APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION
ADMINISTRATION, DISTRICT 6, NUMBER 16-01800 STATE OF
LOUISIANA HONORABLE GWENDOLYN F. THOMPSON, WORKERS'
B. Mitchell Kiana M. Mitchell Michael S. Rodriguez David M.
Williams New Orleans, Louisiana Counsel for Claimant
-Appellee Lance Shelton
R. Whiteley Robert J. May Megan M. Richardson New Orleans,
Louisiana Counsel for Defendant -Appellant Smitty's
BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
workers' compensation case, defendant-appellant,
Smitty's Supply, Inc. (Smitty's), appeals a judgment
awarding claimant-appellee, Lance Shelton, total temporary
disability (TTD) benefits, medical expenses, penalties, and
attorney fees. For the following reasons, we reverse in part,
amend in part, and affirm in part.
AND PROCEDURAL BACKGROUND
Shelton began working at Smitty's, a packaging facility
for automotive products and oils, on a prison work-release
program in 2009. Following his release from incarceration, he
continued working at Smitty's and was promoted to
"line leader." In that position, he was responsible
for maintaining proper production and quality on his
production line. The production line overseen by Mr. Shelton
consisted of a conveyer belt carrying empty bottles forward
to be filled with oil products. The filled bottles were then
carried under a hopper through which bottle caps were
automatically fed and mechanically placed on the bottles by a
"cap machine." A metal ladder with hand rails was
located next to the hopper. In order to periodically refill
the hopper, an employee was required to climb the ladder with
a large box of bottle caps and dump them into the top of the
hopper. Mr. Shelton testified the ladder was also used to
check on the caps, which occasionally became
"jammed" and had to be pushed down in order to flow
February 17, 2016, Mr. Shelton was descending the ladder when
he missed a step and fell to the floor. The accident was
recorded by a surveillance camera. Mr. Shelton testified at
trial he had climbed the ladder either to dump caps into the
hopper or to check whether it needed to be refilled or had
any obstructions. Shortly after the accident, he reported the
fall to his supervisor and completed a written accident
report. In the report, Mr. Shelton described the accident as
follows: "Come Down from Stairs dumping caps in capper
foot slipped and i [sic] fell on my knees and side." Mr.
Shelton completed his shift, but sat down for the remainder
of the day while supervising the production line.
days later, on February 19, Mr. Shelton spoke to his
supervisor about obtaining medical treatment and was directed
by Smitty's personnel to the Amite Rural Health Clinic
(ARHC). Mr. Shelton complained of pain in both knees and was
diagnosed with sprains in both knees. He was placed on light
duty for the next three days. When he returned to ARHC on
February 24, he was given a Medrol dose pack and continued on
February 25, Smitty's terminated Mr. Shelton's
employment for reasons ostensibly unrelated to the accident.
The stated reason was that Mr. Shelton falsified company
records on the date of the accident by indicating he made
weight checks on the products for the entire shift, which was
contradicted by the surveillance video. At trial, Mr. Shelton
explained that, although he did sit down for most of the
remainder of the shift following his accident, he had tried
to keep the production line moving and had one of his
subordinates perform the weight checks.
March 4, 2016, Mr. Shelton filed a disputed claim for
compensation seeking indemnity benefits. He later amended the
claim to also request physical therapy and surgery expenses,
as well as penalties and attorney fees due to the denial of
his claims for indemnity and medical benefits. As his choice
of physician, Mr. Shelton designated Dr. Brett Chiasson, an
orthopedic surgeon he had seen on two prior visits,
approximately seven months earlier, concerning longtime pain
(two years) in his left knee. In August 2015, an MRI was
performed on Mr. Shelton's knee on Dr. Chiasson's
orders. After Dr. Chiasson gave Mr. Shelton an injection in
his left knee on August 28, 2015, he did not seek further
treatment from Dr. Chiasson until after his February 2016
the accident, Mr. Shelton was examined by a nurse
practitioner in Dr. Chiasson's office on March 11, 2016.
Although he complained of bilateral knee pain, he was
experiencing more significant pain and mechanical symptoms in
his left knee, including difficulty bearing weight, inability
to climb stairs, and giving way of his knee. An MRI of Mr.
Shelton's left knee taken on March 16 indicated a
"possible contusion and degeneration of the ACL with a
ganglion cyst and edema noted." On a return visit on
March 18, Mr. Shelton reported significant pain "with
ambulation" to his left knee. He was given an injection
in the left knee and a referral for physical therapy. His
right knee continued to improve. Following both office
visits, Mr. Shelton's work status was classified as
"presently unable to work."
request for physical therapy was denied on March 23 by Jim
Nowak, an adjuster with Veritas Claims, who was assigned to
handle Mr. Shelton's workers' compensation claim. The
stated reason for the denial was that "[t]he request, or
a portion thereof, is not related to the on-the-job
May 16 office visit with Dr. Chiasson, Mr. Shelton complained
of an inability to walk on stairs without difficulty and a
buckling sensation in his left knee. Dr. Chiasson's
physical examination revealed "palpable tenderness along
the medial and lateral jointline" and "decreased
range of motion, secondary to pain." Because Mr. Shelton
had not improved with conservative treatment, Dr. Chiasson
recommended proceeding with an arthroscopic evaluation of his
left knee, as well as an ACL reconstruction, if indicated.
