Louisiana Safety Association of Timbermen VS Ernest Carlton, Jr.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT ar NUMBER 2012 CA 0775 1 LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN 1f VERSUS ERNEST CARLTON JR Judgment Rendered December 21 2012 xx Appealed from the Office of Workers Compensation District 6 Parish of Livingston State of Louisiana Docket Numbers ll 02726 The Honorable Elizabeth Warren Workers Compensation Judge Presiding xnF John A Keller Madisonville LA k9 X k kaF kaF Counsel for Plaintiff Appellant Louisiana Safety Association of Timbermen Gregory Reardon Mandeville LA Counsel for Defendant Appellee Ernest Carlton Jr BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ Q f K lhl C I fkS S C SI yN 1 r WHIPPLE J In this workers compensation matter the Louisiana Safety Association of Timbermen LSAT and Bell Carpentry Works appeal from a judgment of the Office of Workers Compensation OWC finding that defendant Ernest Carlton Jr Carlton sustained a compensable injury to his back on December 8 2008 while employed at Bell Carpentry Works and awarding benefits accordingly Carlton filed an answer to the appeal For the following reasons we affirm the judgment ofthe OWC The relief sought in the answer to appeal is denied FACTS AND PROCEDURAL HISTORY Ernest Carlton was employed as a carpenter by Bell Carpentry Works performing home construction work His duties included cutting plywood with a skill saw nailing boards toting boards and pulling tape measures On December 8 2008 Carlton and two other workers lifted a twenty beam long foot that was being used to hold up rafters and joists on the front porch of a home After Carlton assisted in picking the beam up from the saw horses his two co workers proceeded to take the beam up a ladder When they arrived at the top of the ladder the beam slipped and fell down striking Carlton in the back Carlton subsequently sought treatment for his lower back injuries and surgery was ultimately recommended Because Carlton had sustained a prior back injury for which surgery was also recommended LSAT submitted a claim for recovery against the Second Injury Fund After LSAT approved and paid for the surgery Carlton underwent an L4 laminectomy with decompression of the L3 and L4 nerve roots on 5 Bell Carpentry Works was a member of the Louisiana Safety Association of Timbermen SelfFund Insurers 2 December 14 2009 Carlton also received indemnity benefits from December 2008 to March 201 l as well as medical benefits for this accident Despite its priar approval on April 11 2011 LSAT filed a disputed claim for compensation Form 1008 contending that it had paid indemniry and medical benefits to Carlton arising from the December 8 2008 wark accident that related were not due As such LSAT sought reimbursement from Carlton for all benefits paid for the December 8 2008 accident and injury Carlton filed an answer and reconventional demand contending that LSAT arbitrarily and capriciously terminated medical and indemnity benefits without properly investigating Carlton claim Carlton fiuther alleged that LSAT failed s to provide proper and meaningful vocational rehabilitation and that its refusal was arbitrary and capricious The matter was tried heard before the OWC on December 1 2011 after which the OWC judge signed a judgment on December 7 2011 finding that 1 Carlton sustained a compensable injury to his back on December 8 2008 while employed at Bell Carpentry Warks 2 LSAT is not entitled to reimbursement of indemnity and medical benefits previously paid 3 Carlton average weekly wage is 517 with a corresponding s 50 compensation rate of 345 17 4 LSAT was obligated to pay Carlton temporary total disability benefits from March 25 2011 through May 6 2011 at the rate of 345 per week 17 5 LSAT was obligated to pay Carlton supplemental earnings benefits in the following amounts May 2011 61531 August 2011 45 228 3 September 2011 90 461 October2011 20 395 November 2011 to be paid after submission of Form 1020 6 LSAT was obligated to pay Carlton continuing monthly supplemental earnings benefits upon receipt of Form 1020 7 all indemnity awards listed above including future supplemental earning benefits were subject to a credit in favor ofLSAT in the amount of 99 010 23 representing overpayments of temporary total disabiliry benefits from December 9 2008 through March 24 2011 8 LSAT was obligated to pay Carlton 8 in penalties and 00 000 00 000 10 in attorney fees pursuant to LSA 23 SI R 1201 Carlton filed a motion for new trial contending that evidence proffered by LSAT established different wage information that the OWC should have used to properly calculate Carltods average weekly wage After a hearing the OWC signed a judgment on 7anuary 25 2012 denying the motion for new trial LSAT