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Turner v. Chicago Bridge and Iron Co.

Court of Appeals of Louisiana, Second Circuit

June 27, 2018

ALEX TURNER Plaintiff-Appellee

          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.

          JONES & ODOM, L.L.P. John S. Odom, Jr. TRAMMELL PIAZZA LAW FIRM, PLLC M. Chad Trammell Counsel for Appellee.

          Before MOORE, GARRETT, and McCALLUM, JJ.

          McCALLUM, J.

         In this 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 "Section 1208.1").

         Chicago 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.

         Turner 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 other respects.


         Chicago 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 ("questionnaire").

         On 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.

         However, 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 all day.

         On 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[1] until after the scheduled MRI, which was taken October 14, 2016.

         Dr. 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 roots.

         These findings were included in Turner's medical records at Prime.

         On 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.

         On 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 weeks.

         Turner 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 terminated.

         Turner was reassigned to light-duty work, specifically, sorting "I CARE" cards.[2] 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.


         Factual 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.

         Ultimately, 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.

         The 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.


         La. 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.

(Emphasis added.)

         Section 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 geographic region.

(Emphasis added.)

         In 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 Section 1221:

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.

         Chicago 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.

         Turner 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.

         We find no manifest error in the WCJ's decision regarding ...

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