Tingle v. Page Boiler, Inc.

• Decision Date: 13 January 2016
• Docket Number: No. 50,373–WCA.,50,373–WCA.
• Citation: 186 So.3d 220
• Parties: Kevin TINGLE, Plaintiff–Claimant v. PAGE BOILER, INC., Defendant–Appellee.
• Court: Court of Appeal of Louisiana — District of US

186 So.3d 220

Kevin TINGLE, Plaintiff–Claimant

v.PAGE BOILER, INC., Defendant–Appellee.

No. 50,373–WCA.

Court of Appeal of Louisiana, Second Circuit.

Jan. 13, 2016.

Christopher R. Philipp, for Appellant.

Hudson, Potts & Bernstein, LLC by Brian Bowes, for Appellee.

Before WILLIAMS, MOORE, and CALLOWAY, Pro Tempore, JJ.

MOORE, J.

The claimant, Kevin Tingle, appeals a judgment that rejected, in part, his claim for workers' compensation indemnity and medical benefits, and, in full, his claim for dependent benefits, benefits while incarcerated, mileage and medical reimbursement, and penalties and attorney fees.For the reasons expressed, we affirm in part, reverse in part and render.

Factual Background

Tingle, age 23, went to work for Page Boiler in late August 2013 as a general laborer or welder's helper at an average weekly wage of $583.50.Page Boiler was performing a contract to clean refractory boilers at the Idaho Timber mill in Coushatta.On the morning of September 25, Tingle was standing on a 20–foot scaffold, scraping the inside wall of a three-story boiler.He placed his foot on, or was standing on, the "outrigger," a support beam above and to the side of the scaffolding platform.He lost his footing and fell to the platform, landing on his back; his cousin, who was working with him, kept him from falling to the bottom of the boiler.EMTs rope-lifted him out of the boiler, and he was airlifted from Christus–Coushatta to LSU Health Sciences Center in Shreveport.

At the LSU emergency room, nurses recorded that he had fallen about 4 feet onto the scaffold and was complaining of neck and back pain.However, an X-ray of his thoracic spine showed "no convincing evidence of acute osseous injury" and his cervical CT scan was "grossly normal."LSU discharged him the same day, with advice to see his primary care physician.

Tingle went to his family doctor, Gregory Bell, on September 27, complaining of great pain; his mother, Stacy Tingle, told the doctor he could not even feed himself for the pain.Seeing that the X-rays were negative, Dr. Bell referred Tingle to The Spine Institute of Louisiana, in Shreveport.Tingle retained counsel, who notified Page Boiler's insurer, Argonaut, that he wished to select Dr. Pierce Nunley, of The Spine Institute, as his physician of choice.

On October 14, Tingle was arrested for second degree battery.He testified that his mother's next-door neighbor got drunk and tried to assault her, so he(Tingle) intervened; this arrest later resulted in a probation revocation.The next day, October 15, 2013, he filed this disputed claim for compensation, alleging that no benefits had been paid, and demanding his choice of physician, with penalties and attorney fees.

On October 21, Tingle went back to Dr. Bell, complaining of back and neck pain, but mostly of depression issues; he did not tell Dr. Bell about the affray with the neighbor a week earlier.On November 18, he came to the Christus–Coushatta emergency room with a lacerated right ring finger, which he said happened when he was skinning a deer.He testified that he had not been out hunting, but was just skinning one his uncle shot.

Argonaut eventually approved Tingle's choice of physician and he saw Dr. Nunley on December 2.He reported that he had fallen 7 or 8 feet off a scaffold and, notably, that he had no prior back injuries or pain.Dr. Nunley found some muscle spasms, moderate limitation of motion from pain, and a mildly decreased extensor hallucis longus (L5) muscle, but otherwise Tingle's back seemed normal.However, he gave Tingle a "no work" slip and ordered MRIs and an EMG.

On December 4, counsel wrote Argonaut, demanding temporary total disability ("TTD") benefits.

On January 15, 2014, Tingle returned to Dr. Nunley, who reviewed the test results, finding degenerative disc disease at C5–6, and annular tears at L5–S1 and L4–5 with well-hydrated discs.Dr. Nunley testified that because of the good hydration, the tears were "no major concern."He also testified that an annular tear can cause back pain, and that these probably resulted from the work-related fall.He felt Tingle's injuries were only to the soft tissue and would naturally heal; he placed him on light-duty work.

On February 19, Argonaut issued Tingle a compensation check for TTD covering the 10–week period from December 5, 2013, to February 14, 2014.The next day, it began issuing weekly TTD checks of $389.01.It never, however, issued any compensation for the 10–week period between the date of the accident, September 25, and the effective date of the first payment, December 5, 2013.

