages for frivolous appeal Dukes 898 So 2d at 418 Considering the arguments asserted by Maximum Leisure and specifically noting that this court has ganted some of the relief requested we decline to assess damages far frivolous appeal CONCLUSION For the above and foregoing reasons the October 11 20ll judgment of the OWC is amended to cast Maximum Leisure LLC and Richard Fletcher d Fletcher Trucking jointly and in solido for the temporary total a b benefits supplemental earnings benefits and medical benefits awarded to Jason Courtney In all other respects the judgment is affirmed Courtney s answer to the appeal is denied Costs of this appeal are assessed equally against Maximum Leisure LLC and Richard Fletcher d Fletcher a b Trucking AMENDED AND AS AMENDED AFFIRMED ANSWER TO APPEAL DENIED We 9 note that neither Maximum Leisure nor Fletcher appealed the OWC judge s findings as to the type or duration of benefits to which Courtney was entitled 13 S7ATE OF LOUI5TANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0434 ASON COURTNEY VERSUS FLETCHER TRUCKING McCLENDON J concurs and assigns reasons Based on credibility issues presented in this matter I am constrained to concur with the result reached by the majority

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