Green v. NATIONAL OILWELL VARCO
63 So. 3d 354
| La. Ct. App. | 2011Background
- Green filed a 1008 claim March 3, 2009 for a January 27, 2009 workplace injury (groin) seeking wage benefits and medical treatment under LWCA.
- Trial occurred May 5, 2010; WCJ ruled in Green's favor and signed May 28, 2010 judgment awarding TTDs, medical expenses, treatment by chosen physician, penalties, attorney fees, and costs with interest.
- Varco appealed asserting error on medical benefits, indemnity, indemnity rate, and penalties/fees.
- WCJ found an accident occurred within scope of employment, credited Green’s credibility, and criticized Varco’s handling (investigation and denial) of the claim.
- Appellate opinion amended the indemnity rate, awarded Green additional appellate attorney fees, and affirmed costs against Varco.
- Judgment amended in part: TTD rate adjusted to $346.84 per week; Green awarded $2,000 additional attorney fees on appeal; all appellate costs cast on Varco.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Medical benefits related to the work injury | Green proves past and future care tied to Jan. 27 injury | Varco argues medical bills not tied; future care not clearly delineated | Past and future medical care related; Green authorized to treat with chosen physician; future care allowed |
| Indemnity benefits and disability | Green unable to work due to injury; lay and medical evidence support disability | Disability not proven medically; opposing testimony creates doubt | Green entitled to indemnity benefits based on totality of evidence showing disability |
| Indemnity rate (TTD) calculation | Rate should reflect actual computation; standard rate applicable | Rate proposed by Varco may be correct; no error in calculation | TTD rate amended to $346.84 per week (not $348.40) as correct calculation |
| Penalties and attorney fees for failure to pay benefits | Employer failed to reasonably investigate and controvert; penalties warranted | Benefits denied or controverted reasonably; penalties not warranted | WCJ did not err in awarding penalties and attorney fees; Varco not reasonably controverting |
Key Cases Cited
- Foster v. Rabalais Masonry, Inc., 811 So. 2d 1160 (La.App. 3 Cir. 2002) (standard of review for factual findings; deference to WCJ)
- Smith v. Louisiana Dept. of Corrections, 633 So. 2d 129 (La. 1994) (manifest error review in workers' compensation)
- Stobart v. State, 617 So.2d 880 (La.1993) (reasonable basis standard; deferential review of findings)
- Cent. Lumber Co. v. Duhon, 860 So.2d 591 (La.App. 3 Cir. 2003) (credibility determinations given deference)
- Odom v. Kinder Nursing Home, 956 So.2d 128 (La.App. 3 Cir. 2007) (disability determination is legal, based on totality of evidence)
- Romero v. Northrop-Grumman, 787 So.2d 1149 (La.App. 3 Cir. 2001) (employer's continuing obligation to investigate before denying benefits)
- Nash v. Aecom Technology Corp., 976 So.2d 263 (La.App. 3 Cir. 2008) (entitlement to increased attorney fees for appellate work)