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McCombs v. G.L. Jones Constr., Inc.

Court of Appeal of Louisiana, Second Circuit

January 14, 2015

DAMON SHELTON McCOMBS, Plaintiff-Appellee
v.
G.L. JONES CONSTRUCTION, INC. & VALLEY FORGE INSURANCE COMPANY, Defendants-Appellants

Appealed from the Office of Workers' Compensation, District 1W Parish of Caddo, Louisiana. Docket No. 13-01886. Honorable Patrick F. Robinson, Judge.

REVERSED AND VACATED.

MAYER, SMITH & ROBERTS, L.L.P., By: Kim Purdy Thomas, Isaac E. Khalid, Counsel for Appellants.

CREWS GRADY, PLLC, By: Pamela N. Grady, Counsel for Appellee.

Before STEWART, DREW & PITMAN, JJ.

OPINION

Page 977

[49,541 La.App. 2 Cir. 1] PITMAN, J.

This appeal arises from a judgment of the Workers' Compensation Judge (" WCJ" ) on a claim for indemnity and medical benefits under the Louisiana Workers' Compensation Act (" LWCA" ) brought by Claimant Damon S. McCombs,

Page 978

who injured his right foot while working for G. L. Jones Construction, Inc. (" Jones Construction" ). Jones Construction and its insurer, Valley Forge Insurance Company, (collectively, " Defendants" ) appeal that portion of the judgment awarding Claimant statutory penalties and attorney fees. For the following reasons, we reverse the judgment of the WCJ.

FACTS

On April 12, 2012, Claimant, who is from Alabama, was a welding supervisor for Jones Construction, an Alabama corporation, on a job at the International Paper mill in Mansfield, Louisiana. As he was watching someone weld in front of him, a piece of steel under high pressure shot out and hit the top of Claimant's right foot. He received emergency treatment in Shreveport and followed up the next day at the Work Place at Highland Clinic. He was still in pain and decided to return to Alabama for further treatment.

Shortly after the accident, Claimant discussed the accident and his injury with Gary Jones of Jones Construction. In order to avoid a " losttime" claim, Mr. Jones terminated Claimant and told him to return to Alabama to claim unemployment.[1] He agreed to help pay for medical in Alabama, but never paid workers' compensation indemnity benefits. [49,541 La.App. 2 Cir. 2] treatment if Claimant did not make a lost time claim. Claimant agreed. Mr. Jones arranged for someone to drive Claimant to Alabama, and an appointment was made for him to see a " Dr. May." However, that appointment was cancelled. On referral from Mr. Jones, Claimant saw a podiatrist, Dr. David Borcicky, on April 18, 2012. Jones Construction faxed a letter to Dr. Borcicky authorizing treatment up to $500. The letter indicated that Claimant's injury was relatively minor and concluded that, if it turned out to be more substantial, the company would determine whether to submit the claim to its workers' compensation insurer.

Dr. Borcicky confirmed the diagnosis of a large contusion, with associated swelling, on the top of Claimant's foot. He continued to treat Claimant for several weeks (nine visits). Although the abrasion and swelling gradually improved, Claimant continued to complain of pain with activity. Dr. Borcicky last saw Claimant on June 6, 2012. Although he advised Claimant to return to see him, Claimant did not return and did not receive any further treatment on his foot by any physician. The reason for lack of further treatment was not clear.

Claimant, through an attorney, filed a disputed claim for compensation, LDOL-WC-1008, on March 18, 2013. He asserted that no wage or medical benefits had been paid. None of the other boxes on the form were checked even though box number 6 states, " Medical treatment (Procedure/Prescription) recommended by not authorized." There is also a box which can be checked which states, " Choice of physician [49,541 La.App. 2 Cir. 3] (specialty) ." There is no box on the form to check showing what relief Claimant expected. Under " Other," Claimant alleged:

Employee was injured and then terminated when he reported the injury. He initially filed for worker's compensation benefits in his state of residence (AL) ...

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