Jerry Phillips, Jr. VS Sanderson Farms, Inc.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIItCUIT NO 2013 CA 0285 JERRY PHILLIPS JR C VERSUS SANDERSON FARMS INC i Judgment Rendered November 1 2013 Appealed from the Office of Workers Compensation District 6 Parish of St Tammany State of Louisiana Case No 11 06759 The Honorable Gwendolyn F Thompson Workers Compensation Judge Presiding x Jeffrey I Mandel Metairie Louisiana Counsel for Defendant Appellant Ted Williams Counsel for Plaintiff Appellee Jerry Phillips Jr Baton Rouge Louisiana BEFORE Sanderson Farms Inc KUHN HIGGINBOTHAM AND THERIOT JJ THERIOT J The appellant Sanderson Farms Inc Sanderson appeals the judgment of the Office of Workers Compensation OWC in favor of the appellee Jerry Phillips Jr Mr Phillips was awarded supplemental earnings benefits SEB with penalties and attorney fees assessed against Sanderson For the following reasons we affirm and award Mr Phillips additional attorney fees on appeal FACTS AND PROCEDURAL HISTORY Mr Phillips while in the course and scope of his employment with Sanderson lacerated and partially amputated his left index finger on August 25 2011 while cleaning a 2 eviscerating machine Mr Phillips gizzard had been briefed on Sanderson safety policies in an orientation given to s him on his hiring which included procedures for cleaning and maintenance of machinery On the date of the injury prior to cleaning the machine Mr Phillips did not lock and tag out the machine clearly in violation of the ssafety policy company Immediately after the accident Mr Phillips was brought to the on site nurse who bandaged his finger and sent Mr Phillips to North Oaks Medical Center for further treatment Sanderson paid all costs of the medical treatment Mr Phillips returned to work at light or modified duty which was to last until October 27 2011 at which time Mr Phillips was designated to return to full duty Upon his return to work the day following the injury Mr Phillips was informed that his employment with Sanderson had been terminated due to what Sanderson claimed was his gross violation of the safety policy Although Sanderson had a return policy in place Mr Phillips was work to 2 unable to benefit from the policy due to his termination Sanderson refused to pay Mr Phillips any wage benefits Mr Phillips filed a disputed claim for compensation on September 14 2011 He prayed for SEB as well as penalties and attorney fees to be assessed against Sanderson In its answer Sanderson claimed that Mr Phillips had received all workers compensation benefits to which he was entitled under the Louisiana Workers Compensation Law and that since Mr Phillips employment was legitimately terminated due to his violation s of the promulgated safety policy he was not entitled to SEB or any other benefits Trial on the matter was held on September 17 2012 and the OWC found that Mr Phillips was entitled to SEB from August 25 2011 to October 27 2011 Further the OWC found that Sanderson refusal to s award SEB warranted the assessment of penalties and attomey fees against Sanderson pursuant to Louisiana Revised Statutes F 1201 23 In its reasons for judgment the OWC stated that Sanderson can not refuse to pay workers compensation indemnity benefits based on a safety gross violation that is the accident itself Sanderson timely filed the instant appeal Mr Phillips timely answered the appeal and requested additional attorney fees and costs for work related to this appeal ASSIGNMENTS OF ERROR Sanderson argues the OWC erred in fmding that Mr Phillips was entitled to SEB despite the availability of a modified duty job at no loss of wages for which he would have been eligible but for his gross safety violation Louisiana Revised Statutes 23 et seq 1021 3 Sanderson further argues the OWC erred in finding that despite sacceptance of ttiis claim and payment of inedical benefits and Sanderson its good faith reliance on the consistent application of its safety policy in the denial of SEB Sanderson did not reasonably controvert this claim thereby subjecting Sanderson to the award of attorney fees and penalties STANDARD OF REVIEW Factual findings in a workers compensation case are subject to the manifest error or clearly wrong standard of review Banks v Indus Roofing Sheet Metal Works Inc 96 p 7 7 696 So 551 556 2840 La 1 97 2d The OWC deternunation of whether an employer or insurer should be cast s with penalties and attorney fees in a workers compensation action is essentially a question of fact and is also subject to the manifest error or clearly wrong standard of review Russeld v Regency Hosp of Covington LLC 08 p 7 App 1 Cir 1ll14 998 So 301 306 0538 La 08 2d Goodman v Manno Electric Inc 01 p 5 App 1 Cir 11 2863 La 02 8 835 So 697 701 2d DI5CUSSION At trial Sanderson presented plentiful evidence of its promulgated safety policies that in Mr Phillips sorientation at hiring he was presented these policies and that Mr Phillips signed an acknowledgement that he was aware of the policies Sanderson also alleged that Mr Phillips was negligent in his handling of the gizzard 2 machine even going so far as to suggest Mr Phillips injury was the result of his intentional act ofplacing his hand s inside the machine The OWC was not persuaded by this evidence and these arguments and we find that the OWC was not manifestly erroneous to conclude that SEB should have been paid 4 The Workers Compensation Act provides basic coverage for injuries sustained in the course of employment The Act was a compromise between labar and industry pursuant to which laborers received guaranteed no fault recovery and industry was relieved of the possibility of large damage awards in the tort system Regan O v Preferred Enterprises Inc 98 p 18 1602 La 3 758 So 124 136 00 17 2d At the very