95 0105 La.App. 1 Cir. 10/6/95, Triche v. Regional Elec. & Const., Inc.

• Decision Date: 06 October 1995
• Citation: 671 So.2d 425
• Parties: 95 0105 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 425

671 So.2d 425

95 0105 La.App. 1 Cir. 10/6/95

Scottie A. TRICHE v. REGIONAL ELECTRIC & CONSTRUCTION, INC.

No. 95 CA 0105.

Court of Appeal of Louisiana First Circuit.

Oct. 6, 1995.

Keith J. Labat, Thibodaux, for Plaintiff/Appellee Scottie A. Triche.

David K. Johnson, Baton Rouge, for Defendant/Appellant, Regional Electric & Construction, Inc.

Before CARTER, PITCHER and CRAIN ¹, JJ.

[95 0105 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal from a judgment of the Office of Worker's Compensation in an action for temporary total disability benefits.

FACTS

Prior to March 12, 1993, petitioner, Scottie A. Triche, was employed by defendant, Regional Electric and Construction, Inc. (Regional), as an electrician's helper. On that date, petitioner was in the course and scope of his employment with Regional and was operating a 1981 Dodge truck, owned by Regional, when the vehicle was struck from the rear by an automobile owned and operated by David Delaune. The Delaune vehicle was insured by Allstate Insurance Company (Allstate). As a result of this automobile accident, Triche sustained personal injuries.

Following the accident, Triche sought and received medical treatment for his injuries. The medical treatment was authorized and coordinated by Regional, but Regional did not pay for any of the medical treatment. ² Nor did Regional pay Triche weekly worker's compensation. Gary Rebstock, the president of Regional, erroneously believed that, because Triche's injuries resulted from an automobile accident, the worker's compensation insurer did not have to be notified of Triche's accident or injuries. As a result, Regional did not notify its worker's compensation insurer, Louisiana Worker's Compensation Corporation (LWCC) of the injuries Triche sustained. Rebstock also assumed that the liability insurer of the tortfeasor would be responsible for all any and all losses Triche suffered, and Rebstock assisted Triche in submitting claims to Allstate for proper payment.

By August, 1993, payment for the medical expenses from Allstate was not forthcoming, and Triche made demand upon Regional for the commencement of worker's compensation benefits. On September 9, 1993, Triche filed a Disputed Claim for Compensation with the Office of Worker's Compensation, indicating that, because of the injuries he sustained in the automobile accident, he is unable to work. Triche also filed [95 0105 La.App. 1 Cir. 3] a petition, requesting worker's compensation benefits and statutory penalties for Regional's arbitrary and capricious failure to pay benefits.

On October 1, 1993, Triche entered into a "Restricted Release with Full Reservation of Rights" with Delaune and Allstate, settling his claim against them for $10,000.00. ³ Prior to settling his tort claim, Triche did not obtain the consent or approval of either Regional or LWCC.

Thereafter, on September 21, 1994, Triche's worker's compensation claim proceeded to a trial on the merits. The hearing officer rendered judgment in favor of Triche and against Regional and LWCC. The hearing officer determined that Triche was temporarily totally disabled and that he is entitled to two-thirds of his stipulated wages of $5.00 per hour for a forty-hour work week, ⁴ together with all past, present, and future medical expenses. The hearing officer also awarded Triche penalties in accordance with LSA-R.S. 23:1201 and attorney's fees of $2,500.00 in accordance with LSA-R.S. 23:1201.2. Regional and LWCC were cast for all costs. ⁵

From this adverse judgment, Regional and LWCC appeal, ⁶ assigning the following specifications of error:

1. The trial court was manifestly erroneous in its determination that claimant was entitled to temporary total disability benefits and/or medical benefits.

2. Assuming claimant proved his entitlement to benefits, the trial court was manifestly erroneous in its determination that claimant did not forfeit his benefits due to the settlement of his claim with the tortfeasor [95 0105 La.App. 1 Cir. 4] without notice to or approval of the employer or its compensation insurer.