then filed the instant suspensive appeal from the OWC December s 7 2011 judgment on the merits On appeal LSAT sets forth the following assignments of error The 1 Workers Compensation Judge abused her discretion and committed error in striking appellants Pre Statement and Trial precluding the employer from testifying 2The Workers Compensation Judge committed error in finding that claimant sustained his burden of proving that his back injury continuing back complaints and subsequent surgery were causally related to the December 8 2008 accident The 3 Workers Compensation Judge committed error in concluding that the employee claim was compensable despite s the fact that the employee returned to work following a prior work related accident before 1vIlVII and befare having been released by his treating physician and after settling his prior claim for a substantial sum 4 4 The Workers Compensation Judge committed error in denying appellants claim for fuil reimbursement ofall benefits paid 5 The Workers Compensation Judge abused her discretion in not strictly construing the penalty provisions of the Louisiana Workers Compensation Act and imposing penalties and attorney fees DISCUSSION Assignment of Error Number One LSAT first contends that the OWC abused its discretion and committed error in striking LSAT pre statement and precluding Carlton former s trial s employer Jimmy Bell from testifying A trial judge has great discretion in conducting a trial The judge is required to do so in an orderly expeditious manner and to control the proceedings so that justice is done LSA art 1631 Palace Properties L v Sizeler P C C Hammond Square Limited Partnership 2001 La App 1 Cir 12 2812 02 30 839 So 2d 82 91 writ denied 2003 La 4 840 So 2d 1219 This 0306 03 discretion includes the admissibility of a witness testimony Combs v Hartford s Insurance Companv 544 So 2d 583 586 La App 1 Cir writ denied 550 So 2d 630 La 1989 It is only upon a showing of a gross abuse of discretion that appellate courts have intervened Pino v Gauthier 633 So 2d 638 648 La App 1 Cir 1993 writs denied 94 and 94 La 3 634 So 2d 858 0243 0260 94 18 and 859 The theory inherent in pretrial procedure is to avoid surprise and to allow orderly disposition of cases Theriot v State Department of Wildlife and In 2 this assignment plaintiff contends that the OWC made an erroneous evidentiary ruling If a trial court commits evidenriary enor that interdicts its fact process this court finding must conduct a de novo review Thus any alleged evidentiary errors must be addressed first on appeal inasmuch as a finding of error may affect the applicable standazd of review Penton v Citv of Hammond Police Department 2007 La App 1 s Cir 5 991 So 2d 91 95 2352 08 2 The 3 trial court ruling on a motion to strike is interlocutory in nature and generally s is not appealable However when an unrestricted appeal is taken from a final judgment the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him in addition to the review of the final judgment appealed from Landrv v Leonard J Chabert Medical Centec 2002 La App l Cir 5 858 So 2d 454 461 n writs 1559 03 14 4 denied 2003 2003 La 10 855 So 2d 761 1748 1752 03 17 5 Fisheries 94 La App 1 Cir 4 661 So 2d 986 989 writ denied 1536 95 7 1617 95 La 10 662 So 2d 1041 95 6 If a party objects to the offered testimony of a witness not listed on the pre trial order a trial judge has great discretion in deciding whether to receive or refuse the testimony objected to on the grounds of failure to abide by the rules but any doubt must be resolved in favor of receiving the testimony See Abdon Callais Boat Rentals Inc v Louisiana Power and Li ht Company 555 So 2d 568 576 La App l Cir 1989 writ denied 558 So 2d 583 La 1990 When a party has not satisfied the technicality of supplementing responses to interrogatories the reviewing court can look to the recard for a willful or negligent failure to disclose names of witnesses in determining whether the trial judge abused his discretion Abdon Callais Boat Rentals Inc v Louisiana Power and Li t Company 555 So 2d at 576 A party failure to cooperate after the s discovery is made can color the final decision on admissibility Abdon Cailais Boat Rentals Inc v Louisiana Power and Li t Company 555 So 2d at 576 On the other hand an opponent with actual notice of the witness identity cannot s wait to object to the testimony at trial merely for strategic purposes If actual notice is acquired within a reasonable time a party must seek some corrective action or the party will be deemed to have waived the right to object at trial Abdon Callais Boat Rentals Inc v Louisiana Power and Li ht Company 555 So 2d at 5 76 After two continuances trial of the underlying matter was scheduled for December 1 2011 and LSAT served its preh