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Vaughn v. Dis-Tran Steel, LLC

Court of Appeals of Louisiana, Third Circuit

February 7, 2018

JEWEL VAUGHN, III
v.
DIS-TRAN STEEL, LLC

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 02 PARISH OF RAPIDES, NO. 15-07061 JAMES L. BRADDOCK, WORKERS' COMPENSATION JUDGE

          Scott Louis Zimmer Kean Miller, LLP COUNSEL FOR DEFENDANT/APPELLANT: Dis-Tran Steel, LLC

          Joseph Yuri Beck Hunter & Beck, LLP COUNSEL FOR PLAINTIFF/APPELLEE: Jewel Vaughn, III

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.

          CONERY, JUDGE.

         Dis-Tran Steel, LLC (Dis-Tran), appeals the judgment of the workers' compensation judge (WCJ) in favor of Jewell Vaughn, III, who was formerly employed by Dis-Tran as a welder. Mr. Vaughn answers the appeal seeking attorney fees for work done on appeal. For the following reasons we affirm the underlying judgment and award five thousand dollars ($5, 000.00) in attorney fees for work done on appeal.

         FACTS AND PROCEDURAL HISTORY

         Mr. Vaughn filed a 1008 Disputed Claim for Compensation, commonly referred to as a Form 1008, pursuant to La.R.S. 23:1034.2 (F)(1) on November 3, 2015, against Dis-Tran claiming, "1. No wage benefits have been paid." Mr. Vaughn also sought "[a]ll benefits and claims due claimant under the Louisiana workers' compensation laws. Penalties and attorney's fees." On December 17, 2015, Mr. Vaughn was allowed to file his first supplemental and amending disputed claim for compensation also seeking his "Choice of Physician, Dr. Arsham Naalbandian (neurologist)."

         Mr. Vaughn claimed that on September 29, 2015, he suffered a concussion while in the course and scope of his employment with Dis-Tran. Mr. Vaughn described the accident and injury in the Form 1008 as follows, "[w]hile moving materials, a coworker inadvertently struck Mr. Jewel Vaughn in the back of his head, causing the claimant to go unconscious." Mr. Vaughn was struck in the head by two welding curtains, which were knocked over by a co-worker who was moving a load of welding pipe with a crane.

         Dis-Tran answered Mr. Vaughn's claim for compensation on December 21, 2015. Dis-Tran admitted that Mr. Vaughn was employed by it on the date of the accident, and that the accident occurred while he was in the course and scope of his employment with Dis-Tran. Dis-Tran, however, denied that Mr. Vaughn had "suffered a compensable injury" and denied that he was "entitled to indemnity benefits." Dis-Tran also pled the affirmative defense of "intoxication, " pursuant to La.R.S. 23:1081(1)(b) and (5). Later, Dis-Tran clarified that they believed Mr. Vaughn was under the influence of Percocet.

         The matter was tried before the WCJ on March 2, 2017 and taken under advisement. The WCJ allowed the parties to file post-trial memoranda. On May 1, 2017, the WCJ issued its oral reasons for judgment, [1] followed by its May 23, 2017 judgment finding that Mr. Vaughn suffered a "temporary total disability beginning on September 29, 2015." The parties stipulated that Mr. Vaughn's average weekly wage was $615.13. Dis-Tran was ordered to pay Mr. Vaughn "2/3 of his average weekly wage . . . from the date of his accident, September 29, 2015, to the present, and shall continue to pay indemnity benefits as they become due[.]" The WCJ also ordered Dis-Tran to "authorize Mr. Vaughn's choice of physician specializing in neurology[, ]" and "authorize and pay for the brain MRI recommended by Dr. Gerald Calegan[.]"

         The WCJ further found that Dis-Tran had "failed to reasonably controvert Mr. Vaughn's workers' compensation claim." Therefore, the WCJ ordered Dis-Tran to "pay a $2, 000 penalty for failure to authorize indemnity benefits, and shall pay an additional $2, 000 for failure to authorize medical treatment[.]" The WCJ awarded Mr. Vaughn attorney fees in the amount of $7, 500, assessed all court costs against Dis-Tran, and awarded "legal interest on all sums awarded above, as provided by law." It is from the May 23, 2017 judgment of the WCJ that Dis-Tran appeals.

