Issa v. Ll & G Construction, Inc.

• Decision Date: 28 March 2003
• Docket Number: No. 2002 CA 1215.,2002 CA 1215.
• Citation: 844 So.2d 912
• Parties: Nicolas H. ISSA v. LL & G CONSTRUCTION, INC.
• Court: Court of Appeal of Louisiana — District of US

844 So.2d 912

Nicolas H. ISSA v. LL & G CONSTRUCTION, INC.

No. 2002 CA 1215.

Court of Appeal of Louisiana, First Circuit.

March 28, 2003.

Rehearing Denied May 30, 2003.

James L. Maughan, Baton Rouge, for Plaintiff/Appellant, Nicolas H. Issa.

Charles J. Duhe, Jr., B. Scott Cowart, Baton Rouge, for Defendant/Appellee, LL & G Construction, Inc.

Before: FOIL, McCLENDON, and KLINE,¹ JJ.

McCLENDON, J.

This appeal arises from a workers' compensation proceeding in which the plaintiff/appellant was granted some relief, though less than he sought. On appeal, we reverse and vacate the judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Nicolas Issa, was involved in two accidents, while in the course and scope of his employment with LL & G Construction, Inc. ("LL & G"). The first accident occurred on September 13, 2000 and the second on October 24, 2000. Following the September accident, wherein Mr. Issa injured his back, he returned to work at light duty. Subsequently, in October, he was struck on the head by a "clod of dirt." Thereafter, Mr. Issa complained of worsened low back pain, neck pain, facial injuries, and an inability to breathe through his nose.

On December 19, 2000, when LL & G refused to authorize treatment for plaintiff by an ear, nose, and throat specialist, Mr. Issa filed a complaint with the Office of Workers' Compensation ("OWC"), seeking benefits for the October 24, 2000 accident and alleged injuries therefrom to his back, neck, and face. Thereafter, on April 30, 2001, Mr. Issa amended his petition to seek benefits for the September 13, 2000 accident, stating, "The claimant is unable to separate which injuries were caused by each accident and will rely upon health care providers for this information." Following a December 6, 2001 trial, judgment was rendered by the OWC judge, as follows:

1. The C[laimant] has proved by a preponderance of the evidence that an accident occurred in the course and scope of employment on September 11, 2000.

2. The Claimant has proved by a preponderance of the evidence that an accident occurred in the course and scope of employment on October 24, 2000.

3. Claimant has proved an inability to earn ninety percent of his pre-accident wages from October 24, 2000 to January 20[,] 2001. Supplemental earnings benefits are owed at the temporary total disability rate for this period of time.

4. Average weekly wage is determined to be [$]464.91 with a corresponding temporary total disability compensation rate of [$]310.10.

5. Medical expenses related to the lumbar and cervical complaints are to be paid by the defendant. Defendant is entitled to credit for any expenses already paid.

6. Medical expenses for the facial and oral problems are not related to the accident.

7. Claimant is found not to be disabled after January 20, 2001. No indemnity benefits are owed after January 20, 2001.

8. The claimant is found NOT to have violated La. R.S. 23:1208. The misrepresentations were not made for the purpose of obtaining benefits.

9. The claim for attorney fees and penalties is denied.

Mr. Issa appealed this judgment and on appeal urges the following assignments of error:

1. The [OWC judge] erred in failing to find that the Appellant was entitled to Supplemental Earnings Benefits after January 20, 2001.

2. The [OWC judge] erred in failing to find that the Appellant's nasal injuries were compensable.

3. The [OWC judge] erred in failing to award penalties and attorney's fees for the Appellee's arbitrary and capricious failure to pay benefits in accordance with the law.

LL & G filed an answer to the appeal, seeking reversal of the OWC judge's determinations. LL & G alleged the OWC erred in holding that plaintiff was entitled to supplemental earnings benefits, erred as to the amount of plaintiff's average weekly wage, and, erred in holding that plaintiff did not violate LSA—R.S. 23:1208.

LAW AND ANALYSIS

An employee who receives personal injury by accident arising out of and in the course of his employment shall be paid compensation, if not otherwise eliminated from by the workers' compensation provisions, by his employer in the amounts, on the conditions, and as designated by LSA-R.S. 23:1021 et seq. See LSA—R.S. 23:1031. "Accident" means an "unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." LSA—R.S. 23:1021(1).