statement on Carlton by mail on November 11 2011 On November 28 2011 Carlton filed a motion to strike s LSAT untimely pretrial statement Therein Carlton contended that pursuant to the OWC Scheduling Conference Order the parties pretrial statements were s due thirty days prior to the trial date Carlton further contended that not only was 6 s LSAT pretrial statement tardy but that LSAT pretrial statement once s received failed to provide the specific name of any witness that it planned to call at trial other than Carlton LSAT excused its failure to identify the witnesses it intended to call to testify before trial by arguing that it listed a and all other employees and ny representatives of BELL and a and all past or current employees of BELL ny who have witnessed ERNEST CARLTON JR alleged work accident sic or who possess any information pertinent to this claim in its tardy pretrial statement as potential witnesses LSAT contends that Carlton did not press LSAT for specific names of the employees or representatives who would be called to testify at trial The OWC heard argument on the motion prior to trial and in ruling on the motion to strike noted Similarly the witnesses The only I mean I don have t names of anybody and I think that is very prejudicial to Mr s Reardon client because the only person listed by name is Ernest Carlton In other words it a boilerplate witness list And apparently s from what you saying is there are witnesses out there that Mr re Reardon you know I guess I wasn aware ofuntil this morning So t for those reasons I will grant the Motion to Strike In the instant case it is undisputed that LSAT pre statement was s h untimely filed Moreover LSAT never provided Carlton with the identity of any witnesses nor does the record demonstrate that Carlton had actual knowledge via LSAT pre statement or otherwise that Jimmy Bell would be called to s trial testify Accordingly considering the record and circumstances herein we find the OWC acted within the vast discretion afforded to it in precluding Be1Ps testimony Cf Abdon Callais Boat Rentals Inc v Louisiana Power and Light Company 555 So 2d at 576 Palace Properties L v Sizeler Hammond 577 C Square Limited Partnership 839 So 2d at 90 Kinnev v Bour eois 2006 92 7 2384 2006 pp 4 La App l Cir 9 2385 5 unreported 07 14 opinion writ denied 2007 La 1 973 So 2d 730 2026 08 7 Thus on review we find no error or abuse of the OWC discretion in s granting Carlton smotion to strike This assignment lacks merit Standard of Review In a workers compensation case whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the OWC Authement v Wal 2002 La App l Cir Mart 2434 03 26 9 857 So 2d 564 570 Additionally whether the refusal to pay benefits warrants the imposition of penalties and attomey fees is likewise a factual question Crochet v Barbera Chevv Com Inc 2004 La Chrysler any 1390 App 1 Cir 6 917 So 2d 49 53 Appellate review of the factual OS 29 findings in warkers compensation cases is governed by the manifest error or clearly wrong standard Roberts v Thibodaux Healthcare Center 2005 0774 La App l Cir 3934 So 2d 84 91 06 24 The two test for appellate review of facts is 1 whether there is a part reasonable factual basis in the record for the finding of the trial court and 2 whether the record establishes that the finding is not manifestly erroneous Mart v Hill 505 So 2d ll20 1127 La 1987 Thus an appellate court may not set aside a trial court factual findings unless reviewing the record in its s entirety it determines the trial court factual finding was clearly wrong s Stobart v 5tate Tl hDOTD 617 So 2d 880 882 La 1993 rou Under the manifest error rule the reviewing court does not decide whether the factual findings are right or wrong but whether they are reasonable Lizana v Gulf Coast Pain Institute 2003 La App 1 Cir 1672 04 14 5 879 Sa 2d 763 765 If the fact finder findings are reasonable in s light of the record reviewed in its entirety the court of appeal may not reverse 8 even though convinced that had it been sitting as the trier of fact it would have weighed the evidence Sistler v differently Libertv Mutual Insurance Company 558 So 2d 1106 1112 La 1990 Where two permissible views of the evidence exist the fact finder choice between them cannot be manifestly s erroneous or clearly wrong Stobart 617 So 2d at 883 Furthermore when factual findings are based on determinations regarding the credibility of witnesses the manifest error standard demands great deference to the trier of fact findings far only the fact finder can be aware of s the variations in the demeanor and tone that bear so heavily on the listener s understanding and belief in what is said Rosell v ESCO 549 So 2d 840 844 La 1989 Assignments of Error Numbers Two and Three In these assignments LSAT contends that