Appealed from the Office of Workers' Compensation,
District 1-W Parish of Caddo, Louisiana Trial Court No.
16-07195 Linda Lea Smith Workers' Compensation Judge
RABALAIS UNLAND John J. Rabalais Matthew D. Crumhorn Megan C.
Gladner Counsel for Appellant.
& ODOM, L.L.P. John S. Odom, Jr. TRAMMELL PIAZZA LAW
FIRM, PLLC M. Chad Trammell Counsel for Appellee.
MOORE, GARRETT, and McCALLUM, JJ.
workers' compensation case, the employee-appellee is Alex
Turner ("Turner"). The employer-appellant is
Chicago Bridge & Iron Co. ("Chicago"). Turner
was working as a carpenter's helper for Chicago when he
injured his lower back. The workers' compensation judge
("WCJ") determined that Turner was entitled to
Supplemental Earnings Benefits ("SEB"), physical
therapy, a $6, 000 penalty, and $14, 500 in attorney fees.
The WCJ also denied Chicago's fraud claims under to La.
R.S. 23:1208 and 23:1208.1 ("Section 1208" and
appeals the judgment on the grounds that the WCJ committed
manifest error in finding: (1) Turner is entitled to SEB; (2)
Chicago failed to prove fraud under Section 1208; and (3)
Chicago failed to prove fraud under Section 1208.1.
answered the appeal asking for an increase in the amount of
attorney fees and the penalty assessed against Chicago. For
the following reasons, we increase Turner's attorney fee
award to $17, 500, and affirm the WCJ's judgment in all
hired Turner as a carpenter's helper at a construction
site near Hackberry, Louisiana, on August 19, 2016. After
being hired, but before commencing work, Turner completed the
LA OWCA Second Injury Board Knowledge Questionnaire
September 29, 2016, Turner suffered a lower back injury while
working as a carpenter's helper, and immediately reported
the injury to his supervisor. Immediately after the accident,
he was taken to Prime Occupational Medicine
("Prime"), the onsite medical facility. An X-ray of
Turner's back, taken by Dr. Henry Vreeland, revealed
findings of mild degenerative disc disease and facet
degenerative joint disease. Turner was also diagnosed with an
acute lumbar strain. He was released to return to work for
full regular duty with no restrictions. Turner was directed
to take Motrin for pain, do physical therapy, and apply ice
and heat to his back.
Turner testified that he did not return to work as a
carpenter's helper. Instead, he was required to be at the
onsite medical facility from 6:00 a.m. to 6:00 p, m. each
working day, sitting around with 20 other injured employees.
On occasion, they were required to sit in classes regarding
trades other than those for which they had been hired. These
classes included courses for electricians and heavy equipment
operators. Predominantly, he and the others just sat around
October 4, 2016, Turner was reevaluated at Prime after
complaining of back pain. He was again released to return to
assigned duties, and was directed to use heat packs three
times a day. On October 10, 2016, Turner had another followup
visit at Prime, where he again reported significant pain. He
was again cleared to return to work with
restrictions until after the scheduled MRI, which was
taken October 14, 2016.
Victor McCoy, the interpreting radiologist, summarized his
findings from the October 14, 2016, MRI as follows:
Impression: there are disc bulges and facet arthropathy along
the lumbar spine with broad posterior disc herniations at the
L3-L4, L4-L5, and L5-S1. The changes at L3-L4 cause mild
spinal canal narrowing. The changes at L4-L5 cause severe
narrowing of the lateral aspects of the spinal canal where I
suspect there is some impingement upon the traversing L5
nerve roots bilaterally. The changes at L5-S1 cause severe
narrowing of the left lateral aspect of the spinal canal
where I suspect there is impingement upon the traversing left
S1 nerve root. There are levels of mild-to-moderate foraminal
narrowing but no apparent compromise of the existing nerve
findings were included in Turner's medical records at
October 17, 2016, Turner had another followup visit with
Prime, where he again reported back pain. He was again
cleared to work with this same restrictions.
October 24, 2016, Turner was evaluated by Dr. Collins, an
orthopedist, who cleared Turner for sedentary work only. He
prescribed Mobic and Norco for pain, and Robaxin, a muscle
relaxer. He instructed Turner not to drive while on muscle
relaxers or narcotic pain medication. Dr. Collins also
prescribed physical therapy three times a week for four
testified that Joel Dennison, a Chicago employee, advised him
that he was subject to random drug screens at any time, and
if he was found to have narcotic pain medications in his
system while on the plant site, he would be immediately
was reassigned to light-duty work, specifically, sorting
"I CARE" cards. However, Turner complained that the new
work also hurt his back as he had to lean over a table when
sorting the cards. Accordingly, he refused to continue
sorting the cards. On November 4, 2016, Chicago fired Turner
for the stated reason of insubordination, as Turner refused
to do the sedentary work that had been assigned to him.
findings of an OWC judge are subject to the manifest error
standard of review on the OWC's findings of fact;
therefore, in order for a reviewing court to reverse an OWC
judge's factual findings, it must find that a reasonable
factual basis does not exist and the record establishes that
the factual findings are clearly wrong. Lafayette Bone
& Joint Clinic v. Louisiana United Bus. SIF,
2015-2037 (La. 6/29/16), 194 So.3d 1112; Dean v.