heart of the Louisiana Workers Compensation Law is the idea that workers will be indemnified for their on thejob injuries regardless of whether the accident arose out of their own negligence Although the OWC observed that Mr Phillips injury s resulted from his putting his hand in a machine that had not been properly shut off the OWC correctly found that the issue of fault is not relevant in this case Sanderson has suggested that since Mr Phillips intended to put his hand into the machine that it was an inten6onal act on his part and therefore his termination was for cause The record however is devoid of any evidence that Mr Phillips intended to hurt himself The record shows that although Mr Phillips did intend to put his hand in the machine to remove a piece of chicken stuck inside he was unaware that the machine s blades would move once he placed his hand inside Mr Phillips undertook a risk and that undertaking led to his injury His actions are consistent with a classic negligence action Such actions are protected under the Workers Compensation Act Sanderson does not consider its termination of Mr Phillips to be in bad faith since Mr Phillips was offered the opportunity to return to light duty work and eventually back to full duty status Sanderson however cannot reconcile its return policy with the fact that it terminated Mr work to Phillips on the day following the accident due to his gross safety violation 5 Although Sanderson claimed it had offered Mr Phillips continued employment Mr Phillips was never given the opportunity to perform Since the termination would have in effect exempted Sanderson from providing further benefits to Mr Phillips we fmd the reason for termination to be a convenient venire for Sanderson to refuse further benefits to Mr Phillips and we agree with the findings of the OWC that an employer cannot refuse to pay worker compensation indemnity benefits based on s gross safety violations that is the accident itself Sanderson attempt to s circumvent the Worker Compensation Act through its own safety policy s cannot be permitted Statutory protection provided to employees by the sCompensation Act supersede company safety policies Worker With respect to the penalties and attorney fees Sanderson argued that since the claim was reasonably controverted penalties and attorney fees should not have been assessed See La 23 We find that the SF R 1201 2 OWC was not manifestly erroneous in concluding that Sanderson did not reasonably controvert this claim and we use as guidance a similar employer argument set forth in Brown v Texas Cartage Inc 98 La LA 1063 98 1 12 721 So 885 In Brown the claimant was not timely paid all the 2d benefits he was due by his employer insurer The insurer noted its own s internal policy of issuing checks on a certain day of the week as an explanation as to why the payments weren made in a timely fashion The t OWC denied the claimant petition for benefits penalties and attomey s fees finding that the claim was reasonably controverted by the insurer Id at 891 892 The Louisiana Supreme Court reversed the OWC sjudgment finding the claim could not be reasonably controverted simply by the existence of the insurer internal check issuing policy Id at 892 The court stated that s 6 for a claim to be reasonably controverted the defendant must have some valid reason or evidence upon which to base the denial of benefits Id at 890 Since the insurer own internal policy could not reasonably controvert s the claim in Brown we likewise find that Sanderson own internal safety s policy cannot reasonably controvert the instant claim Without any recourse from the exception provided in La 23 Sanderson is required SF R 1201 2 by law to pay penalties and attorney fees to Mr Phillips See Russell 998 2d So at 307 Penalties shall be assessed either at 12 of the unpaid compensation or at 50 per each calendar day that benefits are unpaid up to 2 00 00 000 whichever amount is greater La R 23 T OWC assessed S 1201 he 2 F Sanderson 2 in penalties which is within the guidelines of the 00 000 statute Factors to be considered in the imposition of reasonable attorney fees in workers compensation cases include the degree of skill and work involved in the case the amount of the claim the amount recovered and the amount of time devoted to the case Russell 998 So at 306 Sanderson 2d forced NIr Phillips to have this case tried before the OWC court causing s Mr Phillips to hire an attorney We find the OWC award of 4 in s 00 500 attorney fees to be reasonable and not manifestly erroneous Mr Phillips timely answered Sanderson appeal seeking additional s attorney fees for work done on appeal A workers compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an unsuccessful appeal by the employer Atwell v First General Services 06 p 14 La App 1 Cir 12 951 So 348 358 writ 0392 06 28 2d denied 07 La 3952 So 699 Accordingly Mr Phillips is 0126 07 16 2d awarded additional attorney fees in the amount of 2 for work 00 000 performed on this appeal 7 CONCLUSION We find no manifest error in the OWC ruling that Sanderson failed s to pay SEB to Mr Phillips pursuant to La R 23 S 1201 Fand we also find no manifest error in the OWC award of penalties and attorney fees s Furthermore we award additional attorneys fees in connection with this appeal DECREE The judgment ofthe Office of Workers Compensation in fa of the or appellee Jerry Phillips Jr and against the appellant Sanderson Farms Inc is affirmed Judgment is also rendered in favor of Mr Phillips and against Sanderson Farms Inc for attorney fees with respect to this appeal in the amount of 2 All costs of this appeal are assessed to the appellant 00 000 AFFIRMED ADDITIONAL ATTORNEY FEES AWARDED ON APPEAL 8
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