the OWC committed error in finding that claimant sustained his burden of proving that his back injury continuing back complaints and subsequent surgery were causally related to the December 8 2008 accident and in concluding that the employee claim was s compensable despite the fact that the employee returned to wark following a prior related work accident before ha reached MNII and having been released by ing his treating physician and after settling his prior claim An otherwise healthy employee with a preexisting condition is entitled to benefits if he can prove that his work contributed to aggravated or accelerated his injury Ha v Louisiana State Penitentiarv 2006 La App 1 Cir s 0553 07 15 8 970 So 2d 547 556 writ denied 2007 La 1973 So 2d 2258 08 25 758 An employee work accident is presumed to have caused his s related disability when he proves that before the accident he had not manifested his disabling symptoms that commencing with the accident disabling symptoms appeared and that there is either medical or circumstantial evidence indicating 9 a reasonable possibility of a causal connection between the accident and the disabling condition Walker v Halliburton Services Inc 93 La App 3 722 Cir 3 654 So 2d 365 369 writ denied 95 La 9 660 So 95 1 1507 95 22 2d 481 The parties do not dispute that Carlton had a previous low injury far back which he treated with Dr Henry L Eiserloh an orthopedic surgeon After conservative treatment Dr Eiserloh recommended surgery at the L4 levels for 5 that injury Nonetheless as noted by Dr Eiserloh Carlton declined the surgery and returned to work Notably Carlton remained asymptomatic until the December 8 2008 accident herein After the December 8 2008 accident Dr Eiserloh examined Carlton Dr Eiserloh found that Carlton pain had worsened that he had spasm with s acute injury that Carlton had some subtlety of extension of disc herniation and that he had a definite warsening of his physical condition which were shown by objective physical findings Dr Eiserloh found that the injuries sustained after the December 8 2008 accident were an aggravation of Carlton pre s existing lumbar herniation with some extension of disc herniation Accordingly Dr Eiserloh again recommended surgery at L4 5 LSAT requested a second medical opinion in this case which was provided by Dr Scott G Petrie an orthopedic surgeon Dr Petrie examined Carlton on March 30 2009 and likewise noted Carlton sobjective physical findings After examining Carlton and reviewing his medical records including x and an rays MRI of the lumbar spine Dr Peh agreed with Dr Eiserloh findings noting s We feel that in light of his symptoms which started after this most recent accident at work and he had a period of over two years where he had no symptoms from his previous back treatment that this accident aggra ar ated worsened his condition Emphasis added 10 Moreover LSAT conducted a rehab conference with Dr Eiserloh on August 13 2010 in order to secure Second Injury Fund approval At that time Dr Eiserloh opined that Carlton December 8 2008 injury merged functionally s with his pre lumbar hemiated disc to create a greater disability resulting existing in the need for L4 surgery 5 After a thorough review of the voluminous testimony and evidence of record herein including the medical and expert testimony given our standard of review we find the OWC decision that claimant sustained his burden of proving s that his back injury continuing back complaints and subsequent surgery were casually related to the December 8 2008 accident to be reasonable and amply supported by the record Thus we find no error in the OWC fmdings and s decline to upset the OWC fmdings regarding causation Moreover we further s find the OWC correctly determined that Carlton proved that his December 8 2008 accident contributed to aggravated or accelerated his preexisting injury thus entitling him to benefits See Haves 970 So 2d at 556 These assignments lack merit Assignments of Error Numbers Four and Five To the ea that LSAT contends that the OWC committed errar in tent denying its claim for full reimbursement of all benefits paid considering our finding that the OWC correctly determined that Carlton accident and injuries s were casually related to the December 8 2008 accident and that Carltods claim was compensable we likewise find no merit to this assignment of error Moreover we find no merit to LSAT final assignment of error i s e that the OWC abused her discretion by failing to strictly construe the penalty provisions of the Louisiana Workers Compensation Act and imposing penalties and attorney fees The medical evidence available to LSAT including its own s opinion expert second evaluation provided ample notice to LSAT that it was 11 obligated for such payments and