Polkey v. Landworks Inc.

• Decision Date: 29 July 2011
• Docket Number: No. 2010 CA 0718.,2010 CA 0718.
• Citation: 68 So.3d 540
• Parties: Joe POLKEYv.LANDWORKS, INC. and Luba Casualty Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

68 So.3d 540

Joe POLKEY

v.LANDWORKS, INC. and Luba Casualty Insurance Company.

No. 2010 CA 0718.

Court of Appeal of Louisiana, First Circuit.

Oct. 29, 2010.Rehearing Denied July 29, 2011.

Laurie W. Maschek, Slidell, LA, for Claimant/Appellee Joe Polkey.Stephen W. Brooks, Jr., Richard J. Voelker, Covington, LA, for Defendants/Appellants Landworks, Inc. and LUBA Casualty Insurance Company.Before PARRO, GUIDRY, and HUGHES, JJ.HUGHES, J.

[1 Cir. 2] This is an appeal from a judgment of the Office of Workers' Compensation (“OWC”), awarding temporary total disability benefits. For the reasons that follow, we amend, and affirm as amended.

FACTS AND PROCEDURAL HISTORY

On January 20, 2009 Joe Polkey, while in the course and scope of his work as an employee of Landworks, Inc. (“Landworks”) in Franklinton, Louisiana, allegedly sustained injury to his left knee when a stack of tires fell, knocking him to the ground. Landworks refused to pay workers' compensation benefits. Thereafter, on March 17, 2009 Mr. Polkey filed a “Disputed Claim for Compensation” with the OWC, seeking to collect workers' compensation benefits, penalties, and attorney fees from his employer, Landworks, and his employer's insurer, LUBA Casualty Insurance Company (“LUBA”).¹

Following a hearing before the OWC, the defendants were ordered to provide follow-up medical treatment to Mr. Polkey, and he was further awarded: temporary total disability benefits from the date of his injury through August 7, 2009 (the date he became employed elsewhere), amounting to $6,083.04; a $2,000.00 penalty for the defendants' failure to pay medical benefits; a $2,000.00 penalty for the defendants' failure to pay indemnity benefits; attorney fees in the amount of $10,700.00; employee's costs in the amount of $445.00; and judicial interest from the date of demand. Defendants have appealed this judgment and make the following assignments of error:

[1 Cir. 3] 1. The Workers' Compensation Judge committed manifest error in concluding that [Mr.] Polkey sustained his burden of proving an accident arising out of and in the course of his employment with Landworks, Inc. on January 20, 2009.

2. The Workers['] Compensation Judge abused her discretion in not allowing proffered, relevant evidence, or in not granting a continuance to secure the testimony of a witness who was under subpoena, but did not appear at trial.

3. The Workers['] Compensation Judge abused her discretion in not strictly construing the penalty provisions of the Louisiana Workers['] Compensation Act and imposing penalties and attorney's fees.

LAW AND ANALYSIS

OWC Finding of Compensable Injury

The Workers' Compensation Act provides coverage to an employee for personal injury by accident arising out of and in the course of his employment. See LSA–R.S. 23:1031(A). An employee must prove the chain of causation required by the workers' compensation statutory scheme as adopted by the legislature, and must establish that the accident was employment-related, the accident caused the injury, and that the injury caused the disability. Clausen v. D.A.G.G. Construction, 2001–0077, p. 2 (La.App. 1 Cir. 2/15/02), 807 So.2d 1199, 1201, writ denied, 2002–0824 (La.5/24/02), 816 So.2d 851.

As in other cases, in reviewing the OWC judge's factual determinations, including whether the employee has discharged his burden of proof, this court is bound by the manifest error standard of review. Lafleur v. Alec Electric, 2004–0003, p. 4 (La.App. 1 Cir. 12/30/04), 898 So.2d 474, 478, writs denied, 2005–0276, 2005–0277 (La.4/8/05), 898 So.2d 1287, 1288; Moran v. G & G Construction, 2003–2447, p. 4 (La.App. 1 Cir. 10/29/04), 897 So.2d 75, 79, writ denied, 2004–2901 (La.2/25/05), 894 So.2d 1148. Under that standard of review, an appellate court may only [1 Cir. 4] reverse an OWC judge's factual determinations if it finds from the record that a reasonable factual basis for the finding does not exist, or that examination of the entire record reveals that the finding is clearly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id., 617 So.2d at 883. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfinder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review where conflict exists in the testimony. Lafleur v. Alec Electric, 2004–0003 at p. 4, 898 So.2d at 478.