Southmark Construction, 2003-1051, p. 7 (La. 7/6/04),
879 So.2d 112, 117.
the issue to be resolved by the reviewing court is not
whether the trier of fact was right or wrong, but whether the
fact finder's conclusion was a reasonable one. If the
factual findings are reasonable in light of the record
reviewed in its entirety, a reviewing court may not reverse
even though convinced that had it been sitting as the trier
of fact, it would have weighed the evidence differently.
Stobart v. State, supra; Dombrowski v.
Patterson-UTI Drilling Co., supra.
manifest error standard of review is based upon the trial
court's observation of live testimony, as contrasted from
an appellate court's access only to a cold record, and
also "upon the proper allocation of trial and appellate
functions between the respective courts." Henderson
v. Nissan Motor Corp., 2003-606 (La. 2/6/04), 869 So.2d
62, 69, citing Stobart v. State through Dep't of
Transp. & Dev., 617 So.2d 880, 883 (La. 1993).
Accordingly, where two permissible views of the evidence
exist, the fact-finder's choice between them cannot be
manifestly erroneous or clearly wrong. Id.
ENTITLEMENT TO SUPPLEMENTAL EARNINGS BENEFITS
R.S. 23:1221(3)(a)(i) provides for the payment of SEB:
For injury resulting in the employee's inability to
earn wages equal to ninety percent or more of wages at time
of injury, supplemental earnings benefits, payable
monthly, equal to sixty-six and two-thirds percent of the
difference between the average monthly wages at time of
injury and average monthly wages earned or average monthly
wages the employee is able to earn in any month thereafter in
any employment or self-employment, whether or not the same or
a similar occupation as that in which the employee was
customarily engaged when injured and whether or not an
occupation for which the employee at the time of the injury
was particularly fitted by reason of education, training, and
experience, such comparison to be made on a monthly basis.
Average monthly wages shall be computed by multiplying his
wages by fifty-two and then dividing the product by twelve.
1221(3)(c)(i) allows the employer to defeat an employee's
otherwise valid claim for SEB, as follows:
[F]or purposes of Subparagraph (a) of this Paragraph, if the
employee is not engaged in any employment or
self-employment…the amount determined to be the wages
the employee is able to earn in any month shall in no case be
less than the sum the employee would have earned in any
employment or self-employment…which he was
physically able to perform, and (1) which he was offered
or tendered by the employer or any other employer, or (2)
which is proven available to the employee in the
employee's or employer's community or reasonable
Brown v. Offshore Energy Serv., Inc., 47, 392
(La.App. 2 Cir. 8/8/12), 104 So.3d 494, 502-3, we explained
the relationship between the two above provisions found in
Initially, [under Section 1221(3)(a)(i), ] the employee bears
the burden of proving by a preponderance of the evidence that
the injury resulted in his inability to earn…[at least
90% of his pre-accident income]… under the facts and
circumstances of the individual case. Poissenot v. St.
Bernard Parish Sheriff's Ofc., supra. Only when the
employee makes this initial showing does the burden shift to
the employer to prove that the employee is physically able to
perform a certain job and that the job was offered to the
employee or that the job was available to the employee in his
or the employer's community or reasonable geographic
area. La. R.S. 23:1221(3)(c)(i); Poissenot v. St. Bernard
Parish Sheriff's Ofc., supra.
contends that, because it provided Turner with a sedentary
job (sorting I CARE cards) which yielded him the same amount
of income, Turner is precluded by Section 1221(3)(c)(i) from
entitlement to SEB. Chicago further contends that
Turner's termination did not render Section 1221(3)(c)(i)
inapplicable because he was fired for insubordination. Thus,
Chicago argues, his post-firing inability to earn at least
90% of his pre-accident wages was a result of that
insubordination rather than the work accident. Turner argues
that he was not physically able to sort the I CARE cards
because doing so increased his back pain.
further asserts that, by requiring him to be present at the
job site in Hackberry from 6:00 a.m. to 6:00 p.m. every
workday, Chicago in effect required him to forgo the
medication and physical therapy Dr. Collins had prescribed.
This is, he argues, because of Chicago's worksite drug
policy. Indeed, despite his inability to return to work as a
carpenter's helper, Turner never went to physical therapy
while still employed by Chicago.
no manifest error in the WCJ's decision regarding