Boone v. Mid-State Marketing
| Decision Date | 03 March 2004 |
| Docket Number | No. 2003-1032.,2003-1032. |
| Citation | 867 So.2d 91 |
| Parties | Floyd BOONE, Jr. v. MID-STATE MARKETING. |
| Court | Court of Appeal of Louisiana — District of US |
Christopher Jude Roy, Jr., Alexandria, LA, for Plaintiff/Appellee, Floyd Boone, Jr.
Douglas Jay Cochran, McKay, Williamson, Lutgring & Cochran, Baton Rouge, LA, for Defendant/Appellant, Mid-State Marketing.
Court composed of ULYSSES GENE THIBODEAUX, C.J., MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
In this workers' compensation case, the defendant, Mid-State Marketing (MSM), appeals the judgment of the Office of Workers' Compensation (OWC) finding that the plaintiff, Floyd Boone, Jr., proved that he was temporarily and totally disabled as a result of his work-related accident and that MSM's handling of Mr. Boone's claim was arbitrary, capricious and unreasonable. The OWC awarded Mr. Boone several items of compensation and penalties, including temporary total disability benefits (TTD). We agree with the OWC and affirm the judgment. We also award an additional $2,500.00 in attorney fees for work done on appeal.
The issues on appeal are:
(1) Was the workers' compensation judge (WCJ) manifestly erroneous in deciding that Mr. Boone was not foreclosed from obtaining relief because of an alleged violation of La.R.S. 23:1208(A);
(2) Did Mr. Boone's failure to plead attorney fees and penalties in the answer foreclose an award of attorney fees and penalties;
(3) Was the WCJ manifestly erroneous in deciding that Mr. Boone was entitled to temporary total disability benefits; and,
(4) Was the WCJ manifestly erroneous in finding that Mr. Boone suffered a mental injury which was caused by his work-place accident.
Mr. Boone was employed as a delivery man and a route salesman by Mid-State Marketing, a Borden's milk distributor. On July 25, 2001, he was delivering a five gallon bag of milk to a nursing home and placing it on a shelf when he felt something "pop" in his back.
He testified that he informed Terry Smith, a supervisor, but didn't complete an accident report. On August 9, 2001, Mr. Boone reported the accident to his immediate supervisor, Mr. Fitzhugh Crockett. An accident report was filled out and his employer sent him to Louisiana Occupational Health Services (LOHS), where he saw Dr. Brian Jobe. On August 13, Dr. Jobe diagnosed a back strain with some radiculopathy, but allowed Mr. Boone to continue to work.
Mr. Boone testified that he subsequently asked his employer to see another doctor of his choice. Mr. Crockett told Mr. Boone he could do so, but he would have to use his own health insurance since he was not going back to LOHS. Mr. Boone proceeded to use his own health insurance and went to see Dr. Stephen Downs, his family doctor, in October and November of 2001.
On the October and November visits, Mr. Boone reported to Dr. Downs that he had low back pain and groin pain. Mr. Boone was diagnosed with a right groin strain. Nevertheless, he continued to work for the employer.
On February 5, 2002, Mr. Boone returned to LOHS and was examined by Dr. Jobe. The purpose of the examination was to obtain a commercial drivers license (CDL). Mr. Boone completed and signed a questionnaire form for Dr. Jobe. He testified that all of the information he provided to Dr. Jobe may not have been true because he wanted to pass the examination to get the CDL. He indicated on the signed form that he had suffered no illness or injury in the last five years and that he had not suffered any spinal injury or disease or chronic low back pain.
On March 5, 2002, Mr. Boone went to the Rapides Regional Medical Center (RRMC) for treatment. He testified that the pain had worsened to the extent that he had to seek care for it. In those records, he indicated that he had a fall one month earlier and continued to have low back pain with pain radiating down his left leg. Mr. Boone testified that he might have indicated that he had a fall only as a means to obtain treatment.
After the RRMC visit, Mr. Boone visited Dr. Downs again. Dr. Downs ordered an MRI on his low back, which was positive for a ruptured lumbar disk on the left side. Once Dr. Downs knew that Boone had a ruptured disc, he gave work restrictions to Boone to not lift anything over ten pounds. Mr. Boone brought those restrictions to the attention of his employer, who informed him that there were no light-duty jobs available, and he would no longer be able to work. Mr. Boone did not return to work.
