GUIDRY, J.
In this workers' compensation action, the employers appeal a judgment of the Office of Workers' Compensation Administration (OWCA) finding that the claimant sustained a compensable, workplace injury and awarding the claimant temporary, total disability (TTD) benefits, penalties, and attorney fees for the employers' wrongful termination of those benefits. Based on a careful review of the record before us, we affirm.
On May 1, 2014, while working in his position as a laborer for New Line Environmental Systems, LLC (New Line), 55-year-old Bobby L. Davis jumped from a tractor as it began to tilt and then roll sideways down a levee. At the time of the accident, Mr. Davis was driving the tractor with a trailer attached up a New Orleans levee. Following the accident, which occurred on a Thursday afternoon, Mr. Davis assisted other employees in lifting the tractor and attached trailer, which had landed sideways at the bottom of the levee, and setting the machinery upright. He then completed his work for the day and went home. The following day, Mr. Davis completed a drug test and took the paperwork back to New Line office. Although he was scheduled to work that day, Mr. Davis went home after turning in the drug test paperwork, stating that he was still "shaken up" from the prior day's accident. Thereafter, Mr. Davis did not return to work, but he was paid workers' compensation medical and TTD benefits.
In response to the disputed claims filed by the employers, Mr. Davis filed, among other things, an answer, wherein he admitted that he sustained injury "on or about May 1, 2014," in the course and scope of his employment as an employee of New Line and that he sustained an injury resulting in a loss of earning capacity, but the nature and extent was yet to be determined. He denied that the average weekly wage set forth in the employers' disputed claim was correct or that he was offered, requested, or refused rehabilitation services.
Following the denial of motions for summary judgment filed by Mr. Davis and termination of an unsuccessful attempt at mediation, Mr. Davis filed a separate disputed claim for compensation, wherein he sought a determination of his disability status, reinstatement of TTD benefits, authorization for medical treatment by physicians of his choosing, and mileage reimbursement. In response to Mr. Davis's disputed claim for compensation, the employers denied that Mr. Davis had sustained an accident as defined under the Louisiana Workers' Compensation Act and denied for lack of sufficient information to justify a belief that he "sustained a disabling injury as a result of any alleged accident while employed by [employers] and further maintain[ed] that [Mr. Davis was] not temporarily totally disabled, permanently disabled or suffering any loss of earning capacity." The workers' compensation judge later signed an order consolidating the two actions. The matter thus proceeded to trial.
Following the trial in this matter, the workers' compensation judge signed a judgment dated July 15, 2015, wherein she found that Mr. Davis had sustained an injury in the course and scope of his employment with New Line and that Mr. Davis had carried his burden of proving that he was temporarily, totally disabled from May 2, 2014 and continuing. Consequently, the workers' compensation judge awarded Mr. Davis TTD benefits from June 20, 2014 (the date of termination of benefits) and continuing, plus legal interest from the date that each installment was due, until paid. The workers' compensation judge also awarded Mr. Davis all of the medical expenses he had incurred, as well as penalties and attorney fees for the employers' arbitrary, capricious, and without-probable-cause termination of workers' compensation benefits and failure to authorize and/or pay medical benefits after June 19, 2014. She dismissed the employers' claim for violation of La. R.S. 23:1208 with prejudice. Following rendition, the
On appeal, the employers aver the following:
In their first assignment of error, the employers argue that the workers' compensation judge erred in finding that Mr. Davis met his burden of establishing that he was entitled to TTD benefits by clear and convincing evidence. In particular, the employers point out the lack of more recent medical evidence to establish that Mr. Davis was disabled from working.
Pursuant to La. R.S. 23:1221(1)(c), a claimant has the burden of proving temporary and total disability by clear and convincing evidence. In the absence of clear and convincing evidence that the employee is physically unable to engage in any employment, the claimant's demand for TTD benefits must fail.
Disability can be proven by medical and lay testimony. The fact finder must weigh all the evidence, medical and lay, in order to determine if the claimant has met his burden of proof.
Mr. Davis testified at the workers' compensation hearing that he was 56 years old, that he dropped out of school in the 10th grade, and that most of his work experience has been as a laborer. He said he had never held an office job or any type of job where he could just sit down during the course of the day. Following the accident, Mr. Davis sought medical treatment from Dr. Marcus Schroeder, a chiropractor at Atlas Rehab and Medical, and at the Redi-Med Clinic & Occupational Health Center, until his workers' compensation benefits were terminated. Once his workers' compensation benefits were terminated, Mr. Davis went to the Interim LSU Public Hospital in New Orleans to receive treatment.
