Dull v. Gibbs

• Decision Date: 03 April 1991
• Docket Number: No. 22274-CA,22274-CA
• Citation: 577 So.2d 806
• Parties: Charles DULL, Plaintiff, v. Richard GIBBS d/b/a A.A. Roman Marble and Bath, Defendant.
• Court: Court of Appeal of Louisiana — District of US

Page 806

577 So.2d 806

Charles DULL, Plaintiff, v. Richard GIBBS d/b/a A.A. Roman Marble and Bath, Defendant.

No. 22274-CA.

Court of Appeal of Louisiana, Second Circuit.

April 3, 1991.

Robert A. Booth, Jr., Shreveport, for defendant-appellant.

Patricia A. Miramon, Shreveport, for plaintiff-appellee.

Before MARVIN, LINDSAY and HIGHTOWER, JJ.

HIGHTOWER, Judge.

Defendant, a self-insured employer, appeals an award of worker's compensation benefits, medical expenses, and attorney's fees. For reasons hereinafter expressed, we affirm.

FACTS

On August 22, 1989, plaintiff, Charles Dull, an employee of defendant, Richard Gibbs, d/b/a A.A. Roman Marble and Bath, spilled a chemical on his left ankle while cleaning equipment used in preparing marble. Initially experiencing no sensation of pain, he did not cleanse the affected skin area for several hours. The resulting prolonged exposure produced second and third degree burns, for which plaintiff received treatment at LSU Medical Center in Shreveport.

When defendant declined to pay the medical bills, and after rejection of the recommendation of the worker's compensation office, plaintiff instituted suit. The lower court, following an expedited trial, awarded temporary total disability benefits for five weeks and medical expenses of $376.54. Also, based on a determination that the employer acted arbitrarily and capriciously in failing to satisfy such treatment costs, the trial judge granted plaintiff $750 in attorney's fees. Defendant now appeals, asserting two assignments of error.

DISCUSSION

Attorney's Fees

In one assignment, defendant challenges the finding that his failure to pay medical expenses incurred at LSU Medical Center, a charity hospital, constituted arbitrariness.

Defendant, in testimony, admitted the possibility that the subject injury occurred on the job. Indeed, he agreed that the chemicals used in his business can cause burns such as those suffered. Further, he acknowledged receipt of the medical bills and an intent to pay, but stated that remittance had been delayed "waiting to see what happened here [at trial]."

In brief, however, defendant argues he cannot be held to have acted arbitrarily and capriciously toward plaintiff, who did not actually stand responsible for the bill or experience denial of medical care through delinquency of the account. We disagree.

Failure of a self-insured employer to pay any claim due under the Worker's Compensation Act within sixty days after receipt of written notice, when such failure is found arbitrary, capricious, or without probable cause, shall subject the employer to payment of reasonable attorney's fees. LSA-R.S. 23:1201.2. If asserted defenses are presented in good faith, attorney's fees are not appropriate. Robichaux v. Terrebonne Parish Sch. Bd., 426 So.2d 241 (La.App. 1st Cir.1983).

The furnishing of medical care, establishing a debt between a government-supported hospital and a worker's compensation claimant, entitles the employee or his dependents to seek recovery for those expenses. Marty v. Western Auto Supply Company, 269 So.2d 583 (La.App. 4th Cir.1972). Accord Lanoue v. Century Indemnity Co., 30 So.2d 207 (La.App. 1st Cir.1947), writ denied, (La.1947). Such a rule conforms with LSA-R.S. 46:13, which provides:

Where a patient in any of the state charity hospitals or in any veterans administration hospital in the state comes within the provisions of the employer's liability laws, the superintendent or the director may make appropriate charges for services rendered to the patient, in accordance with charges of other first class hospitals, including physicians' and surgeons' fees; and the patient, the employer of the patient, and the compensation insurer of the employer shall be liable therefor in solido.

(Emphasis added).

Plaintiff introduced invoices, addressed to him from LSU Medical Center, designating him as the "guarantor" of the indebtedness. Nothing of record supports defendant's assertion that the medical expenses simply posed a problem for resolution between the employer and the hospital. Instead, the evidence adequately demonstrates that defendant's declination to pay for the treatment arose from neither a lack of notice of the claim nor a good faith defense that a compensable accident had not occurred.

The lower court, determining that defendant failed to propose a defense having a sound basis in fact or in law, properly found defendant arbitrary and capricious and ordered payment of attorney's fees. See LeBaron v. Louisiana Pacific Corp., 434 So.2d 496 (La.App. 2d Cir.1983), writ denied, 440 So.2d 758 (La.1983); Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046 (La.App. 2d Cir.1980), writ denied, 385 So.2d 793 (La.1980). Accordingly, this assignment is without merit.

Duration of Disability

Citing lack of substantiating medical evidence, defendant next complains that the trial judge arbitrarily set the period of disability at five weeks.

A worker's compensation claimant, of course, bears the burden of proving the nature and scope of his disability to a legal certainty and by a preponderance of the evidence. Jaeckle v. Dresser Industries, Inc., 457 So.2d 646 (La.1984), on remand, 465 So.2d 65 (La.App. 1st Cir.1985); Daney v. Argonaut Ins. Co., 421 So.2d 331 (La.App. 1st Cir.1982). Whether or not he has met that burden must be determined by examining the totality of the evidence, medical and lay. Crawford v. Al Smith P. & H. Service, Inc., 352 So.2d 669 (La.1977); Chiasson v. LaFourche Parish Counsel, 449 So.2d 110 (La.App. 1st Cir.1984). The trial judge, having much discretion in determining the length of benefits, will be reversed only if clearly wrong. Lewis v. Piccadilly, Inc., 489 So.2d 984 (La.App. 1st Cir.1986). See...