         ASSIGNMENTS OF ERROR

         Dis-Tran assigns the following assignments of error on appeal:

1. The trial court erred in holding Vaughn was not disqualified from receiving workers compensation benefits due to his intoxication at the time of the accident. Dis-Tran proved that Vaughn was intoxicated at the time of the accident, and the trial court did not shift the burden to Vaughn to rebut the presumption that his intoxication caused or contributed to the alleged incident.
2. The trial court erred in holding that Vaughn sustained a compensable work injury and that he is entitled to Temporary Total Disability Benefits from the last day he worked at Dis-Tran.
3. The trial court erred in holding Vaughn is currently unable to engage in any type of employment and entitled to ongoing Temporary Total Disability Benefits.
4. The trial court erred in awarding Vaughn penalties and attorneys' fees after Dis-Tran reasonably controverted his claim.

         LAW AND DISCUSSION

         Standard of Review

         This court discussed the standard of review to be utilized in workers' compensation cases in LeBlanc v. Wal-Mart Stores, Inc., 15-558, pp. 10-11 (La.App. 3 Cir. 11/4/15), 177 So.3d 1125, 1132-33, noting:

The standard of review in a workers' compensation claim is well established and was succinctly stated in Bracey v. City of Alexandria, 13-16, pp. 2-3 (La.App. 3 Cir. 6/5/13), 115 So.3d 1211, 1214-15, writ denied, 13-1934 (La.11/8/13), 125 So.3d 455 (quoting Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784):
Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep't. Of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, "if the [factfinder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
"The determination of coverage is a subjective one in that each case must be decided from all of its particular facts." Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). "[T]he manifest error standard of appellate review applies in workers compensation cases and great deference is accorded to the [workers' compensation judge's] factual findings and reasonable evaluations of credibility." Central Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61)[.]

         Assignment of Error Number One

         In its first assignment of error, Dis-Tran argues that the WCJ erred in finding that Mr. Vaughn was entitled to workers' compensation benefits because he was intoxicated at the time of the accident. In support of its position Dis-Tran relies on the presumption of intoxication based on Mr. Vaughn's positive drug screen for Percocet as evidenced by the drug urine screen taken at the emergency room after the accident.

         Dis-Tran's defense was based on the presumption of intoxication under La.R.S. 23:1081, which states in pertinent part:

(1) No compensation shall be allowed for an injury caused:
. . . .
(b) by the injured employee's intoxication at the time of the injury . . . . . . .
(2) In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for any cause or reason set forth in this Subsection, the burden of proof shall be upon the employer.
(3) For purposes of proving intoxication, the employer may avail himself of the following presumptions:
. . . .
5) If there was, at the time of the accident, evidence of either on or off the job use of a nonprescribed controlled substance as defined in 21 U.S.C. 812, Schedules I, II, III, IV, and V, it shall be presumed that the employee was intoxicated.
(6) The foregoing provisions of this Section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the employee was under the influence of alcoholic beverages or any illegal or controlled substance.

         Pursuant to 21 U.S.C. 812, Percocet, which is a brand name for the combination of oxycodone with acetaminophen, is a Schedule II drug. Thus, it would qualify as a controlled substance. However, the WCJ found in his oral reasons "since Mr. Vaughn was using a prescribed controlled substance, not a non-prescribed controlled substance, standing on the statute alone, DIS-TRAN Steel did not have a basis to assert a presumption of intoxication."

         Dis-Tran argues that the WCJ failed to "shift the burden to Vaughn to rebut the presumption that his intoxication caused or contributed to the alleged incident." As previously stated, the WCJ found that Dis-Tran was not entitled to the presumption because based on the plain wording of the statute, it does not apply to a prescribed medication.

         However, La.R.S. 23:1081(6) allows "the introduction of any other evidence bearing upon the question of whether the employee was under the influence of alcoholic ...


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