Jimmerson v. Johnson Storage & Moving Co.
142 So. 3d 111
La. Ct. App.2014Background
- Claimant alleges a May 15, 2012, unwitnessed work accident while delivering an outdoor spa for Johnson Storage and Moving.
- Claimant reported pain the evening of May 15, 2012, later worsening by May 16; initial testing suggested a lumbar strain/sprain.
- Claimant returned to light-duty work, treated at Concentra from May 24 to July 2012, and then sought more extensive evaluation in October 2012.
- Dr. Voorhies diagnosed a large extruded disc herniation and recommended microdiskectomy, which defendants initially denied.
- Trial court found a compensable accident and awarded temporary total disability (TTD) from July 4, 2012, plus penalties and attorney fees; remanded SEB calculation.
- Appellate court amended: no TTD entitlement from July 4 to October 15, 2012, but upheld compensable accident and ordered SEB calculation on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did a work-related accident occur on May 15, 2012? | Wicker contends the May 15 incident happened in the course of employment. | Johnson/Zurich argue the record does not prove an accident occurred. | Yes; the accident occurred in the course and scope of employment. |
| Whether claimant was temporarily totally disabled (TTD) and from what date? | Claimant proves he cannot engage in any employment due to injury. | Defendants contest preceding disability and the need for TTD. | TTD not proven from July 4, 2012 to October 15, 2012; SEB remanded for calculation. |
| Whether penalties and attorney fees were warranted for failure to pay benefits and authorize treatment? | Claimant is entitled to penalties and fees for improper denial of treatment. | Defendants challenge the basis for penalties and fees. | Penalties and fees affirmed; record support for denial timing issue given discovery of records. |
| Whether claimant forfeited benefits under La. R.S. 23:1208? | Claimant did not willfully misrepresent to forfeit benefits. | Claimant's inconsistent statements constitute forfeiture under 23:1208. | No forfeiture; statements do not prove willful misrepresentation beyond reasonable doubt. |
| What is the appropriate remedy regarding SEB and overall compensation on remand? | SEB should be calculated for the period claimant could not perform pre-injury work. | SEB calculation requires full factual record; remand appropriate. | Remand for SEB calculation; otherwise affirmed as amended. |
Key Cases Cited
- Bruno v. Harbert International, Inc., 593 So.2d 357 (La. 1992) (unwitnessed-accident burden requires corroboration and objective support)
- Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993) (factual credibility review; manifest error standard)
- Hamilton v. Compass Grp. USA/Morrison, 973 So.2d 803 (La.App. 5 Cir. 2007) (gives guidance on corroboration and worker credibility)
- Authement v. Shappert Engineering, 840 So.2d 1181 (La.2003) (failure to furnish treatment can trigger penalties unless reasonably controverted)
- Williams v. Rush Masonry, 737 So.2d 41 (La.2000) (penalties for failure to pay are penal in nature; require nonfrivolous dispute)