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Durham v. Plum Creek Manufacturing5/10/2000
by jarring his spine on the forklift, as Mr. Durham described.
The record shows that the plaintiff suffered a herniated disc in 1993 while operating a forklift at Plum Creek. The plaintiff was treated by Dr. Sandifer and his symptoms improved sufficiently for the plaintiff to return to work. While the plaintiff admits he had some back pain from 1993 until the time of this accident, the record does not establish that this was significant enough for the plaintiff to seek medical attention until the present injury in 1998. The WCJ found credible the plaintiff's testimony that he felt a pop in his back on April 23, 1998 while operating his forklift at Plum Creek, accompanied by the sudden onset of pain in his lower back, left hip and left leg. This is sufficient to show that the plaintiff suffered an employment-related accident. Further, even though none of the plaintiff, co-workers actually saw the accident occur, several testified that the plaintiff suddenly began experiencing severe, debilitating back pain at the time he claims he was injured, corroborating his testimony. These facts establish that a sudden, precipitous event occurred while the plaintiff was operating his forklift which aggravated his previous work-related back injury. Further, this was more than a gradual deterioration. Also, the plaintiff attempted to report his condition to his supervisors, but was not successful in doing so, as will be discussed below. Under these facts, we find that the plaintiff established that he sustained a work-related injury which aggravated or combined with his prior work-related back injury to produce the present disability. Therefore, the WCJ was not manifestly erroneous or clearly wrong in awarding workers' compensation benefits to the plaintiff.
PENALTIES AND ATTORNEY FEES
The plaintiff answered the appeal, contending that the WCJ erred in rejecting his claim for penalties and attorney fees. The plaintiff notes that Plum Creek failed to call to testify the person who made the decision to reject his claim for benefits. Further, he asserts that there was no evidence to controvert his claim. Therefore, Plum Creek was arbitrary and capricious in denying benefits and should be assessed with penalties and attorney fees. He seeks a 12% penalty on all amounts past due. Mr. Durham further asserts that his attorney expended considerable time in this case, attending twelve depositions. Two depositions were of experts. He argues that an attorney fee of $7,500.00 should be awarded in this case. This argument is without merit.
A claimant is entitled to recover penalties and attorney fees in instances where the employer fails to timely pay medical or indemnity benefits unless the claim is reasonably controverted. La. R.S. 23: 1201. A claim is reasonably controverted when the employer or insurer produces factual or medical information of such a nature that it reasonably counters the claimant's evidence. Taylor v. Columbian Chemicals, supra. A WCJ has great discretion in awarding or denying penalties and attorney fees and his or her discretion will not be disturbed absent manifest error. Odom v. International Paper Co., 31,826 (La. App. 2d Cir. 5/5/99), 736 So. 2d 290.
The attorney fee and penalty provision, however, are penal in nature and must be strictly construed, allowing recovery only in cases where the facts negate probable cause of nonpayment. Briscoe v. Thero-Kinetics, 31,890 (La. App. 2d Cir. 5/5/99), 737 So. 2d 177; Lee v. Bancroft Bag, Inc., 30,820 (La. App. 2d Cir. 8/19/98), 717 So. 2d 1230.
The record shows that the plaintiff's claim for workers' compensation benefits was reasonably controverted. The plaintiff claimed that he told Edward Wright,
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