On March 15, 2002, Mr. Boone contacted Louisiana Restaurant Association Self Insurers Fund (LRASIF), MSM's insurer, to see whether it would pay workers' compensation benefits since Dr. Wilson stated that he could no longer perform his usual work activities. LRASIF did not pay Mr. Boone indemnity benefits and did not authorize or pay for his medical treatment. Mr. Boone file a disputed claim for compensation with the Office of Workers' Compensation (OWC) on May 23, 2002 when his claims were denied by LRASIF.
After the MRI, Dr. Downs scheduled Mr. Boone to see Dr. Katz for epidural steroid injections. After the epidural steroid injections failed, Mr. Boone was referred to Dr. Andrew Wilson, a local neurosurgeon, for further treatment. On April 24, 2002, Mr. Boone underwent surgery by Dr. Wilson to repair the ruptured disk.
The case was heard before the OWC on January 16, 2002. On March 11, 2003, the WCJ issued judgment in favor of Mr. Boone on all issues. He also awarded penalties and attorney fees finding LRA-SIF's conduct arbitrary and capricious.
The WCJ awarded Mr. Boone TTD benefits in the amount of $352.77, mileage expenses of $215.36 and reimbursement of all out-of-pocket medical expenses. He ordered that Mr. Boone be allowed to see a neurosurgeon, namely Dr. Andrew Wilson, and a psychologist of his choice and that an FCE be performed on Mr. Boone. He also awarded the following penalties: a $2,000.00 penalty for failure to pay his out-of-pocket medical expenses; a $2,000.00 penalty for failure to pay indemnity benefits; a $2,000.00 penalty for failure to timely pay mileage benefits; a $2,000.00 penalty for failure to provide vocational rehabilitation; a $2,000.00 penalty for failure to authorize a treating physician of Mr. Boone's choice; a $2,000.00 penalty for failure to provide treatment and a physician for psychological treatment. He awarded attorney fees of $10,000.00.
The LRASIF appealed. Mr. Boone answered the appeal seeking additional penalties and attorney fees for the appeal of his case and for an award of cost for the medical depositions and stenographer costs submitted at trial.
LAW AND DISCUSSION
"Factual findings in a workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review." Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 7(La.7/1/97), 696 So.2d 551, 556. In applying the manifest error-clearly wrong standard, the appellate court must determine "not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one." Stobart v. State, Dep't of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Id. Accordingly, if the trier of fact's "findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
The LRASIF argues that Mr. Boone made inconsistent statements to medical personnel that amounted to fraud bringing him under the ambit of La.R.S. 23:1208.
Louisiana Revised Statutes 23:1208(A) provides, "It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation." Pursuant to Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95), 660 So.2d 7, there must be a false statement or statements willfully made for the purpose of obtaining workers' compensation benefits.
Whether Mr. Boone made false statements for the purpose of obtaining workers' compensation benefits is a disputed issue in this case. However, fraud/misrepresentation was not plead by the defendant under La.Code Civ.P. art. 1005, which states: "the answer shall set forth affirmatively... fraud ... and any other matter constituting an affirmative defense." Paragraph 12 of the defendant's answer only addressed set-offs and credits; it did not mention misrepresentation or fraud.
Furthermore, the record discloses that the defendant specifically stated that "a 1208 has not been asserted." This statement amounted to a judicial admission. See La.Civ.Code. art. 1853. Succession of Poland, 34,291, p. 4 (La.App. 2 Cir. 4/4/01), 784 So.2d 701, 704.
Inasmuch as the defendant did not address the issue of fraud/misrepresentation in its answer and stated at the beginning of the trial that it was not asserting this affirmative defense it is foreclosed from arguing the merits of this defense.
The LRASIF asserts that Mr. Boone did not specifically allege attorney fees and penalties in his claim for compensation; thus, he should not have been awarded them. The defendant claims that statutory penalties and attorney fees are items of special damages which must be specifically alleged.
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