Mr. Davis testified that he sustained injuries to neck, back, left leg, and left shoulder as a result of the accident, and when questioned at the hearing about what
Mr. Davis said that he had not earned any wages from any job since he received his last paycheck from New Line and that he had not applied anywhere for a job since he left New Line. Mr. Davis's girlfriend with whom he lived, Charlotte May, also stated that Mr. Davis started going to "a free place, a hospital in New Orleans.... LSU," when his workers' compensation benefits were terminated. She described Mr. Davis as a "tough cookie." She said he basically did most of the things that he wanted to do to an extent, as long as he had medication, but if he did, he would lay down in between doing things, which is something he never did before.
Dr. Schroeder, who was accepted as an expert in the field of chiropractic medicine, also testified at the hearing. Dr. Schroeder acknowledged that during the time he treated Mr. Davis, it was his opinion that Mr. Davis was totally incapacitated from work. He stated that up until the last time he treated Mr. Davis, he was still pretty symptomatic, and as such, Mr. Davis was still incapacitated from work. He stated that the reason he disabled Mr. Davis was due to the pain that Mr. Davis suffered and because he also had some neurological findings, which Dr. Schroeder explained "if you try to work through muscle weakness... it can cause ... future injury or just danger to other people he's working with."
The neurological findings that Dr. Schroeder observed during his time of treatment were diminished reflexes, especially on Mr. Davis's left side in his bicep and patella, a little weakness of his grip, and sciatic-type pain in his left leg. Mr. Davis's medical records from Redi-Med reveal that on his dates of treatment at that facility (May 22, 2014 to June 9, 2014), spasms were observed in Mr. Davis's paraspinal muscle on both the left and right side of his back and his straight leg raising test was positive bilaterally.
Dr. Schroeder testified that he would classify consistent pain experienced for over three months as being chronic, and with this in mind, he agreed that he would find a patient totally incapacitated if the patient had chronic pain, basically without
An employer has an ongoing duty to review medical reports concerning an injured employee's disability, and may not deny or discontinue workers' compensation based on inconclusive medical reports. Further, employers must demonstrate that they made reasonable efforts to medically ascertain a workers' compensation claimant's exact condition before denying benefits.
The employers in this matter contend that they have no obligation to pay TTD benefits to Mr. Davis, because he failed to prove that he was unable to work; but the record before us does not support this contention. Instead, the record shows that Mr. Davis did establish that he was disabled from working, based on the medical opinion of Dr. Schroeder and his own testimony. Moreover, we find it disingenuous for the employers to criticize the evidence presented by Mr. Davis when his ability to present medical evidence in support of his burden of proof as to the extent of his disability was stymied by the employers' termination of all benefits based on their arbitrary determination that Mr. Davis had violated La. R.S. 23:1208.
Equally important is that the TTD benefits paid to Mr. Davis were terminated without any conclusive medical evidence indicating that Mr. Davis could resume working.
In their remaining assignment of error, the employers contend that the workers' compensation judge erred in assessing them with penalties and attorney fees for the termination of Mr. Davis's workers' compensation benefits. The employers argue that they reasonably controverted Mr. Davis's claim, and as such, they did not arbitrarily or capriciously terminate Mr. Davis's benefits.
Statutory provisions permitting the assessment of penalties and attorney fees for nonpayment of workers' compensation benefits are penal in nature and must be strictly construed. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to the claimant's entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative.
With regard to the
Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. The crucial inquiry is whether the employer has an articulated and objective reason for discontinuing benefits at the time it took that action.
In her reasons for judgment, the workers' compensation judge expressed the following regarding the evidence presented at the hearing and her basis for finding that penalties and attorney fees should be assessed:
In
In the matter before us, and as recognized by the workers' compensation judge, the differences in the accounts of what occurred at the time of Mr. Davis's accident were minor. The accounts of the material facts of what occurred, however, did not differ: on the date of the accident, the tractor Mr. Davis was driving began to tilt and roll over, and Mr. Davis was forced to dismount from the tractor as a consequence. Moreover, we agree that Mr. Guidry's detailed account of the accident does appear to be somewhat suspect, as he acknowledged that the tractor rolled down the levee and that when Mr. Davis dismounted, he dismounted "down the levee," which would have been below the tractor. Considering the size of the tractor, gravity, and Mr. Guidry's viewpoint (at the top of the levee), the evidence supports the workers' compensation judge's finding that Mr. Guidry's account of the accident was less than credible and insufficient to reasonably
Based on a thorough and detailed review of record before us, we find no manifest error in the workers' compensation judge's award of benefits or assessment of penalties and attorney fees in this matter. Accordingly, we affirm. All costs of this appeal are assessed to the appellants, New Line Environmental Systems, Inc. and Canal HR.
