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Hayward v. BOH Bros. Constr. Co., LLC

Court of Appeal of Louisiana, Fifth Circuit

March 25, 2015

JOHN W. HAYWARD, III
v.
BOH BROS. CONSTRUCTION CO., LLC

Page 623

ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7. STATE OF LOUISIANA, PARISH OF JEFFERSON. NO. 13-6110. HONORABLE SYLVIA T. DUNN, JUDGE PRESIDING.

AFFIRMED.

J. CASEY COWLEY, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR APPELLEE, JOHN W. HAYWARD, III.

RICHARD S. VALE, PAMELA NOYA MOLNAR, FRANK J. TOWERS, ERIC E. POPE, ATTORNEYS AT LAW, Metairie, Louisiana, COUNSEL FOR APPELLANT, BOH BROS. CONSTRUCTION CO., LLC.

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg.

OPINION

SUSAN M. CHEHARDY

Page 624

On appeal, employer seeks review of the workers' compensation judge's finding of causation and its awards of penalties and attorney fees. For the following reasons, we affirm.

Procedural History

On April 18, 2013, while in the course and scope of his employment with Boh Brothers Construction Co., LLC (" Boh" ), appellant-herein, John W. Hayward, III (" Hayward" ), appellee-herein, injured his lower back. On July 1, 2013, Hayward, through his attorney, demanded payment from Boh of workers' compensation benefits and all expenses for reasonable and necessary medical treatment for injuries sustained on April 18, 2013. On July 17, 2013, Boh filed its first report of the injury because of a " possible dispute."

On August 18, 2013, Hayward filed his disputed claim for compensation, Form LWC-1008, reporting his injury of April 18, 2013, and attesting that no wage benefits had been paid and no medical treatments had been authorized. Hayward asked for SEB's, attorney fees, costs, legal interest, penalties, and legal interest on the penalties.

On September 12, 2013, Boh filed its answer denying its liability for a compensable injury on the basis that its employee, Hayward, could not " show that his alleged injuries were caused by any employment activities."

On June 11, 2014, trial on the merits commenced. After hearing the evidence and testimony, the workers' compensation judge held the record open for filing of post-trial memorandum. On August 19, 2014, the judge found that Hayward had proven a compensable injury and, thus, was entitled to temporary total disability benefits from Boh beginning May 13, 2013, through the present and continuing; to payment of all medical expenses for " the aggravation of his pre-existing back injury and the back injury that he sustained on April 18, 2013; " penalties of $8,000.00; attorney fees of $8,000.00; and costs and interest. At Boh's request, the judge issued written reasons for judgment. In its well-written reasons issued on October 27, 2014, the judge stated:

The testimony and evidence introduced were sufficient to prove that claimant had a compensable work-related accident on April 18, 2013 which entitled him to workers' compensation benefits. Additionally, there is a direct causal connexity between the accident and injury and the resulting need for surgery. There were numerous witnesses with conflicting testimony and the court had to make a credibility determination of the witnesses. There were variations in the witnesses' " demeanor" and tones of voice. The court, as fact finder, had to determine credibility of each witness and the weights to be given to each witness' testimony.... There were divergent views as to the causal connexity of the injury and the accident of April 18, 2013. When there are two permissible views of the evidence, the trial court has discretion to weigh and consider competing testimony and to determine the appropriate weight to be given to the testimony. The court has made reasonable ...

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