Appeal from the Office of Workers' Compensation, District
5 In and for the Parish of East Baton Rouge State of
Louisiana Docket Nos. 15-07015 c/w 15-07759 Honorable Pamela
A. Moses-Laramore, Workers Compensation Judge Presiding
Williams Baton Rouge, Louisiana Ted Williams Baton Rouge,
Louisiana Counsel for Plaintiff/ Appellant and Appellee,
Walter Willard Fee Counsel for Plaintiff/ Appellant and
Appellee, Walter Willard Fee
Lindsay F. Louapre New Orleans, Louisiana Lindsay F. Louapre
New Orleans, Louisiana Counsel for Defendant/ Appellant,
Southern Packaging, Inc. Counsel for Defendant/ Appellant,
Southern Packaging, Inc.
E. Wilson Jessica P. Marsh Lafayette, Louisiana Jason E.
Wilson Jessica P. Marsh Lafayette, Louisiana Counsel for
Defendants/ Appellees, Pineville Forest Products, Inc. and
Capital City Insurance Co. Counsel for Defendants/ Appellees,
Pineville Forest Products, Inc. and Capital City Insurance
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
matter is before us on consolidated appeals filed by
plaintiff, Walter Fee, and defendant, Southern Packaging,
Inc., from an April 25, 2018, judgment of the Office of
Workers' Compensation ("OWC"). The workers'
compensation judge ("WCJ") issued a judgment
finding that defendant, Pineville Forest Products, Inc., was
not Mr. Fee's statutory employer pursuant to LSA-R.S.
23:1061 A(2). Mr. Fee appeals this portion of the judgment.
Conversely, the WCJ found that Southern Packaging, Inc., was
Mr. Fee's statutory employer pursuant to LSA-R.S. 23:1061
A(2). Southern Packaging appeals this portion of the
judgment. For the reasons set forth below, we affirm the
portion of the judgment dismissing all claims against
Pineville Forest and Capitol Insurance Co., reverse the
portion of the judgment that held Southern Packaging was Mr.
Fee's statutory employer at the time of the accident, and
render judgment in favor of Southern Packaging and against
AND PROCEDURAL HISTORY
was injured on May 2, 2007, while in the course and scope of
employment with B & W Logging Company, LLC. Mr. Fee was
struck in the head by a tree limb that allegedly resulted in
permanent and disabling injuries to his head, brain, and
neck. At the time of the accident, Mr. Fee was cutting and
hauling timber to Southern Packaging's mill from a timber
tract owed by the Pourciau family in New Roads, Louisiana.
Packaging manufactures and sells wooden pallets and, in
conjunction with these operations, buys timber or lumber from
third parties. Southern Packaging entered into a timber deed
with members of the Pourciau family in October 2006 wherein
Southern Packaging purchased timber on the Pourciau tract for
the sum of $50,000.00. Pursuant to the timber deed, Southern
Packaging had the option to harvest the timber within two
years; otherwise, the timber rights would revert back to the
date of Mr. Fee's accident, B & W Logging had
workers' compensation insurance through Timberman's
Self Insurers' Fund. Timberman's accepted and paid
medical and indemnity benefits arising from Mr. Fee's
injuries from the date of the accident until Timberman's
"went bankrupt" on September 16, 2015. B & W
Logging subsequently ceased doing business and was dissolved
in December 2010.
November 2015, Mr. Fee filed a Form 1008/Disputed Claim for
Compensation with the OWC against Southern Packaging,
asserting that Southern Packaging was his statutory employer
at the time of the accident such that Southern Packaging was
responsible for the payment of workers' compensation
benefits. In December 2015, Mr. Fee filed a separate Form
1008/Disputed Claim for Compensation with the OWC, alleging
that Pineville Forest was his statutory employer and, thus,
responsible for the payment of his workers' compensation
benefits. Mr. Fee contends that Southern Packaging
hired Pineville Forest, a timber dealer, to harvest the
timber from the Pourciau tract and that Pineville Forest then
subcontracted the work to B & W Logging.
matter proceeded to trial on the merits before the WCJ on
April 4, 2018. Prior to trial, the parties stipulated that:
(1) Mr. Fee was injured in an accident in the course and
scope of his employment as a logger for B & W Logging on
May 2, 2007, on land owned by the Pourciau family in New
Roads, Louisiana; (2) Mr. Fee's average weekly wage at
the time was $750.00, providing the maximum compensation rate
of $478.00; (3) on the date of the accident, B & W
Logging had workers' compensation insurance through
Timberman's, which accepted the claim and paid medical
and indemnity benefits to Mr. Fee until it "went
bankrupt" on September 16, 2015; and (4) no indemnity or
medical benefits have been paid to Mr. Fee since that date.
The issues to be resolved at trial were: (1) whether Southern
Packaging and/or Pineville Forest were Mr. Fee's
statutory employers; (2) the nature (causation) and extent of
Mr. Fee's disability; and (3) whether any penalties or
attorney's fees were owed to Mr. Fee, along with interest
and costs. The parties further agreed that, if either
Southern Packaging or Pineville Forest were found to be Mr.
Fee's statutory employer, it would get the benefit of all
payments made by Timberman's through September 16, 2015.
witnesses were called to testify at trial; instead, the
matter was submitted to the WCJ via depositions and
documentary evidence. Thereafter, the WCJ ruled that Southern
Packaging was Mr. Fee's statutory employer pursuant to
LSA-R.S. 23:1061 A(2), the "two contract theory."
The WCJ concluded that Southern Packaging contracted with the
Pourciau family, via a timber deed, to harvest timber on the
Pourciau land, then contracted with B & W Logging, Mr.