In this case, the defendants/appellants contend that the alleged accident was uncorroborated and that evidence presented before the OWC discredited Mr. Polkey and cast doubt on his claim.² Defendants/appellants further assert that the alleged accident was contrived by the claimant because he was angry about being accused of theft in the workplace.

Following the conclusion of the trial in this matter, the OWC judge gave oral reasons for ruling in favor of Mr. Polkey, stating in pertinent part:

I've had the opportunity to listen to all the witnesses, both Mr. Polkey and the witnesses for Landworks. Right off the bat[,] I just want to say Mr. Polkey came across to me as a very credible witness. I didn't see any real glaring inconsistencies with the description of the accident with the way it happened and the way the witnesses corroborated the incident on January 20th of 2009.

[1 Cir. 5] The first thing I wanted to start off with is I think there was a lot put on the fact that Mr. Polkey allegedly gave notice of some sort that he had quit or that he was going to give his two-week notice. He's testified that he gave his two-week notice and he was intending to continue working for the rest of those two weeks.

Miss Emma, who testified today, actually corroborated that. She said that he had given his two-week notice that morning. And the more interesting thing was she testified about the phone call Mr. Polkey allegedly got from Detective Stubbs, and Miss Emma's testimony was she said that Mr. Polkey said he had to take tomorrow evening off to meet with the sheriff.

So, in other words, that to me corroborates the fact that whether or not he told somebody, I quit, it's more probable to me that he did tell Miss Emma, I'm giving my two-week notice, because otherwise he wouldn't have a reason to say as far as my workday tomorrow is concerned, I'm going to have to take the evening off to meet with the sheriff. His timesheet shows that he worked that day. Apparently Miss Emma filled out that he had worked from 8 to 11 and then wrote “got hurt” on it.

The other thing, too, is, I mean, as far as just from a legal standpoint, the only thing I can really compare it to is if I resigned today and I gave my two-week notice, if I walk back to my office and trip and fall or hurt my back, I'm still entitled to Workers' [Compensation] benefits.

Now, when I'm released to work eventually by my physician, I may not be entitled to any indemnity because I've already intended to resign and I wasn't intending to go back to that job. But I think for all our purposes today just based on all the testimony I heard, it appears to me that Mr. Polkey did indicate to Miss Emma that he was giving his two-week notice. He was intending to actually be at work the next day but had to meet with the sheriff.

So for those reasons, you know, I don't really give a lot of credibility to any defense based on the fact that he had told somebody he quit and then he got hurt after that. All the evidence indicates he was on the clock that day.

As far as the incident itself, Mr. Polkey obviously didn't have any witnesses to the incident. I'm solely going on his testimony. I'm entitled to rely on that testimony provided that it's corroborated by the circumstances after the accident and nothing discredits it. You know, other evidence or other witnesses.

In this case, the actual incident of tires falling on him and knocking him to the ground and landing on the outside of his knee was corroborated by his—or he testified that he had water and [leaf] debris of some sort on him. That was actually corroborated by Mr. Raymond Miller and Mr. Barber who indicated that when they came upon the scene shortly after that, his pants were wet and he had said he had had an incident and he hurt his knee.

[1 Cir. 6] It's also corroborated by the Riverside [Medical Center] records which indicate when he presented over there, he said that a pile of tires fell against the outside of his leg and then he had a small joint effusion on his leg. So there is objective evidence in this case, you know, to corroborate his version of the events.

* * *

... I think Mr. Polkey was a credible witness. And I guess in general, I think all of the defense witnesses were credible, too. It just turned into one of these situations where pretty much all of the testimony that I heard actually corroborated a lot of the aspects of Mr. Polkey's claim.

* * *

As far as any attacks on his credibility, I think a lot was made of these post-hire questionnaires. If you're looking at it from a 1208.1 aspect as far as, you know, did he make misrepresentations on the post-hire questionnaire that he filled out for Landworks, I don't think I can make a finding of that sort given that Dee Myers testified that [the] post-hire questionnaire was a different one from the one that was originally filled out and she testified that his personnel file was missing the original post-hire questionnaire. So, you know, as far as that goes, I don't know what was on any original post-hire questionnaire.

As far as the other post-hire questionnaires being used to impeach, I guess it just got to a point where I kept hearing over and over again the questioning about these prior accidents or incidents either job related or not job related. At the end of the day, there weren't any that [were], in my...