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LUBA Workers' Compensation v. Babineaux

Court of Appeals of Louisiana, Third Circuit

November 16, 2017

LUBA WORKERS' COMPENSATION
v.
ALBERT DENNIS BABINEAUX

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 04 PARISH OF LAFAYETTE, NO. 14-02390 SHARON MORROW, WORKERS' COMPENSATION JUDGE

          David Russell Bankston COUNSEL FOR: Defendant/Appellee - Albert Dennis Babineaux

          Eric J. Waltner Allen & Gooch, A Law Corporation COUNSEL FOR: Plaintiff/Appellant - LUBA Workers' Compensation

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.

          ULYSSES GENE THIBODEAUX CHIEF JUDGE

         In this workers' compensation matter, claimant Albert Dennis Babineaux was adjudicated permanently and totally disabled. Thereafter, the insurer, LUBA Workers' Compensation (LUBA), filed a new dispute with the Office of Workers' Compensation, alleging Mr. Babineaux had a change in condition and was no longer permanently and totally disabled. LUBA also alleged that Mr. Babineaux had violated La.R.S. 23:1208 by working while receiving indemnity benefits. The workers' compensation judge (WCJ) denied LUBA's request for modification and found no fraud on the part of Mr. Babineaux. LUBA now appeals that judgment. Finding no manifest error in the WCJ's finding that LUBA had not proven, by a preponderance of the evidence, a change in Mr. Babineaux's condition or a forfeiture of his benefits, we affirm.

         I.

         ISSUES

         LUBA asks this court to decide:

         (1) whether it was legal or manifest error not to hold that claimant had a change in his condition sufficient to modify the prior judgment proven by a preponderance of the evidence;

         (2) whether it was legal or manifest error to hold that claimant was permanently and totally disabled by clear and convincing evidence;

         (3) whether it was legal or manifest error to hold that claimant had not violated La.R.S. 23:1208.

         II.

         FACTS AND PROCEDURAL HISTORY

         This matter arises out of an accident that occurred on June 14, 2000, in the course and scope of Mr. Babineaux's employment as a self-employed electrical contractor with Dennis Babineaux Electrical Service (Babineaux Electric). In December 2000, Mr. Babineaux underwent an anterior cervical decompression and fusion surgery for the injury he sustained to his back. He was awarded temporary total disability benefits from June 1, 2000, through March 28, 2002, and supplemental earnings benefits (SEBs) from March 28, 2002. On August 6, 2010, after LUBA denied his demand to convert his indemnity benefits to permanent and total disability (PTD) status, Mr. Babineaux filed a claim seeking additional disability benefits based on his claim that he was permanently and totally disabled. His SEBs were then terminated on November 30, 2010.

         Following trial, the WCJ rendered judgment in favor of Mr. Babineaux, finding him, by clear and convincing evidence, permanently and totally disabled due, in part, to the permanent nerve damage and continued severe muscle spasms directly related to his work injury as documented in his medical records. The WCJ did not award any penalties or attorney's fees. In Babineaux v. LUBA, 12-129 (La.App. 3 Cir. 6/6/12), 91 So.3d 1270, this court affirmed the WCJ's judgment.

         On April 11, 2014, LUBA filed a new disputed claim for compensation, wherein it alleged: "Claimant had a change of circumstances and is no longer permanently and totally disabled such that the prior judgment needs to be modified. Claimant has violated 23:1208 by receiving indemnity benefits and working." In his answer, Mr. Babineaux denied any change in circumstances and admitted, in his pre-trial statement, that he "has continued to perform occasional small electrical jobs" without pay or reimbursement, except for costs, that he was doing "at the time he was adjudicated to be permanently and totally disabled."

         Through video surveillance, retail electrical supply account invoices, [1]and various testimony, LUBA presented evidence that Mr. Babineaux's supply accounts have remained active since the accident and that he has continued to engage in supervisory-type duties and performed some small electrical jobs on a gratuitous basis. In his testimony, Mr. Babineaux admitted that he had spinal surgery on September 8, 2011, which helped eliminate the pain and numbness in his legs. He also testified that the last time he saw his neurosurgeon, Dr. Patrick A. Juneau III, was on December 19, 2012, at which time he had no radicular pain, but still had lower back pain. Mr. Babineaux acknowledged that his symptoms are much better, although there are times when the symptoms are almost as bad as they were before the surgery. He has received multiple injections from Dr. Matthew Mitchell, a pain management specialist, which injections help his symptoms significantly; however, he still has painful, immobilizing spasms for which he seeks the treatment of Dr. Robert P. LeJeune, his chiropractor.

         In his testimony, Mr. Babineaux also acknowledged that he continues to drive the truck, with bins filled with electrical tools and materials, that he drove when he was working; that he helped Donnie DeRouen fix a motor control unit in 2014; and that he supervises on occasion at Donnie DeRouen Electrical Services, Inc.'s (DeRouen Electric) worksites. At those times, he testified that he has the authority to tell the employees what to do or not do. When asked about surveillance video that showed him using a shovel to dig at one worksite, Mr. Babineaux admitted that there were "young bucks" present who could have used the shovel, but he was merely shifting sand in an ...


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