FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 15-06127 ANTHONY PAUL PALERMO,
WORKERS' COMPENSATION JUDGE
D. Calvit Law Office of Brian D. Calvit COUNSEL FOR
PLAINTIFF-APPELLANT/APPELLEE: Michael McCallon
Michael E. Parker Allen & Gooch A Law Corporation COUNSEL
FOR DEFENDANT-APPELLANT: Key Energy Services, LLC
composed of Elizabeth A. Pickett, Phyllis M. Keaty, and
Jonathan W. Perry, Judges.
ELIZABETH A. PICKETT JUDGE.
employee and his employer appeal the judgment rendered by the
workers' compensation judge (WCJ) in favor of the
employee. For the reasons discussed below, the judgment is
reversed in part; amended in part; affirmed as amended; and
remanded with instructions.
February 3, 2015, Michael McCallon was injured when the taxi
in which he was a passenger was struck by another vehicle.
Mr. McCallon, a resident of Natchez, Mississippi, was
employed by Key Energy Services, LLC, as a derrick hand. He
traveled to and from Williston, North Dakota, for work. Mr.
McCallon had completed an eighteen-day hitch and was
traveling to the Williston airport to return home when the
collision occurred. To insure that he did not miss his
flight, Mr. McCallon had his taxi driver arrange for another
taxi to transport him the remaining distance to the airport.
home in Natchez, Mr. McCallon sought treatment for back pain
and radiating leg pain, which he reported began during his
flight home. He was diagnosed with a herniated disc at L5-S1,
and surgery to repair the injury was performed in July 2015.
One of Mr. McCallon's employee benefits was short-term
disability, and he filed a claim for short-term disability
benefits after learning the extent of his injury. He was paid
short-term disability benefits until August 4, 2015.
September 2015, Mr. McCallon filed a Disputed Claim for
Compensation in which he alleged that he was injured while in
the course and scope of his employment with Key Energy
Services and, therefore, entitled to indemnity and medical
benefits. Key Energy Services denied his claim and contends
that Mr. McCallon was not in the course and scope of his
employment when the collision occurred and that the collision
was not an accident as defined by the Louisiana Workers'
April 2016, Mr. McCallon was a passenger in a vehicle when
the driver lost control of the vehicle, and it rolled over.
His L-3 vertebra was fractured in the accident. In May 2016,
Mr. McCallon notified Key Energy Services of the accident and
his injury. In June 2016, Mr. McCallon settled his claim for
personal injuries against the driver and insurer of the
vehicle for the $25, 000 policy limits without obtaining Key
Energy Services' consent to the settlement.
18, 2016, the parties tried their claims before the WCJ. The
parties' claims presented a number of issues for
resolution, including whether Mr. McCallon was injured in an
accident that occurred within the course and scope of his
employment when the taxi collision occurred; if so, was Key
Energy Services entitled to an offset for the short-term
disability benefits Mr. McCallon was paid; and whether Mr.
McCallon forfeited his right to compensation benefits because
he settled his personal injury claim arising from the April
2016 accident without Key Energy Services' consent.
taking the matter under advisement, the WCJ issued an oral
ruling in which he held that Mr. McCallon was injured in the
course and scope of his employment and entitled to indemnity
and medical benefits. The WCJ further held that the April
2016 accident caused Mr. McCallon further injury and
disability and that Mr. McCallon settled his claim for
injuries arising out of that accident without obtaining Key
Energy Services' consent to the settlement. Based on this
finding, the WCJ held that Mr. McCallon forfeited all
benefits to which he was or would be entitled. On December
16, 2016, the WCJ signed a judgment consistent with his WCJ
Mr. McCallon filed a Motion for New Trial and/or Motion to
Amend Judgment, and Key Energy Services filed a Motion for
New Trial and/or Clarification of Ruling. After a hearing on
both motions, the WCJ denied the motion for new trial but
agreed to amend the judgment. On March 16, 2017, the WCJ
again issued oral reasons for ruling in which he determined
that because Mr. McCallon settled his injury claim for the
April 2016 accident without Key Energy Services' consent,
Mr. McCallon forfeited any benefits to which he was entitled
after the April 2016 accident. The WCJ further stated that
Mr. McCallon is not entitled to any benefits prior to the
April 2016 accident, "until such time as a credit would
be reduced by the [monies] he received in the tort suit,
and/or [he] pays Key Energy Services for any benefits
this oral ruling, Key Energy Services filed a Motion to Fix
Judgment, and on June 12, 2018, the WCJ issued a second
judgment. In this judgment, the WCJ held that Mr. McCallon
was in the course and scope of his employment with Key Energy
Services at the time of the accident, that he is entitled to
benefits from February 3, 2015, to April 16, 2016, and that
all medical bills are to be paid in accordance with the
Louisiana Workers' Compensation fee schedule. The WCJ
also held that Mr. McCallon "forfeited his rights to
indemnity and/or medical benefits due to his failure to
inform Key Energy Services and receive their [sic] consent to
settle" his claim for the April 2016 accident. Both
McCallon assigns the following errors with the WCJ's
1. The WCJ erred in finding that Claimant's subsequent
accident aggravated the employment[-]related injury and
resulted in further disability.
2. The WCJ committed legal error in applying the forfeiture
provisions to indemnity benefits owed prior to the date of
3. The WCJ committed legal error by not allowing Claimant to
reserve his right to future compensation under the "Buy
Back" provision of La.R.S. [23:]1102(B).
4. The WCJ erred in failing to award penalties and attorney
fees for . . . Key [Energy Services'] failure to
Energy Services assigns the following errors with the
1. The [WCJ] erred in finding that Michael McCallon was in
the course and scope of his employment with Key Energy
Services . . . at the ...