Mallery v. Dynamic Industries, Inc.
86 So. 3d 826
| La. Ct. App. | 2012Background
- Mallery, employed as a painter/sandblaster for Dynamic, was injured on 9/26/2006 when a forklift dragged a beam onto his leg, causing leg and low back injury and later neck pain.
- He underwent lumbar surgery on 6/2/2009 and soon developed neck pain.
- In August 2009 he filed a 1008 disputing medical expenses and seeking penalties and attorney fees for alleged improper denial of cervical treatment.
- Trial in June 2011: WCJ found cervical issues related to the 2006 accident and deemed Dynamic/LWCC responsible for related medical care, including Cobb-recommended surgery; penalties and attorney fees were awarded.
- Writings and post-trial briefing led to Defendants appealing the decision; Mallery answered the appeal seeking additional attorney fees for defense of the appeal.
- The Louisiana Court of Appeal amended the judgment by reducing penalties to $4,000 and awarded $3,000 in additional attorney fees for defending the appeal; affirmed as amended.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Mallery’s cervical condition causally connected to the 2006 work accident? | Mallery: cervical problems arose from lumbar surgery linked to the 2006 accident. | Dynamic/LWCC: cervical issues are degenerative and not a normal risk of lumbar surgery. | Yes; cervical complaints related to the 2006 accident via surgery-related causation; affirmed. |
| Were penalties and attorney fees properly awarded for failure to authorize cervical surgery and related care? | Mallery argues penalties/fees were warranted for failure to recognize, authorize and fund cervical treatment. | Defendants contend penalties were improper or duplicative; they reasonably controverted. | penalties upheld for failure to recognize but reduced due to duplicative penalties; total $4,000; not upheld for duplicative charges. |
| Should penalties be combined or counted separately when duplicative? | N/A (Mallery seeks full penalties as statutory allows). | Penalties for surgery and post-surgical care are duplicative. | Penalties for surgery and post-surgical care were combined; total reduced to $4,000. |
| Is an additional attorney fee appropriate for defending the appeal? | Mallery entitled to increased fees for time defending appeal. | N/A or opposed; not contested amount. | Additional attorney fee of $3,000 awarded for defense of appeal. |
Key Cases Cited
- Foster v. Rabalais Masonry, Inc., 811 So.2d 1160 (La.App. 8 Cir. 2002) (manifest error standard for factual review in workers’ comp.)
- Green v. National Oilwell Varco, 63 So.3d 354 (La.App. 3 Cir. 2011) (coverage determinations are fact-intensive and reviewed with deference to WCJ findings.)
- Pender v. Southern Farm Bureau Casualty Insurance Co., 280 So.2d 599 (La.App. 3 Cir. 1973) (first vs. second accident; what caused disability remains the focus.)
- Porter v. Augenstein Const. Co., 280 So.2d 861 (La.App. 3 Cir. 1973) (employer liable when work-related accident aggravates pre-existing condition.)
- Nash v. Aecom Technology Corp., 976 So.2d 263 (La.App. 3 Cir. 2008) (claimant entitled to increased attorney fees for time spent defending unsuccessful appeal.)