18, Mr. Nowak denied approval for the arthroscopic procedure
on the same grounds that he denied the request for physical
therapy. In his deposition, Mr. Nowak did not deny that an
accident had occurred. However, he indicated he believed Mr.
Shelton's condition was degenerative in nature and
unrelated to his work accident. On this basis, as well as the
fact that Mr. Shelton had been released to light duty by
ARHC, Mr. Nowak also denied Mr. Shelton's claim for
Shelton filed a motion for partial summary judgment on the
issue of his entitlement to temporary total disability (TTD)
benefits. At a hearing on the motion held on August 24, 2016,
defense counsel argued Mr. Shelton "staged" the
accident. The workers' compensation judge (WCJ) denied
the motion for summary judgment, finding that the
"existence of an accident" as well as whether Mr.
Shelton's disability "was related to a 'work
accident' or if it was a 'staged' event"
presented genuine issues of material fact. On December 15,
2016, Smitty's filed an amended answer in which it
alleged fraud by Mr. Shelton, asserting he "made willful
misrepresentations for the purpose of obtaining
a trial held on January 30 and April 5, 2017, the WCJ
rendered a written judgment rejecting Smitty's contention
that Mr. Shelton had committed fraud in order to obtain
workers' compensation benefits. The WCJ concluded Mr.
Shelton was injured in a work accident that aggravated the
pre-existing condition in his left knee and awarded him TTD
benefits in the amount of $673.23 per week from March 11,
2016, until the judgment was modified. The WCJ also awarded
Mr. Shelton all medical bills and expenses at issue,
including the costs of the physical therapy and arthroscopic
surgery recommended by Dr. Chiasson. Additionally, the WCJ
imposed costs, penalties of twelve percent of the unpaid
compensation, and two awards for attorney fees in the amount
of $20, 000.00 each on Smitty's due to its failure to
timely pay and/or approve indemnity benefits and medical
expenses. Smitty's appealed, raising five assignments of
error. Mr. Shelton answered the appeal and requested
additional attorney fees for the work necessitated by the
WCJ legally erred in finding Mr. Shelton did not violate La.
R.S. 23:1208 by making willful misrepresentations for the
purpose of obtaining workers' compensation benefits.
WCJ legally erred in awarding Mr. Shelton TTD benefits as a
result of finding he suffered a work accident that injured
his left knee.
WCJ legally erred in awarding penalties and attorney fees
based on her finding that Smitty's did not reasonably
controvert Mr. Shelton's entitlement to workers'
WCJ legally erred in making two awards for attorney fees
($20, 000.00 each) in violation of La. R.S. 23:1201 (J).
WCJ legally erred in awarding Mr. Shelton weekly indemnity
benefits in an amount greater than the maximum weekly
indemnity amount allowed by La. R.S. 23:1202.
findings in a workers' compensation case are subject to
the manifest error or clearly wrong standard of appellate
review. Angelo Iafrate Construction Co. v. Herring,
05-1461 (La.App. 1st Cir. 9/1/06), 943 So.2d 487, 489-90,
writ denied, 06-2365 (La. 12/8/06), 943 So.2d 1097.
An appellate court cannot set aside the factual findings of
the WCJ unless it determines there is no reasonable factual
basis for the findings and the findings are clearly wrong
(manifestly erroneous). Angelo Iafrate Construction
Co., 943 So.2d at 489-90. If the WCJ's findings are
reasonable in light of the record reviewed in its entirety,
an appellate court may not reverse even though convinced that
had it been sitting as the trier-of-fact, it would have
weighed the evidence differently. Furthermore, when factual
findings are based on the credibility of witnesses, the
factfinder's decision to credit a witness's testimony
must be given "great deference" by the appellate
court. Thus, when there is a conflict in the testimony,
reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review,
although the appellate court may feel its own evaluations and
inferences are as reasonable. Angelo Iafrate Construction
Co., 943 So.2d at 490.
OF ERROR NUMBER ONE
contends the WCJ erred in failing to find Mr. Shelton
violated La. R.S. 23:1208 by willfully making false
statements and misrepresentations for the purpose of
obtaining workers' compensation benefits. Smitty's
argues the evidence proved not only that Mr. Shelton lied
about how the ...