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Sandifer v. Calcasieu Parish Public Works

Court of Appeals of Louisiana, Third Circuit

November 22, 2017

ROBBY SANDIFER
v.
CALCASIEU PARISH PUBLIC WORKS, ET AL.

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 03 PARISH OF CALCASIEU, NO. 14-06686 CHARLOTTE A. L. BUSHNELL, WORKERS' COMPENSATION JUDGE

          Thomas E. Townsley Law Office of Thomas E. Townsley LLC Plaintiff/Appellee - Robby Sandifer

          Eric J. Waltner Allen & Gooch, A Law Corporation Defendant/Appellant - Calcasieu Parish Police Jury.

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

          ULYSSES GENE THIBODEAUX CHIEF JUDGE.

         The 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.

         I.

         ISSUES

         We must 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.

         II.

         FACTS AND PROCEDURAL HISTORY

         Mr. 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.

         Mr. 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.

         Dr. 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.

         Dr. 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.

         In 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 treatment.

         Although 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 employment.

         A trial 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.

         The 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.

         The 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.

         The 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 attorney ...


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