Lyons v. Bechtel Corp.

• Decision Date: 27 December 2000
• Docket Number: No. 00-00364.,00-00364.
• Parties: James LYONS v. BECHTEL CORPORATION and AIU North American, Inc.
• Court: Court of Appeal of Louisiana — District of US

788 So.2d 34

James LYONS v. BECHTEL CORPORATION and AIU North American, Inc.

No. 00-00364.

Court of Appeal of Louisiana, Third Circuit.

December 27, 2000.

Writ Denied March 23, 2001.

COPYRIGHT MATERIAL OMITTED

Kevin A. Marks, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, Counsel for Plaintiff-Appellant.

Kevin L. Camel, Cox, Cox, & Filo, Lake Charles, LA, Counsel for Defendants-Appellants.

Court composed of Chief Judge DOUCET, YELVERTON, and SAUNDERS, Judges.

SAUNDERS, Judge.

The Appellant, James Lyons, brought suit against his employer, Bechtel, and its insurer, AIU North American, Inc. (AIU), on October 27, 1998, seeking disability payments, reimbursement of medical expenses, penalties, and attorney fees. After trial on the merits, the workers' compensation judge (WCJ) concluded that Mr. Lyons had proven that he was in a work accident, but had not met his burden of proof in establishing that his injuries were caused by that work accident. Mr. Lyons' demands were therefore denied.

On appeal, this court holds that the WCJ erred in finding that Mr. Lyons did not prove his injuries were work-related by a preponderance of the evidence. This court further holds that the WCJ did not err in failing to award penalties and attorney fees against Bechtel and AIU, the Appellees, for their refusal to provide medical treatment to Appellant following his September 1998 accident. Finally, the court holds that the WCJ did not err in failing to award penalties and attorney fees against the Appellees for the termination of the Appellant's weekly indemnity benefits.

FACTS

Mr. Lyons began working for Bechtel Corporation on August 27, 1998. Bechtel hired Mr. Lyons to operate a 98 Linkbelt clam bucket at its work site in Merida, Mexico. The operations in Merida involved the laying of approximately 500 miles of pipeline. For his labor, Mr. Lyons testified that he was to be paid $8,100 a month. This amount included a $2,400 per month allowance for living expenses while in Mexico.

Upon arriving in Merida, Mexico, Bechtel assigned Mr. Lyons to operate a hydraulic backhoe rather than a 98 Linkbelt. Mr. Lyons' main task was to keep the ditch where the pipe was to be laid free of debris, rocks, and water. On September 23, 1998, Mr. Lyons decided to ride the bus, used to transport the Mexican workers on the site, to the crew working behind him. Mr. Lyons testified that he intended to aid the other crew in covering the ditch for the night. When the bus stopped to pick up the Mexican workers, Mr. Lyons testified that he honked his horn and told the workers to wait for him. Mr. Lyons testified that he grabbed his lunch bucket, and he proceeded to jump the ditch. Unfortunately, Mr. Lyons lost his footing and fell into the ditch. Mr. Lyons testified that he hit the wall of the ditch and slid down it. He also testified that he stuck out his hand to break his fall causing his wrist to jam, and he struck his elbow and his neck on the bank of the wall. After his fall, his Mexican helper, Amando, and several other Mexican workers pulled him out of the ditch. Mr. Lyons then boarded the bus. Upon arriving at the worksite, Mr. Lyons testified that he told his foreman, Brian Brecky, about the accident. Mr. Lyons told Mr. Brecky that he had fallen in the ditch and had shown him the scratches and bruises. Mr. Lyons testified that nothing was done by Mr. Brecky at that time and that he had not asked for medical treatment. Mr. Lyons also testified, in his deposition, that he had shown both Mr. Brecky and Randy Terry, the foreman of the crew that lowered pipe behind Mr. Lyon's crew, his injuries on his buttocks, lower back and wrist, sometime after the fall. To show Mr. Brecky and Mr. Terry the bruises on his buttocks, Mr. Lyons testified that he had pulled his pants down, and they had responded by saying that they did not want to see this part of his anatomy.

Thereafter, Mr. Lyons continued to work. Mr. Lyons' accident occurred on a Tuesday, and he testified that he worked until Saturday of that week. During that time, Mr. Lyons testified that he was unable to perform all of the tasks he normally performed. He testified that he told Mr. Brecky that he did not think he was capable of running the equipment, but that he would try. Mr. Lyons testified that in response, Mr. Brecky told him that he could let Amando, who was in training, operate the equipment. Since Amando was not present that morning, Mr. Lyons operated the machine. Mr. Lyons testified that despite the fact he continued to operate the equipment after the accident, he experienced discomfort from sitting in the seat for a long period of time because of the manner in which the machine jarred him. Mr. Lyons stated that he could not be on the machine longer than three or four hours without having to get up and walk. Mr. Lyons testified while he operated the machine, his lower back and neck hurt. During the period between Tuesday, September 23, 1998, and Saturday, September 27, 1998, none of Bechtel's supervisors offered to take him to the doctor or to provide any medical treatment.

