Mitchell v. Artcrete, Inc.

• Decision Date: 09 December 2009
• Docket Number: No. 09-492.,09-492.
• Citation: 24 So.3d 1000
• Parties: Dexter MITCHELL v. ARTCRETE, INC.
• Court: Court of Appeal of Louisiana — District of US

24 So.3d 1000

Dexter MITCHELL v. ARTCRETE, INC.

No. 09-492.

Court of Appeal of Louisiana, Third Circuit.

December 9, 2009.

Rehearing Denied January 13, 2010.

George A. Flournoy, Flournoy & Doggett (APLC), Alexandria, LA, for Plaintiff/Appellant-Dexter Mitchell.

James J. Hautot, Jr., Jason E. Wilson, Judice & Adley, Lafayette, LA for Defendant/Appellee-Artcrete, Inc.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.

THIBODEAUX, Chief Judge.

The plaintiff, Dexter Mitchell, appeals a judgment of the Office of Workers' Compensation (OWC) in favor of the defendant, Artcrete, Inc., (1) denying Mitchell indemnity benefits for the period of July 16, 2007 through October 23, 2007; (2) refusing to order that Artcrete pay medication expenses in the amount of $182.06 and indemnity benefits for the period of May 18, 2007 through May 25, 2007; (3) refusing to acknowledge Artcrete's stipulations regarding its duty to pay these medication expenses as well as the indemnity benefits due for the week of May 18, 2007 through May 25, 2007; (4) denying Mitchell's contention that Artcrete unreasonably delayed the resumption of indemnity benefits after October 24, 2007; and, (5) awarding Mitchell only $2,500 in attorney fees.

For the following reasons, we affirm the judgment with respect to Mitchell's benefit payments for the period from July 16, 2007 through October 23, 2007 and with respect to Artcrete's entitlement to a credit for overpaid benefits.¹ As to the prescription benefits and as to the benefits paid for the week of May 18, 2007 through May 25, 2007, we reverse and award both penalties and attorney fees for Artcrete's failure to pay those benefits.

Evidence that on April 27, 2007, Mitchell sustained injuries while in the course and scope of his employment is well-supported and is not in dispute. His ability to fully return to work following those injuries and Artcrete's timeliness in payment of benefits and medication expenses to treat those injuries are in dispute, however. We find that Mitchell was released for full duty by his physician on July 16, 2007, and, thus, was not entitled to benefits for the period of July 16, 2007 through October 23, 2007. Moreover, though Artcrete timely remitted payment for some of Mitchell's expenses and benefits, it did not do so for other expenses and benefits. Thus, we find that Mitchell is entitled to an award of penalties in the amount of $8,000 and attorney fees in the amount of $5,000 for work done at the trial level in this case and an additional $3,000 for work done on this appeal.

I. ISSUES

We must decide whether:

(1) the OWC manifestly erred in denying Mitchell indemnity benefits for the period of July 16, 2007 through October 23, 2007;

(2) the OWC manifestly erred in refusing to order that Artcrete pay medication expenses in the amount of $182.06 and indemnity benefits for the period of May 18, 2007 through May 25, 2007;

(3) the OWC manifestly erred in refusing to acknowledge Artcrete's stipulations regarding its duty to pay said medication expenses as well as the benefits due for the week of May 18, 2007 through May 25, 2007;

(4) the OWC manifestly erred in finding that Artcrete acted reasonably in delaying the resumption of indemnity benefits after October 24, 2007; and,

(5) the OWC manifestly erred in awarding Mitchell only $2,500 in attorney fees.

II. FACTS AND PROCEDURAL HISTORY

Mitchell was employed by Artcrete, a concrete manufacturer, in Natchitoches, Louisiana. On April 27, 2007, a pallet of concrete fell on Mitchell's right foot. Mitchell immediately reported the incident to his supervisor, and Mitchell was taken to a local hospital for evaluation. The next day, equipped with crutches, Mitchell attempted to return to work at Artcrete, but the company told Mitchell that it had no work suitable for him, given his limited mobility.

