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Bordelon v. Cox Communications5/31/2005
Panel composed of Judges James L. Cannella, Thomas F. Daley, and Walter J. Rothschild
AFFIRMED IN PART AND REVERSED IN PART
The Defendant, Cox Communications (Cox), appeals from the judgment of the Office of Workers' Compensation (OWC) in favor of the Plaintiff, James Bordelon (Bordelon), finding that he was entitled to temporary total disability (TTD) benefits for four days following the accident and to supplemental earnings benefits (SEBs) thereafter, medical and travel expense, and attorney fees and penalties for arbitrarily refusing to pay benefits. For the reasons which follow, we affirm in part and reverse in part.
Bordelon was employed by Cox as a field service representative when, on February 12, 2003, following a normal day's work in the field as well as a "full install," he experienced severe back pain. He reported the ailment to his supervisor and sought medical treatment the next day. Bordelon has not returned to his job since then. On September 29, 2003, Bordelon filed a Disputed Claim Form with the OWC. Following a hearing, the Workers Compensation judge found that Bordelon had been injured by an "accident" while working for Cox on February 12, 2003; that he had aggravated a pre-existing injury; that he was entitled to TTD benefits from the date of the accident through February 16, 2003; that he was entitled to SEBs from February 17 through the present and ongoing; that he was entitled to payment of all medical and travel expenses; that he had not committed willful misrepresentations of his claim; that, because Cox had failed to reasonably controvert the claim and had acted arbitrarily and capriciously in refusing to pay medical and indemnity benefits, he was entitled to a $2000 penalty award for failure to pay medical treatment and expense, a $2000 penalty for failure to pay indemnity benefits and a $6000 award for attorney fees. The judge gave Cox credit for previously paid benefits and for the time period when Bordelon was receiving unemployment benefits. It is from this judgment that Cox appeals, assigning five errors. Bordelon answered the appeal requesting appellate costs and attorney fees.
On appeal, Cox's main argument is that the judge erred in finding that Bordelon proved that he suffered a compensable "accident" as defined by the Workers' Compensation Act.
In order to qualify for workers' compensation benefits, the claimant has the burden of proving that he sustained a work-related accident. La. R.S. 23:1031. "Accident" is defined in the Workers' Compensation Act in La R.S. 23:1021(1) as follows:
"Accident" means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.
Cox argues that for Bordelon to be successful, he has the burden of proving that (1) he suffered an "actual, identifiable. . .event;" (2) that happened suddenly or violently; (3) that produced objective findings of injury at the time of the event; and (4) that was more than a gradual deterioration or progressive degeneration.
Bordelon disagrees, arguing that the jurisprudence supports a finding that benefits are payable where the injured employee can identify a definable period of time during which he suffered a debilitating work injury. Bordelon relies on two cases from this circuit, Sears v. Berg, 99-457 (La. App 5th Cir. 9/28/99), 742 So.2d 760 and Perilloux v. Brown & Root, Inc., 96-321 (La. App. 5th Cir. 10/1/96), 692 So.2d 1100, in support of his position.
In Sears, the claimant h
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