The employee who claims a right to collect workers' compensation benefits has the burden of proving a work-related accident by a preponderance of the evidence. Bolton v. B E & K Construction, 2001-0486, p. 8 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35; Catchot v. RAMCO Construction, 2000-1922, pp. 2-3 (La.App. 1 Cir. 11/14/01), 818 So.2d 105, 107, citing Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992). Further, a claimant must establish a causal link between the work-related accident and his injury. Rhodes v. Terrebonne Parish Sheriff, 2001-2279, p. 3 (La.App. 1 Cir. 6/21/02), 822 So.2d 114, 116.

In the instant case, there was no dispute that plaintiff suffered two accidents in the course and scope of his employment with the defendant. The issue contested was the extent of plaintiff's disability and the causal connection between the accidents and the alleged injuries.

The OWC judge found that Mr. Issa had established that he suffered a compensable injury and was unable to earn ninety percent of his pre-accident wages from October 24, 2000 until January 20, 2001, awarding supplemental earnings benefits at the temporary total disability rate. The oral reasons given by the OWC judge for this ruling were as follows:

Mr. Issa testified that he was injured in two separate accidents, one on September 11, 2000, and one October 24, 2000. Based on the testimony of Nicolas Issa, Pierre Issa, Tufic Issa, Henry Hage and Edward Levert there doesn't seem to be any real dispute to the fact that an accident occurred on September 11, 2000 in which Mr. Issa was pushing a rod and sustained an injury to his back. There also doesn't seem to be any dispute that an accident occurred on October 24th of 2000 where some dirt was inadvertently dropped on Mr. Issa's head resulting in increased back pain. The big question centers around Mr. Issa's ability to work.

Based on the medical records that I have and the testimony that was given at trial I don't think that there's any doubt that Mr. Issa was injured. He saw Dr. Davis, he saw Dr. Sweeney, he saw Dr. Nicholson, and he saw Dr. Horace Mitchell. At various times he was taken off work and put back on work by Dr. Davis and Dr. Sweeney. Dr. Nicholson had him completely disabled at some time and then released him to light duty. He eventually saw Dr. Horace Mitchell and Dr. Mitchell has released him to light duty.

The medical records are fairly clear as to the fact that Mr. Issa had sustained an injury to his back and that this injury resulted in his inability to return to the same type of work that he was doing which basically was heavy manual labor. The medical records also show that there's no doubt that Mr. Issa is capable of doing some type of work; light duty has been advised by two of the doctors, Dr. Nicholson and Dr. Horace Mitchell. There's no doubt in my mind that Mr. Issa is capable of returning to work in some capacity. The latest medical report from Dr. Mitchell state[d] that Mr. Issa was capable of returning to light duty. Dr. Nicholson also returned him to light duty in January of 2001, and Mr. Issa has not returned to work as of this time.

Based on the testimony that was taken and the medical records that were provided to me, Nicolas Issa has proven by [a] preponderance of the evidence that he was involved in two accidents while in the course and scope of his employment with LL G Construction. These accidents resulted in a disability and that disability lasted until January 20th of 2001. At that time based on the medical records that have been provided to me and also based on the video tape that was shown, I find that Nicolas Issa was capable of engaging in gainful employment after January 20, 2001.

There was a lot of testimony about Mr. Issa's problem with the language barrier, but it's obvious from his medical records, the video tape that was shown and the testimony that was given that he is capable of doing some work. Based on the wage records that were provided to me after January 20, 2001, I don't think that Mr. Issa has proved an inability to earn 90% of his pre-accident wages. Before January 20th I think there was proof of that, but after that I don't think that there is. So therefore, I'm finding that Mr. Issa was disabled until January 20, 2001, and he's owed supplemental earnings benefits up until that time at the temporary total disability rate.

The other question was what was the average weekly wage. I think based on the medical evidence and Mr. Issa's own testimony he could return to work after the September 11, 2000 accident and he in fact did return to work. He worked for a period of time and then after the October 24th accident he was disabled. Therefore, I think the correct way to calculate the average weekly wage is based on the four full weeks prior to the October 24, 2000 accident. I calculated those wages and came up with an average weekly wage of $464.91, and a corresponding temporary total disability rate of $310.10. So therefore, I'm finding that he's entitled to disability payments at the rate of $310.10.

The lumbar and cervical complaints, the medical expenses for those complaints are to be paid by the defendant. The defendant is entitled to a credit for any of those expenses which they have already paid. The medical expenses for the facial and oral problems I don't find are related to the accident. I don't think there's enough proof provided that the...