Fee's employer, to perform the work, thus satisfying the
two contract requirement of LSA-R.S. 23:1061 A(2).
Conversely, the WCJ found that Pineville Forest was not Mr.
Fee's statutory employer but, instead, functioned only as
a "middle man" to facilitate the movement of funds
between Southern Packaging and Mr. Fee.
further found Mr. Fee to be permanently and totally disabled
as a result of injuries sustained in the May 2, 2007,
accident. Southern Packaging was ordered to pay permanent and
total disability benefits to Mr. Fee from September 17, 2015,
to the present and continuing at the maximum weekly
compensation rate of $478.00 with four percent judicial
interest. Southern Packaging was further ordered to reimburse
Mr. Fee's out-of-pocket medical expenses and costs in the
amount of $270.22. The WCJ denied Mr. Fee's request for
attorney's fees but awarded costs in his favor and
against Southern Packaging.
judgment in accordance with the WCJ's oral reasons for
ruling was signed on April 25, 2018. Mr. Fee and Southern
Packaging appeal from this judgment. Mr. Fee asserts that the WCJ
erred in finding that Pineville Forest was not his statutory
employer at the time of the May 2, 2007, accident. In its
appeal, Southern Packaging argues that the WCJ erred by going
outside the "four corners" of a contract of sale,
i.e., the timber deed, to find that an obligation to
harvest trees existed and in concluding that this made the
timber deed a contract to perform work. According to Southern
Packaging, this determination resulted in an erroneous
finding that it was Mr. Fee's statutory employer under
the two contract theory set forth in LSA-R.S. 23:1061 A(2).
No appeal has been taken to challenge the WCJ's finding
that Mr. Fee is totally and permanently disabled, the award
of benefits or costs, or the denial of Mr. Fee's request
for attorney's fees.
ultimate determination of whether a principal is a statutory
employer is a question of law for the court to decide.
Mitchell v. Southern Scrap Recycling, L.L.C.,
11-2201 (La.App. 1 Cir. 6/8/12), 93 So.3d 754, 758, writ
denied, 12-1502 (La. 10/12/12), 99 So.3d 47. When
addressing legal issues, the appellate court gives no special
weight to the findings of the WCJ, but exercises its
constitutional duty to review questions of law de
novo, after which it renders judgment on the record.
Louisiana Workers' Compensation Corp. v.
Landry, 11-1973 (La.App. 1 Or. 5/2/12), 92 So.3d 1018,
1021, writ denied, 12-1179 (La. 9/14/12), 99 So.3d
the WCJ's factual findings are subject to the manifest
error standard of review; therefore, in order for a reviewing
court to reverse a WCJ'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
Business SIF, 15-2137, 15-2138 (La. 6/29/16), 194 So.3d
1112, 1123. In applying the manifest error-clearly wrong
standard, the appellate court must determine whether the fact
finder's conclusions are reasonable, not whether the
trier of fact was right or wrong. Guichard Operating Co.,
LLC v. Porche, 15-1942, 15-1943 (La.App. 1 Cir. 1/5/17),
212 So.3d 701, 706. However, where one or more legal errors
on the part of the WCJ interdicts the fact-finding process,
and the record is otherwise complete, the reviewing court
should make an independent de novo review of the
evidence, giving no deference to the WCJ's factual
findings, and render judgment. Truitt v. Temp
Staffers, 04-0590 (La.App. 1 Cir. 4/6/05), 915 So.2d
786, 792-93, writ denied, 05-1162 (La. 6/24/05), 904
party asserting that a statutory employer relationship
existed, Mr. Fee bore the burden of proof at
trial. See Daigle v. McGee Backhoe &
Dozer Service, 08-1183 (La.App. 5 Cir. 4/28/09), 16
So.3d 4, 8, writ denied, 09-1372 (La. 10/2/09), 18
So.3d 113, affirming the trial court's finding that the
plaintiff failed to prove, by a preponderance of evidence,
that the defendant was his statutory employer under the two
doctrine of "statutory employer" is codified in
LSA-R.S. 23:1061. Specifically, LSA-R.S. 23:1061 A(1)
provides that when a " 'principal'... undertakes
to execute any work, which is a part of his trade, business,
or occupation and contracts with any person, in this Section
referred to as the 'contractor', for the execution by
or under the contractor of the whole or any part of the work
undertaken by the principal, the principal, as a statutory
employer, ...shall be liable to pay to any employee employed
in the execution of the work or to his dependent, any
compensation under this Chapter which he would have been
liable to pay if the employee had been immediately employed
by him...." Under LSA-R.S. 23:1061 A(1), "work
shall be considered part of the principal's trade,
business, or occupation if it is an integral part of or
essential to the ability of the principal to generate that
individual principal's goods, products, or
services." See also Labranche v.
Fatty's, LLC, 10-0475 (La.App. 1 Cir. 10/29/10), 48
So.3d 1270, 1272-73.
doctrine of statutory employer was amended in 1997 by La.
Acts 1997, No. 315, § 1 to provide two bases for finding
statutory employment: first, when the principal is in the
middle of two contracts, referred to as the "two
contract theory," see LSA-R.S. 23:1061 A(2); and second,
when there is a written contract recognizing the principal as
the statutory employer, see LSA-R.S. 23:1061 A(3). See
alsoLabranche, 48 So.3d at
1272-73. In the instant case, there were no written contracts
by and between Southern Packaging, Pineville Forest, or B
& W Logging, Mr. Fee's immediate employer. Therefore,
Mr. Fee acknowledges ...