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Carter v. Wal-Mart Stores6/26/2002
AFFIRMED.
FACTS
On October 24, 1997, Eddie Carter was employed by Wal-Mart in the Receiving Department when he injured his back in the course of performing his duties. Initially, Mr. Carter sought medical treatment for his injury at Huey P. Long Medical Center in Alexandria, Louisiana. Ultimately, an MRI revealed the claimant had a ruptured disc with nerve impingement at L5-S1. On July 18, 1998, Dr. M. Lawrence Drerup, a neurosurgeon, performed a discectomy on the claimant. In December of 1998, Dr. Drerup reported that Mr. Carter had reached maximum medical improvement with a 10% total body impairment and released him to return to work.
Mr. Carter received indemnity benefits from the date of injury until December 13, 1998. Mr. Carter returned to work with Wal-Mart on December 24, 1998, performing light duty tasks. He resigned on March 20, 1999, to work for Red Simpson. Mr. Carter worked for Red Simpson as a ground man (laborer) from March 23, 1999, until November 24, 1999. According to his supervisor, Richard Landry, Mr. Carter did not do too much because he wasn't capable of doing too many things. Landry stated that the claimant was in training mostly observing and assisting. Allegedly, the claimant continued to suffer from pain in his back and leg while he was employed by Red Simpson.
The claimant re-injured his back at his home on November 18 or 19, 1999, when he twisted his back upon trying to catch a falling picture frame. On November 29, 1999, the claimant went to the V.A. Medical Center with complaints of back pain. Mr. Carter could not return to work for Red Simpson without a medical release. His employment with Red Simpson was terminated in January of 2000.
On December 23, 1999, Mr. Carter filed a Disputed Claim for Compensation against Wal-Mart Stores, Inc. Following a trial of the matter on November 8, 2001, the workers' compensation judge issued an oral ruling. Judgment was rendered in favor of Mr. Carter, finding that he was entitled to Supplemental Earnings Benefits in the amount of $132.21 per week, retroactive from the date of his last employment with Red Simpson. Additionally, penalties in the amount of $2,000.00 for failure to timely pay medical benefits and $2,000.00 for failure to pay indemnity benefits, and $5,000.00 in attorney fees were awarded.
Wal-Mart appeals from this judgment.
ASSIGNMENTS OF ERROR
I. The Trial Court committed manifest error by holding that Mr. Carter sustained his burden of establishing causation by a preponderance of the evidence;
2. The Trial Court committed manifest error by holding that Mr. Carter sustained his burden of establishing by a preponderance of the evidence an inability to earn at least 90% of his average monthly wage; and
3. The Trial Court committed manifest error by holding that Wal-Mart Stores, Inc. was liable for penalties and attorney fees, and, in the alternative, the award of attorney fees was excessive.
DISCUSSION
Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. La. Dept. of Corrections, 93-1305 (La. 2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993).
The workers' compensation judge noted that the issues to be resolved in this matter are: 1) whether or not in November of 1999 Mr. Carter sustained an aggravation to his pre-existing work injury from October of 1997 or whether or not
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