FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 4
PARISH OF VERMILION, NO. 12-08721 SHARON MORROW, WORKERS'
Elizabeth Smyth Rambin Comeaux, Stephens & Grace One
Lakeway CenterCOUNSEL FOR DEFENDANTS/APPELLEES: Quality
Construction and Production, LLC Zurich Amercian Insurance
Jennifer B. Valois Janice H. Barber Barber Law Firm COUNSEL
FOR PLAINTIFF/APPELLANT: Steve Richard
composed of Ulysses Gene Thibodeaux, Chief Judge, John D.
Saunders, and Phyllis M. Keaty, Judges.
D. SAUNDERS JUDGE
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.
AND PROCEDURAL HISTORY:
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.
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
appeals this judgment, alleging four assignments of error.
Quality answers the appeal and raises some ancillary matters.
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.
OF ERROR NUMBER ONE:
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 ...