On June 4, 2014, the district court held a probation revocation hearing.Tingle was on probation for a 2008 conviction of criminal damage to property; the court revoked this because of the October 14, 2013, second degree battery of the mother's neighbor, and sent Tingle to jail.Argonaut immediately halted TTD benefits, pursuant to La.R.S. 23:1201.4, and formally notified the Office of Workers' Compensation("OWC") of this fact on June 17.Tingle has received no further indemnity benefits.

Tingle was released from jail on September 23, 2014.Counsel wrote to Argonaut, demanding reinstatement of benefits.He also advised that the bill from the LSU emergency room on the date of the accident had never been paid.

Tingle paid a final visit to Dr. Nunley on October 23, reporting that his pain was more focused in his lower back and worse than a year earlier, immediately post-accident.Dr. Nunley still thought the injury was to soft tissue only, would naturally heal, and Tingle could do light-duty work.In November 2014, counsel again wrote to Argonaut, reiterating all previous claims and requesting reimbursement for certain pain prescriptions from the emergency room and Dr. Nunley, and mileage for his round trips to Dr. Nunley, his pharmacy and physical therapist, and a round trip to LSU on the date of the accident.

Action in the OWC

The matter came to trial in January 2015, before WCJ Patrick Robinson.The parties stipulated that the accident was work-related and that Tingle's compensation rate was $389.01 a week.

Tingle was the only live witness.He testified as outlined above, insisting that the drop from the outrigger to the scaffold was 7 ½–8 feet, even though photos seemed to show the outrigger was about waist high.Tingle also testified that he was living with his mother and two minor brothers, for whom he was the sole financial support, even though he had been in jail for three years (2008–2011), and the only tax return he could find, 2013, showed he made $7,233 that year.He admitted that his choice of physician, Dr. Nunley, had placed him on light-duty status, but insisted that Page Boiler had no light-duty work.

On cross-examination, Tingle admitted that despite telling various healthcare providers that this was his first back injury, he actually had several: (1) a 2005 auto accident in which he was the backseat passenger in a car that was T-boned; (2) an April 2011 work-related injury from slipping on an oily floor; (3) a March 2012 injury from picking up aluminum siding (he insisted the hospital record of this was wrong, and it actually happened in 2002, when he was eight years old); and (4) a March 2012 auto accident in which he was the front-seat passenger in a car that ran off the road at 75 mph and crashed into a tree (he claimed to have no recollection of this event).Even though he had gone to the hospital after each of these incidents, he testified that none of them was "really major" and nothing ever "lasted this long."

The parties also introduced a large amount of documentary evidence, chiefly medical records which are not directly relevant to the instant claim but show that in addition to back injuries and pain, Tingle had chronic problems with depression and suicidal thoughts.

Other documents showed that Argonaut paid (1) TTD each week from December 6, 2013, until June 1, 2014; (2) the medevac for the date of the accident; and (3) all of Dr. Nunley's medical bills.However, it had not paid (1) the LSU bill for the date of the accident; (2) any of Dr. Bell's bills; (3) three prescriptions or any of the mileage claimed by Tingle.

Depositions of Dr. Nunley and Dr. Bell were introduced, and are summarized above, as well as depositions of Tingle's cousin, Danny Lindsey, and mother, Stacy Tingle.However, the deposition of the cousin who actually witnessed the fall, Chris Mitchell, was not yet transcribed.WCJ Robinson held the record open for one week to allow Tingle to file this deposition; it was never filed.

While the case was under advisement, WCJ Robinson was appointed director of the Louisiana OWC.Tingle's case was assigned to an ad hoc WCJ.On April 7, 2015, the ad hoc WCJ issued reasons for judgment.In the recitation of facts, the WCJ stressed the inconsistent account of how far Tingle actually fell; his history of bipolar disorder ; the disconnect between Dr. Nunley's benign diagnosis and Tingle's complaints of debilitating pain; Tingle's failure to report his prior back injuries, one of which was very serious; and Tingle's fairly significant criminal record.The WCJ stated that given this evidence, if the employer had pled fraud under La.R.S. 23:1208, the court would have sustained that plea and ordered forfeiture of all benefits.Even though § 1208 was not at issue, the WCJ found that Tingle lacked credibility, offered only his self-serving testimony of an ongoing disability, and failed to prove his injury lasted past June 1, 2014, when he was sent to jail.The WCJ denied any further TTD benefits.It also denied the claim for penalties and attorney fees, as well as the dependent claim of Tingle's mother.The WCJ later signed a judgment dismissing all claims.

Tingle took this devolutive appeal, raising eight assignments of error.

Discussion: Benefits After June 4, 2014

By his seventh assignment of error, Tingle urges the WCJ erred in finding that he failed to prove he was entitled...