On Appeal from the Office of Workers' Compensation Administration, District 6, Louisiana. Docket No. 09-07229. Honorable Gwendolyn F. Thompson, Judge Presiding.
LAURIE W. MASCHEK, SLIDELL, LA, ATTORNEY FOR PLAINTIFF-APPELLANT CARLOS CORDON.
RICHARD J. VOELKER, STEPHEN W. BROOKS, JR., COVINGTON, LA, ATTORNEYS FOR DEFENDANTS-APPELLEES PARISH GLASS OF ST. TAMMANY, INC. AND LUBA CASUALTY INSURANCE COMPANY.
BEFORE: KUHN, PETTIGREW, AND WELCH, JJ.
[2014 0475 La.App. 1 Cir. 2]
In this workers' compensation case, the claimant, Carlos Cordon, appeals a December 3, 2013 judgment of the Office of Workers' Compensation (" OWC" ), finding that Cordon forfeited his rights to all workers' compensation indemnity benefits and medical benefits, based on the intoxication defense set forth in La. R.S. 23:1081, and ordering Cordon to pay LUBA Casualty Insurance Company (" LUBA" ) restitution of $140,491.71 for indemnity benefits and $145,536.99 for medical benefits, and attorney fees of $10,000.00. For the reasons that follow, we affirm in part, vacate in part, and remand.
FACTS AND PROCEDURAL HISTORY
The underlying action arises out of a workers' compensation claim brought by Cordon for injuries he sustained after a stack of mirrors fell on him while in the course and scope of his employment with Parish Glass of St. Tammany, Inc. (" Parish Glass" ). Cordon was part of a crew that was loading mirrors at a warehouse onto Parish Glass trucks to be transported to the Parish Glass facility. There were two glass trucks being used for the job. One truck was operated by Scott Bakay, the owner of Parish Glass, who was being helped by Brandon Aubert, another Parish Glass employee. The second truck was driven by Cordon, who was working with Rick Bakay, a non-employee helper and Scott Bakay's brother. The two trucks had made one trip from the warehouse to Parish Glass without incident. And having
finished unloading their truck first, Cordon and Rick headed back to the warehouse for another load.
Although they had been instructed to wait for the other truck to get back to the warehouse before moving the mirrors, they did not wait and began moving the mirrors without help. Cordon and Rick successfully moved about three or four mirrors from a crate onto the truck, when they decided to wait for help from the others before proceeding any further. According to Rick, he was securing a mirror to the truck when he heard a pop. He looked back and saw the mirrors in the crate beginning to shift. When he saw the mirrors starting to fall, he ran over to try to stop them, but the weight was too heavy for him. Not knowing where Cordon was at the time, Rick warned Cordon to get [2014 0475 La.App. 1 Cir. 3] out of the way and let them fall. When the mirrors hit the ground, Rick heard Cordon yell, looked over, and saw Cordon under the mirrors. As a result of the accident, Cordon suffered a broken leg (requiring multiple surgeries), lacerations to his right arm (resulting in permanent scarring), and an aggravation of a preexisting neck injury.
The August 28, 2013 trial of this matter turned on the issue of whether Cordon was intoxicated at the time of the accident. A drug screen, conducted in the emergency room of Northshore Regional Medical Center immediately following the accident, indicated the presence of prescription drugs and marijuana in Cordon's bloodstream. Parish Glass and LUBA presented the expert testimony of Dr. William George, a pharmacologist and toxicologist, who testified that the drug combination in Cordon's blood should be considered a contributing factor in the accident. Cordon countered with the testimony of Dr. Adrian Talbot, his internist, who testified that the results of a drug screen did not conclusively prove intoxication at the time of the accident. Cordon further stressed that all of the eyewitnesses testified that Cordon did not take drugs nor did he appear intoxicated on the day of the accident.
At the conclusion of the evidence, the OWC took the matter under advisement. Subsequently, on December 3, 2013, the OWC signed a judgment in favor of Parish Glass and LUBA. The OWC found that Parish Glass and LUBA proved that Cordon was intoxicated at the time of the accident and that his intoxication was a factor in the accident. The OWC further found that Cordon failed to rebut the presumption of intoxication. Cordon was ordered to pay back all benefits received and was denied damages for scarring, ongoing medical treatment, penalties, and attorney fees. It is ...