FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 03
PARISH OF CALCASIEU, NO. 14-06686 CHARLOTTE A. L. BUSHNELL,
WORKERS' COMPENSATION JUDGE
E. Townsley Law Office of Thomas E. Townsley LLC
Plaintiff/Appellee - Robby Sandifer
J. Waltner Allen & Gooch, A Law Corporation
Defendant/Appellant - Calcasieu Parish Police Jury.
composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R.
Cooks, and Shannon J. Gremillion, Judges.
ULYSSES GENE THIBODEAUX CHIEF JUDGE.
Calcasieu Parish Public Works (hereafter "the
Parish") appeals a judgment in favor of
plaintiff-appellee, Mr. Robby Sandifer, which denied its
claimed offset for disability benefits and awarded Mr.
Sandifer attorney fees. The Parish contends that it is
entitled to a credit/offset for the amount it contributed to
the Parochial Employees' Retirement System
("PERS"). Additionally, the Parish alleges that the
trial court committed an error awarding Mr. Sandifer attorney
fees and finding that Mr. Sandifer was permanently and
totally disabled. Mr. Sandifer asserts that the Parish failed
to reasonably controvert Mr. Sandifer's disability status
and failed to establish the contribution for the
credit/offset. We affirm the judgment in favor of Mr.
Sandifer. Furthermore, we grant Mr. Sandifer an additional
$5, 000 in attorney fees for defending this appeal.
determine whether the trial court erred in holding that the
employer was not entitled to a credit/offset for disability
benefits paid by the employer and received by the plaintiff.
We must also determine whether the trial court erred in
awarding attorney fees. Additionally, this court must
determine whether subsequent attorney fees should be awarded
to the plaintiff for defending this appeal.
AND PROCEDURAL HISTORY
Sandifer was injured in the course and scope of his
employment with the Parish. On August 16, 2005, Mr. Sandifer
and another employee of the Parish were attempting to install
a piece of metal onto a gradeall when the metal piece
slipped, causing Mr. Sandifer to jerk forward, pulling his
lower back. Mr. Sandifer felt severe low back pain and felt
his legs buckle.
Sandifer had back surgery approximately nine months before
sustaining his work-related injury. Mr. Sandifer was treated
in Houston, Texas by Dr. Todd Trask, who performed back
surgery. After he sustained a back injury during work, Mr.
Sandifer returned to Dr. Trask who then referred him to Dr.
Richmond Simmons who handled workers'
compensation-related cases. The doctors recommended a spinal
cord stimulator implant because Mr. Sandifer experienced pain
radiating down his legs which caused him to fall frequently.
The nurse case manager sent Mr. Sandifer to see Dr. Patrick
Juneau in Lafayette. Dr. Juneau found that Mr. Sandifer
needed a two-level decompressive laminectomy and fusion at
L4-5 and L5-S. Mr. Sandifer underwent the surgery on January
4, 2005. Mr. Sandifer experienced some improvement after the
surgery but later developed low back pain and pain which
radiated down his legs. Subsequently, Dr. Juneau referred Mr.
Sandifer to Dr. Frank Lopez for pain management.
Lopez saw Mr. Sandifer on May 20, 2009, and noted that Mr.
Sandifer experienced pain in his low back, neck, chest,
groin, buttocks with pain radiating down both legs. Dr. Lopez
opined that Mr. Sandifer had low back pain and failed back
surgery syndrome. Dr. Lopez ordered an MRI which showed Mr.
Sandifer had a free/extruded disc fragment between L3-4 and
L4-5. Dr. Lopez then referred Mr. Sandifer to Dr. Erich Wolf,
a neurosurgeon, with the first appointment occurring on
August 12, 2013. Dr. Wolf's notes reflect moderate
tenderness along the lumbar spine, and muscle tenderness
ranging from moderate to severe from L-2 to L-5. Mr. Sandifer
communicated to Dr. Wolf that his pain was an eight on a
scale of one to ten, causing him severe functional impairment
and impairing his ability to sleep. Dr. Wolf performed
further testing which reflected tenderness and abnormalities
in Mr. Sandifer's muscle groups in his back. Dr. Wolf
determined that a conservative course of treatment and
administering injections would be appropriate for Mr.
