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Richard v. Quality Construction and Production, LLC

Court of Appeals of Louisiana, Third Circuit

June 5, 2019

STEVE RICHARD
v.
QUALITY CONSTRUCTION AND PRODUCTION, LLC and ZURICH AMERICAN INSURANCE COMPANY

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 4 PARISH OF VERMILION, NO. 12-08721 SHARON MORROW, WORKERS' COMPENSATION JUDGE

          Elizabeth Smyth Rambin Comeaux, Stephens & Grace One Lakeway CenterCOUNSEL FOR DEFENDANTS/APPELLEES: Quality Construction and Production, LLC Zurich Amercian Insurance Company

          Jennifer B. Valois Janice H. Barber Barber Law Firm COUNSEL FOR PLAINTIFF/APPELLANT: Steve Richard

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Phyllis M. Keaty, Judges.

          JOHN D. SAUNDERS JUDGE

         This is a workers' compensation case wherein a claimant was involved in a one-vehicle accident. The employer raised the defense of intoxication. The WCJ found that the employee was intoxicated at the time of the accident and forfeited his benefits under La.R.S. 23:1081(1)(b), but that the employee was entitled to a penalty and an award for attorney's fees as the employer violated La.R.S. 1081(13) by failing to pay for the claimant's emergency medical expenses. Both paries raise issues on appeal.

         FACTUAL AND PROCEDURAL HISTORY:

         Claimant, Steve Richard, Jr. (Richard) was employed by Quality Construction and Production, LLC (Quality) as a pipeline technician. Richard worked at a secluded oil field job site in North Dakota. On August 9, 2012, Richard was involved in a one-vehicle accident while allegedly in the course and scope of his employment.

         Questions arose as to whether Richard was intoxicated and whether that intoxication caused the injuries he sustained in the accident. As such, Richard filed a 1008 disputed claim for compensation. Thereafter, the matter proceeded to a trial on the merits. The workers' compensation judge (WCJ) ruled that Richard was intoxicated at the time of the accident. Thus, the WCJ found in favor of Quality in that Richard forfeited workers' compensation benefits pursuant to La.R.S. 23:1081(5), intoxication by use of a nonprescribed controlled substance. The WCJ's judgment also awarded Richard reimbursement for emergency medical expenses under La.R.S. 23:1081(13), a penalty of $2, 000 for Quality's failure to pay Richard's emergency medical expenses, and attorney's fees.

         Richard appeals this judgment, alleging four assignments of error. Quality answers the appeal and raises some ancillary matters.

         ASSIGNMENTS OF ERROR:

1. The trial court was manifestly erroneous and clearly wrong in entering judgment in favor of the employer/insurer based on the affirmative defense of La. R.S. 23:1081(5) intoxication by prescription drug use; a defense that Appellees never pled and that was not listed as an issue to be litigated in Appellees Pre-Trial Statement; La. C.C.P. Art. 1005 requires all affirmative defenses to be pled and the workers' compensation Hearing Rules, L.A.C. 40: Chapter 62, Subchapter A § 6201 states that: "Only those issues listed in the pretrial statements shall be litigated at trial. No new issues shall be raised except by written order of the judge for good cause or upon mutual agreement of the parties."
2. The trial court was manifestly erroneous in denying Richard's workers' compensation benefits based upon incompetent evidence of the presence of fentanyl in Richard's urine, in the form of an unconfirmed drug test in violation of La. R.S. 23:1081(9)(e).
3. The trial court committed manifest error in relying upon statements made by Richard after he received IV fentanyl administered by emergency responders; Richard suffered paralysis in the accident and was in severe pain, comments made immediately after the accident do not rise to the level of competent evidence.
4. The trial court abused its discretion in allowing Appellees toxicology expert, Dr. William George, to testify outside the scope of his report on issues not pled, including the presence of fentanyl in Richard's urine, in violation of La. C.C.P. Art. 1425; the trial court committed manifest error and was clearly wrong in relying upon the testimony of Dr. William George, Appellees toxicologist.

         ASSIGNMENT OF ERROR NUMBER ONE:

         Richard's first assignment of error is that the WCJ was manifestly erroneous and clearly wrong in entering judgment in favor of the employer/insurer based on the affirmative defense of intoxication by prescription drug use because Quality never pled this defense, it was not listed as an issue to be litigated in the pre-trial statement, and the defense must be pled or in the pre-trial statement to be litigated. We find no merit to this assignment of error.

A WCJ is vested with discretion in conducting trials in a manner which he decides is consistent with the fair administration of justice. Russell v. H & H Metal Contractors, Inc., 11-27 ...

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