On Saturday, Mr. Lyons testified that on the way back to the motel in Piste, Mexico, Mr. Brecky told him that Mr. Terry was trying to "get [him] run off." After Mr. Terry cleaned up in his motel room, he went to the restaurant area where Mr. Terry and Mr. Brecky were sitting. Mr. Lyons joined them and began discussing work. During the course of that conversation, Mr. Lyons testified that he ordered dinner and a drink. Mr. Lyons testified that they were discussing Bechtel's decision to allow Mr. Lyons to use a 98 Linkbelt instead of the hydraulic backhoe he had been using because he had been experiencing problems with his hydraulic lines.

At some point after Mr. Terry announced that Mr. Lyons would be given a 98 Linkbelt, a dispute arose between he and Mr. Lyons. Mr. Lyons testified he told Mr. Terry that he "didn't want no help from anybody that was trying to get [him] run off. . . ." (When Bechtel hired Mr. Lyons, L.D. Pickens, a supervisor, had told him that if he needed any help, he should ask Mr. Terry to give him pointers.) Then, Mr. Terry walked out of the restaurant into a grassy area and yelled at Mr. Lyons demanding that he follow him outside. Mr. Lyons went outside, and he and Mr. Terry began fighting. Mr. Lyons testified that he could not remember all of the fight. He testified that he assumed Mr. Terry had grabbed him by the head and hit him there because he had knots on his head and his ear and his eye was black and cut. After the fight, Mr. Lyons testified that he walked to his motel room and called L.D. Pickens, the main supervisor. Mr. Lyons testified that during that conversation, he told Mr. Pickens about the fight. The next morning, Mr. Lyons testified that Mr. Brecky picked him up at the hotel to bring him to work. Mr. Lyons then testified that he told Mr. Brecky he needed a ride to the main office so that he could return to the United States. Danny Burgess, the foreman who supervised Mr. Brecky and Mr. Terry, gave Mr. Lyons a ride to the main office and scheduled a flight to the United States for him. Mr. Lyons returned to the United States on September 30, 1998.

Shortly after his return home, Mr. Lyons testified that he went to his family doctor, Dr. Carl Nabours. Dr. Nabours examined him, performed x-rays, and referred Mr. Lyons to an orthopedic surgeon, Dr. Lynn Foret.

Dr. Foret examined Mr. Lyons on October 20, 1998. Dr. Foret noted Mr. Lyon's left wrist pain, low back pain, neck pain, and numbness in the arms. Dr. Foret scheduled MRI's of the cervical and lumbar spine, and scheduled a follow-up visit. He also restricted Mr. Lyons from returning to work.

During their next visit, on November 4, 1998, Dr. Foret reviewed the MRI films with Mr. Lyons. The MRI films of the cervical spine revealed a "mixed right paracentral C5-6 disc protrusion with mild right ventral cord compression." The MRI films also revealed "a small central disc herniation of the protrusion-type at C6-7 with minimal ventral midline cord compression." Dr. Foret noted that there was "a small right paracentral and right proximal foraminal disc protrusion at 4-5 without neural compression." Dr. Foret also recognized that Mr. Lyons had "some foraminal stenosis at 5-6 as well as that mixed disc protrusion at that level 5-6." Finally, the MRI films of the lumbar spine indicated "a tiny central non-compressive disc herniation of the protrusion-type at L5-S1." After this visit, Dr. Foret referred Mr. Lyons to a neurosurgeon, Dr. William Foster, for evaluation of his cervical disc injuries.

Dr. Foster's initial visit with Mr. Lyons was on November 11, 1998. At that time, the doctor noted significant disc herniations in the last two cervical disc levels. Dr. Foster recommended a myelogram and CAT scan, which were performed on February 8, 1999. These diagnostic studies indicated that Mr. Lyons had "a[n] extradural defect in the neck at C5/6." Dr. Foster also noted that Mr. Lyons had a "slippage of a moderate amount, no more than one to two millimeters at C3 on C4." Dr. Foster further indicated that Mr. Lyons' CAT scan showed that he had "a focal disk protrusion at C4/5, paracentral and to the right."

Dr. Foster saw Mr. Lyons on February 16, 1999. During that visit, Dr. Foster explained the results of the studies to him. Dr. Foster's impression was that Mr. Lyons had a herniated cervical disk and evidence of nerve root irritation or compression on the right side and an element of spinal cord compression. In addition, Dr. Foster felt that he had a lumbar strain with nerve root irritation.

Dr. Foster's last examination of Mr. Lyons was on May 4, 1999. During that visit, they discussed the second opinion the insurance company's choice of physician, Dr. Juneau, had given. Dr. Juneau had indicated that he felt surgery would be an option for Mr. Lyons' neck injury. Dr. Foster discussed the possibility of surgery...