65 So. 3d 806
La. Ct. App.2011Background
- Dustin Russell, employed by H & H Metal Contractors, was injured on May 13, 2009 while installing insulation; he fell after a gust of wind struck insulation.
- Russell suffered compression fractures to T-12 and L-1; post-accident drug screen tested positive for marijuana and opiates.
- Bridgefield initially paid indemnity and medical benefits; Russell treated with multiple physicians; Advocate for choice of physician disputed.
- Benefits were terminated after about a year; Russell asserted errors in indemnity calculation, lack of authorized medical treatment, misrepresentation, and disability status.
- WCDJ found a compensable injury and temporary total disability; awarded indemnity, medical, penalties, and attorney fees; H&H and Bridgefield appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Gunderson letter | Russell | H&H | Letter excluded; evidence review still supports TTD finding |
| Penalty/attorney fees despite drug screen | Russell sought penalties/fees for improper termination and miscalculation | H&H asserts improper basis for penalties given intoxication defense | Penalties affirmed with amendment: $2,000 per miscalculation period; $8,000 for termination; fees affirmed; appeal attorney fees awarded |
| intoxication defense and compensability | Russell maintained benefits should not be defeated by intoxication claim | H&H argued intoxication precluded recovery | Intoxication not a contributing cause; claimant entitled to benefits |
| Misrepresentation grounds | Russell's inconsistencies not proven willful misrepresentation for benefits | H&H argued misrepresentation voids benefits | No willful misrepresentation proven; benefits not forfeited |
Key Cases Cited
- Lemoine v. Hessmer Nursing Home, 651 So.2d 444 (La.App. 3 Cir. 1995) (trial court wide discretion; late evidence limited use but not binding on merits)
- Cangelosi v. Our Lady of the Lake Reg'l Med. Ctr., 564 So.2d 654 (La. 1989) (requirement for de novo review when trial ruling is manifestly erroneous)
- Quinn v. Vidalia Apparel, 54 So.3d 123 (La.App. 3 Cir. 2010) (de novo review not warranted where judge misapplies standard)
- Ducote v. Louisiana Industries, Inc., 980 So.2d 843 (La.App. 3 Cir. 2008) (penalties for miscalculation treated as single claim if remedied by lump sum)
- Burnett v. Village of Estherwood, 25 So.3d 997 (La.App. 3 Cir. 2009) (principles on penalties and miscalculation in workers' compensation)
- Rivers v. Bo Ezernack Hauling Contractor, Inc., 32 So.3d 1091 (La.App. 3 Cir. 2010) (findings of fact and credibility reviewed for manifest error)
- Savoy v. Cecil Perry Imp. Co., 691 So.2d 692 (La.App. 3 Cir. 1997) (intoxication presumption and reasonable controversion standards)
- Barker v. Allen Canning Co., 663 So.2d 320 (La.App. 3 Cir. 1995) (intoxication defense and proof required for penalties)
- Negri v. Authement Const., Inc., 28 So.3d 1071 (La.App. 4 Cir. 2010) (intoxication defense framework)