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Buchanan v. Luba Workers' Comp.

Court of Appeal of Louisiana, Third Circuit

February 4, 2015

MICHELLE BUCHANAN
v.
LUBA WORKERS' COMP., ET AL

APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION -- Dist. 03, PARISH OF CALCASIEU, NO. 13-02705. CHARLOTTE L. BUSHNELL, WORKERS' COMPENSATION JUDGE.

Eric J. Waltner, Allen & Gooch, Lafayette, LA, COUNSEL FOR DEFENDANTS/APPELLANTS: Luba Workers' Compensation, Vitello, Inc.

Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Michelle Buchanan.

Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion, Judges.

OPINION

Page 254

[14-1000 La.App. 3 Cir. 1] GREMILLION, Judge.

In this workers' compensation case, the workers' compensation judge (WCJ) awarded weekly indemnity benefits, $8,000.00 in penalties, and attorney fees of $12,625.00 to Michelle Buchanan. Her employer, Vitello, Inc. (Vitello), and its workers' compensation insurer, LUBA Workers' Compensation, appeal. For the reasons that follow, we affirm.

FACTS

On October 22, 2012, Ms. Buchanan was working for Vitello installing some duct work at Kauffman Hall on the campus of McNeese State University in Lake Charles, Louisiana. Her immediate task was wrapping insulation around a ten-inch duct. An anchor suspending the duct failed, and the duct fell a short distance, between two inches and one foot, and struck Ms. Buchanan's shoulder. She claimed that she suffered immediate pain in her shoulder. However, she was able to lift the duct with her left arm and transfer it to her left shoulder, where she rested it until her co-worker, Derrick Brooks, could prop it in place with a sweep broom. The broom's bristles held the section of duct in place.

Mr. Brooks verified Ms. Buchanan's version of the events except the claim by Ms. Buchanan that she experienced immediate pain; she did not complain to him, and he did not see her wince, flinch, or favor her right arm or shoulder thereafter.

After the accident, Ms. Buchanan contacted Mr. Kenny Vitello, Vice-President of Vitello. She knew the importance of notifying one's employer promptly of an accident because her fiancé, Michael St. Germain, had injured himself working for Vitello and had failed to promptly notify the company of his [14-1000 La.App. 3 Cir. 2] injury; this, she claimed, caused Mr. St. Germain's claim to be viewed with deep skepticism.

Mr. Vitello and his brother, Keith, the company president, drove to the job site to check on Ms. Buchanan's condition. Both Vitellos testified that Ms. Buchanan reassured them that she was not injured. Ms. Buchanan refused medical treatment. Ms. Buchanan testified at trial that the Vitellos told her that she was an independent contractor and did not qualify for workers' compensation benefits. The Vitellos deny this.

The work at McNeese was completed on October 25, 2012. Because its job was completed, Vitello laid off its workers, including Ms. Buchanan, who continued to work until the job was finished. Vitello had no further contact with Ms. Buchanan until it received a February 7, 2013 letter from her attorney advising of her workers' compensation claim.

Apparently, no health care provider had heard from Ms. Buchanan during that time, either. Her first medical treatment for any problems related to this incident was her appointment with Dr. Clark Gunderson, a Lake Charles orthopedic surgeon, on February 13, 2013. Ms. Buchanan ...


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