Sandifer's care. The conservative treatment provided
little relief for Mr. Sandifer. Subsequently, on August 28,
2013, Dr. Wolf noted that an MRI of Mr. Sandifer's lumbar
spine showed a free fragment of disc and disc degeneration.
Dr. Wolf recommended another fusion or discography which was
denied by Utilization Review because the Medical Director
said there was no pre-psychosocial evaluation. Dr. Wolf
referred Mr. Sandifer to Jodie Guth for the evaluation which
took place on August 19, 2014. Dr. Wolf resubmitted the
request for surgery in September of 2014. Mr. Sandifer
received the discogram in early 2016.
Wolf referred Mr. Sandifer to an orthopedic surgeon, Dr.
Clark Gunderson, who recommended injections into the
sacroiliac joint with CT guidance. The injections were denied
before being approved on appeal to the Medical Director. The
procedure was performed on July 28, 2016.
October 2016, the Medical Director approved a second SI
injection after Dr. Wolf met with Mr. Sandifer following his
bilateral sacroiliac joint injection. Dr. Wolf reported that
Mr. Sandifer experienced a sixty-percent improvement from the
Mr. Sandifer saw improvement with the injection, the doctors
who evaluated Mr. Sandifer agree that he is permanently and
totally disabled. Mr. Sandifer is in severe pain and has been
out of work for over eleven years. Moreover, two vocational
counselors evaluated Mr. Sandifer and found that Mr. Sandifer
was functionally or partially illiterate, had been in special
education classes, lacked diversity in his work history, and
relied on his mother and girlfriend to help with bills and
paperwork. Additionally, Mr. Sandifer was unable to function
without his pain medication. Thus, the vocational counselors
determined that Mr. Sandifer was unable to return to work and
concluded that there was no reasonable probability that he
could be rehabilitated to the extent he can achieve gainful
was held to determine whether Mr. Sandifer is considered
permanently and totally disabled and whether the Parish was
able to show what they contributed to Mr. Sandifer's
disability/retirement benefit in order to obtain a
credit/offset for receipt of benefits from PERS. The parties
stipulated that Mr. Sandifer was injured in the course and
scope of his employment. Additionally, the parties stipulated
that Mr. Sandifer's average weekly wage is $512.80, with
a compensation rate of $341.86.
Parish contended that it was entitled to an offset of 48.85
percent of what PERS pays Mr. Sandifer. The Parish relied on
the testimony of Ms. Dianne Tulley, the administrative
director of PERS, to determine that this percentage was the
amount contributed by PERS. However, Mr. Gary Curran, the
actuary for PERS and several other state retirement funds,
testified that it is impossible to determine the percentage
of contributions the employer makes to the trust to fund
disability benefits for an individual employee because the
employer contribution rate is paid by the total salary of all
employees. Furthermore, ad valorem and revenue sharing
account for a portion of the employer's contribution.
PERS is co-mingled with two hundred entities from sixty-two
parishes, and accounts for all employees of those entities
and their ancillary beneficiaries. The workers'
compensation judge found that the Parish failed to carry its
burden of proof for the contribution to determine what the
credit/offset would be.
trial court also found that Mr. Sandifer would not be able to
achieve suitable gainful employment based on the evaluations
provided by Mr. Sandifer's doctors coupled with the
opinions of the vocational counselors. Additionally, the
trial court found Mr. Sandifer was entitled to penalties and
attorney fees. The trial court imposed $2, 000 in penalties
for the improper taking of an offset. Moreover, the trial
court awarded $20, 000 in attorney fees to Mr. Sandifer for
prosecuting the case.
Parish filed a timely Motion for New Trial. The Parish
contended that they had never taken an offset and, therefore,
the penalty was improper. The Parish further contended that
the entire basis for awarding the attorney fees was based on
the penalty and, thus, the attorney fees were also improper.
Mr. Sandifer agreed that the Parish correctly requested that
the court vacate the penalty of $2, 000 because the Parish
did not take a credit/offset. However, Mr. Sandifer asserted
that the court was within its authority to grant $20, 000 in