3. The trial court was manifestly erroneous in its assessment of penalties and attorney's fees.

ENTITLEMENT TO TEMPORARY TOTAL DISABILITY BENEFITS

In order to recover worker's compensation benefits, a claimant must show that he received personal injury by accident arising out of and in the course and scope of his employment and that said injury necessitated medical treatment and/or rendered the employee disabled. Polk v. Babineaux's Plumbing, Inc., 628 So.2d 71, 74 (La.App. 3rd Cir.1993); Alfred v. Mid-South Machine, Inc., 594 So.2d 937, 939 (La.App. 3rd Cir.1992). Pursuant to LSA-R.S. 23:1221(1)(c), a claimant has the burden of proving his temporary disability by clear and convincing evidence. ⁷ Penn v. Wal-Mart Stores, Inc., 93-1262, p. 3 (La.App. 3rd Cir. 6/15/94), 638 So.2d 1123, 1126, writ denied, 94-1835 (La. 10/28/94), 644 So.2d 651; Polk v. Babineaux's Plumbing, Inc., 628 So.2d at 74. In the absence of clear and convincing evidence that the employee is physically unable to engage in any employment, the claimant's demand for temporary total compensation benefits must fail. Tanner v. International Maintenance Corporation, 602 So.2d 1133, 1137 (La.App. 1st Cir.1992).

The issue of disability within the framework of the worker's compensation law is a legal rather than a purely medical determination. Pollock v. Louisiana Insurance Guaranty Association, 587 So.2d 823, 825 (La.App. 3rd Cir.1991). The [95 0105 La.App. 1 Cir. 5] issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. Taylor v. Louisiana-Pacific Corporation, 602 So.2d 48, 51 (La.App. 3rd Cir.), writs denied, 606 So.2d 541, 542 (La.1992). The hearing officer is afforded great latitude in making credibility determinations and in weighing testimony. Harris v. Bronco Construction Company, 93-2139, p. 4 (La.App. 1st Cir. 10/7/94), 644 So.2d 805, 807, writ denied, 94-2740 (La. 1/6/95), 648 So.2d 931. The determination of an expert's credibility is a factual question subject to the manifest error/clearly wrong standard of review. Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1277 (La.1991); Harris v. Bronco Construction Company, 644 So.2d at 807; Cheramie v. Horst, 93-1168, p. 5 (La.App. 1st Cir. 5/20/94), 637 So.2d 720, 723. Moreover, after weighing and evaluating all of the evidence, the fact finder is free to accept or reject the opinions expressed by the experts. Harris v. Bronco Construction Company, 644 So.2d at 807; Hoyt v. State Farm Mutual Automobile Insurance Company, 623 So.2d 651, 659 (La.App. 1st Cir.), writ denied, 629 So.2d 1179 (La.1993).

The question of whether the claimant is entitled to temporary total disability benefits is ultimately a question of fact, and the trial court's resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless clearly wrong. Polk v. Babineaux's Plumbing, Inc., 628 So.2d at 74; Taylor v. Louisiana-Pacific Corporation, 602 So.2d at 51. Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. Shelton v. Wall, 614 So.2d 828, 832 (La.App. 2nd Cir.1993). When the trier of fact's findings are reasonable in light of the entire record, an appellate court may not reverse a choice between two permissible views of the evidence. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Shelton v. Wall, 614 So.2d at 832. The issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one in view of the record in its entirety. Stobart v. State, Department of Transportation and [95 0105 La.App. 1 Cir. 6] Development, 617 So.2d at 882; Harris v. Bronco Construction Company, 644 So.2d at 807.

In the instant case, the parties stipulated that Triche was in the course and scope of his employment with Regional when he was involved in the automobile accident with Delaune.

Scottie Triche testified that he injured his neck, left side, and back as a result of the automobile accident. He was taken by ambulance to the emergency room and was discharged shortly thereafter. Triche was then treated by numerous physicians, including orthopedic surgeons, chiropractors, and therapists. Triche testified that he has been unable to work since the date of the accident because he is in constant pain.

According to the medical reports and records introduced at the trial, Triche was transported from the accident site to St. Anne General Hospital, where x-rays of his cervical spine were taken. Thereafter, Triche was treated by Drs. Mike Marcello and S. Morris, who diagnosed a cervical strain and recommended physical therapy. Triche underwent physical therapy at South Lafourche Rehabilitation Services, the Behrman Chiropractic Clinic, and Family Chiropractic Center sporadically between March, 1993 and June, 1994. Triche also received treatment at Orthopaedic Associates for his complaints of pain. Dr. William H. Kinnard, an orthopedist with Houma Orthopedic Clinic, examined Triche in June, 1993. At that time, Dr. Kinnard determined that Triche showed tenderness in his neck and shoulder area and recommended that Triche undergo further diagnostic tests. Dr. Kinnard continued to treat Triche until August, 1993. An MRI of Triche's left shoulder was performed in June of 1993 at Terrebonne General Hospital, which revealed normal results.

Dr. Maria A. Palmer, a neurologist, testified via deposition. Dr. Palmer examined Triche on October 5, 1993, and observed tenderness of the left shoulder, limited lateral flexion on the right, muscle spasms in his neck and shoulder, and some sensory loss in his left hand. Dr. Palmer diagnosed that...