On May 7, 2007, Mitchell filed a claim for indemnity benefits with the Office of Workers' Compensation. At the time Mitchell filed his claim, no indemnity benefits were due to him. Indeed, immediately following the accident, and for three weeks thereafter, Artcrete continued to pay Mitchell's full wages. Artcrete did not pay Mitchell anything for the week of May 18, 2007 through May 25, 2007, but the company began paying indemnity payments to Mitchell in the amount of $213.50 per week beginning on May 25, 2007.²

On June 27, 2007, Dr. Stephen Cox, Mitchell's primary care physician, evaluated Mitchell and released him to full-duty work effective July 17, 2007. Dr. Cox scheduled a six-week follow-up visit, but Mitchell did not return to Dr. Cox's office until October 24, 2007.

Because Mitchell was released to work by Dr. Cox, Artcrete discontinued benefit payments on August 3, 2007. Following his release to work on July 16, 2007, Mitchell secured temporary employment as a delivery person for the Natchitoches Times. In Fall 2007, however, Mitchell experienced recurring pain in his injured foot. On October 24, 2007, Dr. Cox reevaluated Mitchell and placed him on restriction from all work. Mitchell's counsel demanded that Artcrete promptly resume payment of indemnity benefits, but Artcrete did not do so until December 2007.

III.

LAW AND DISCUSSION

Standard of Review

The supreme court articulated the standard of review in workers' compensation cases as follows:

In worker's compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC's findings of fact is the "manifest error-clearly wrong" standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir. [6/27/03]), 865 So.2d 98, 105.

Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Indemnity Benefits for July 16, 2007 through October 23, 2007

Mitchell contends that the WCJ erred in refusing to award payment and penalties for Artcrete's failure to provide indemnity benefits for the period of July 16, 2007 through October 23, 2007. Dr. Cox evaluated Mitchell on June 26, 2007, and concluded that Mitchell could return to full duty at work. Specifically, Dr. Cox stated, "At this time, we are going to return Mr. Mitchell back to his work on 07/16/2007. . . . I will return him to full duty. If he has any problems after that, we will reevaluate him but he should be fully healed and be able to return to full activity."

Mitchell attempted to find work following Dr. Cox's release, and, indeed, Mitchell worked delivering papers for the Natchitoches Times in September 2007. On October 24, 2007, Dr. Cox again evaluated Mitchell, and recommended that Mitchell rest his foot. Dr. Cox restricted Mitchell from all work.

Mitchell asserts that he continued to suffer pain and discomfort in his foot after Dr. Cox released him to full duty in July 2007. He argues that he was not "cured" of his injuries and that Dr. Cox's work release was "conditional." Moreover, Mitchell contends that he should not be penalized for Dr. Cox's busy schedule and for Mitchell's inability to schedule an appointment with Dr. Cox before October 24, 2007.

The WCJ disagreed. The WCJ noted that Dr. Cox's medical release was a full-duty release to work and that Mitchell did, indeed, attempt to look for work during that time.

Appellate courts should not disturb findings of fact absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). In Arceneaux, the supreme court spelled out a two part test for review of facts:

(1) The appellate court must find from the record that there is a reasonable factual basis for the findings, and

(2) The appellate court must further determine that the record establishes that the findings are not clearly wrong.

In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), the supreme court cited Arceneaux, then further stated:

[I]f an appellate court concludes that the trial court's factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Davis v. Owen, 368 So.2d 1052, 1056 (La.1979). Although appellate courts must accord great weight to the factual findings of the trial judge, these same courts have a duty to determine if the fact finder was justified in his conclusions. See, e.g., Parker v. Rhodes, 260 So.2d 706, 717 (La.App. 2 Cir.1972). An appellate court is not required, because of the foregoing principles of appellate review, to affirm the trier of fact's refusal to accept as credible uncontradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979).

Here, we consider not only the medical evidence that clearly supports Dr. Cox's unconditional release of Mitchell to work on July 16, 2007, but we also consider the WCJ's interpretation of the facts. The WCJ noted that Mitchell failed to return to Dr. Cox's office until October 24, 2007, despite Dr. Cox's recommendation that Mitchell return to Dr. Cox for reevaluation on or about August 8, 2007. The WCJ also noted that Mitchell looked for, and found, other employment during this time period.

Nothing in the record...