treatment as causally related to the second accident and that its obligation was continuing Moreover given LSAT own s actions vis the Second Injury Fund we find no error in the OWC rejection vis a s of LSAT claim that it acted reasonably in terminating benefits and refusing to s pay or continue benefits and treatment lawfully owed and due These assignments also lack merit ANSWER TO APPEAL Carlton filed an answer to this appeal contending that the OWC erred in 1 finding that his average weekly wage was 517 with a corresponding 50 compensation rate of 345 2 awarding supplemental earnings benefits for 17 May 2011 in the amount of 61531 August 2011 in the amount of 228 45 September 2011 in the amount of 461 and October 2011 in the amount of 90 20 395 and 3 finding that LSAT is entitled to a credit in the amount of 99 010 23 Further Carlton sought additional attorney fees and interest necessitated by filing an answer in defense of this appeal Carlton began working for Bell Carpentry Works in November of 2008 making 20 per hour Carlton testified that he was never guaranteed a 40 00 hour work week by his employer Bell Carpentry Works payee report introduced by LSAT at trial show Carlton swages from the time of hire until the date of the accident herein as follows 08 13 11 00 640 08 20 11 00 600 08 28 11 00 400 08 5 12 00 430 08 8 12 00 300 32 30 20 21 hours hours hours z hours Carlton explained that the check in the amount of 300 that he received on the 00 date of the accident was given to him by his employer to help pay for his medication Based on the prior four weeks of wages the OWC calculated s Carlton average weekly wage as 517 with a corresponding compensation 50 12 rate of 345 Because Carlton had been receiving a higher compensation rate 17 of 54636 a week the OWC found that LSAT was entitled to a credit of 99 010 23 Carlton contends in his answer to appeal that he was a full employee time of Bell Carpentry Warks and as such that his average weekly compensation should have been calculated with the presumption that he worked a forty hour wark week pursuant to LSA 23 and not that he worked S 12 R 1021 i a regularly and at his own discretion less than forty hours per week pursuant to s i2 x io2i sa 23 r ii a The calculation of an employee average weekly wage is a factual finding s subject to the manifest clearly error wrong standard of review Nitcher v Northshore Regional Medical Center 2011 La App 1 Cir 5 92 So 1761 12 2 3d 1001 1013 writ denied 2012 La 9 98 So 3d 342 On review 1230 12 21 of the testimony and record in its entirety we reject Carlton argument in the s answer to appeal regarding his work with Bell Carpentry Works Carlton presented no evidence whatsoever to rebut the evidence that the hours he worked Louisiana 4Revised Statute 23 provides in part as follows 1021 12 Wages means average weekly wage at the time of the accident The average weekly wage shall be determined as follows a Hourly wages i If the employee is paid on an hourly basis and the employee is employed for forty hours or more his hourly wage rate multiplied by the average actual hoars worked in the four full weeks preceding the date of the accident or forty hours whichever is greater or ii If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regulazly and at his own discretion works less than forty hours per week for whatever reason then the average of his total earnings per week for the four full weeks preceding the date of the accident 13 were as recorded by his employer in its payee report introduced herein As such we fmd no error in the OWC scomputation of Carlton average weekly wage s Moreover considering our finding that the OWC did not err in its determination that Carlton was not a full employee we find no error in the time s OWC awards of supplemental earnings benefits or its finding that LSAT is entitled to a credit in the amount of 23 Because we find no merit to the 99 010 arguments set forth by Carlton in his answer to appeal we decline to award Carlton additional attorney fees and interest s Thus the relief sought in the answer to appeal is denied CONCLUSION For the above and foregoing reasons the December 7 2011 judgment of the OWC is hereby affirmed The relief sought in the answer to appeal is denied Costs ofthis appeal are to be assessed equally to Ernest Carlton Jr and the Louisiana Safety Association of Timbermen JUDGMENT AFFIRMED RELIEF SOUGHT IN ANSWER TO APPEAL DENIED 14 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0727 LOUISIANA SAFETY ASSOCATION OF TIMBERMAN VERSUS ERNEST J CARLTON 7R McCLENDON J concurs and assigns reasons Because there is a reasonable factual basis in the record to support the s OWC findings I concur with result reached by the majority
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