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JAMES MCKINLEY VERSUS

NO. 09-CA-930 FIFTH CIRCUIT

KLEIN STEEL, INC.

COURT OF APPEAL
STATE OF LOUISIANA

ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7, STATE OF LOUISIANA NO. 07-6481, HONORABLE SYLVIA T. STEIB, JUDGE PRESIDING

March 23, 2010

EDWARD A. DUFRESNE, JR.
CHIEF JUDGE
Panel composed of Judges Edward A. Dufresne, Jr., Clarence E. McManus, and Marc E. Johnson

WILLIAM R. MUSTIAN, III
Attorney at Law

3117 22nd Street, Suite 6 Metairie, LA 70002 COUNSEL FOR PLAINTIFF/APPELLEE
BRADLEY P. NACCARI
Attorney at Law

3320 West Esplanade Avenue North Metairie, LA 70002 COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED

This is a worker's compensation proceeding which resulted in a determination favorable to James McKinley, the employee-claimant. His employer-appellant, Klein Steel, Inc., now appeals that determination. For the following reasons, we affirm. We further award an additional $2,000 in attorney
fees for legal services on this appeal.

The undisputed facts are as follows. On August 15, 2007, claimant was carrying a stair railing on his job when he stumbled and hit his head on a stair
structure. His co-worker at the site drove him back to the employer's office to report the injury. Martha Klein, the owner's wife, told claimant to report to North Oaks Medical Center for treatment, and he did so. Bella Holden, the admitting

clerk at the hospital, testified that claimant identified his employer as Klein Steel and gave her a telephone contact number. The number given was that of a Klein Steel cell phone which was provided to claimant when he was employed by the
company. She called this number and got a voice mail from a Robert Stafford.

Stafford was a former Klein employee to whom the phone had previously been assigned, and his voice mail message was still on it at the time of this accident. Holden left a call back message but never received one. She said she never

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mentioned a drug test to claimant, and to her knowledge claimant never refused such a test.
After treatment, claimant returned to Klein Steel and spoke to Martha Klein

again. She asked if he had been given a drug test and he said no, and further that no one had said anything about such a test at the hospital. She was surprised by his answer and called the hospital to find out why the test had not been given. However, she did not send claimant back to the hospital for a test, nor did she even
suggest that he return for a test.

When she called the hospital, Klein spoke to Mariem Lovewhite, a staff coordinator, who said she would look into why no drug test was conducted. In late
August, Lovewhite sent Klein the results of her inquiry, which were that Holden had called the contact number given to her by claimant and left a message, but no

return call was ever received. As to claimant's injury, he was initially treated for a scalp laceration. He was discharged with a light duty restriction, and Martha Klein testified that her husband offered to find something for claimant to do with the restrictions, but no specific job was shown to have been offered. Claimant did not return to work after
the accident. On September 18, 2007, claimant was seen by Dr. Lori Summers, a neurosurgeon. On November 26, 2007, he underwent the first of two surgeries for spinal disc problems related to his injury. In February of 2008, Dr. Summers

notified the worker's compensation adjuster that claimant had been unfit for any
work from the time she first saw him on September 18.

Worker's compensation was paid to claimant from the time of the accident
until September 5, 2007, at which time his "light duty" status was not continued by the original treating physician. However, upon the November 26 surgery, benefits
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were recommenced and apparently are continuing. Also, all medicals have been paid. However, the insurer refused to pay benefits for the period of September 18, 2007, to November 26, 2007. Claimant brought this claim to recover benefits for
this period.

The Worker's Compensation Judge ruled that claimant was entitled to temporary total disability benefits from September 18, to November 26, 2007. She also ruled that defendants had failed to reasonably controvert claimant's entitlement to such benefits, and awarded a penalty of $2,000, and attorney fees of $3,000. Defendants have now appealed this judgment, and claimant has answered the appeal seeking an additional $2,000 in attorney fees for appellate work in this
court.

Appellant's theory of the case is that claimant gave fictitious employer
information to the hospital admitting clerk, Bella Holden, in order to prevent her

from verifying his worker's compensation status, and to further circumvent the employer from requesting that a drug test be done. Specifically, it asserts that claimant gave his company cell phone number and the name of Robert Stafford as
the employer contact person, knowing that this person was no longer employed by Klein.

To support this theory it introduced the hospital admit form and a computer generated lists of calls and correspondence related to the claim. The admit form shows that Klein Steel was claimant's employer and lists that company's phone number as that for claimant's cell phone. Nowhere on that form does the name
Robert Stafford appear. In fact, the only mention of Robert Stafford in the entire

hospital file appears in one of the computer generated items entered by Bella Holden and dated August 15, 2007, which simply states "called work Robert
Stafford @ 1-28pm n/o left message." Holden testified on direct examination that
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she recalled claimant giving her Stafford's name as the contact person. However, when it was suggested on cross-examination that she may have picked up the name from the voice mail she gave a somewhat convoluted explanation that this would have been somehow illegal. It was also undisputed that the voice mail on the
phone did give the name of Robert Stafford to the caller. Claimant, for his part, testified that he did not know who Robert Stafford

was, but did know a former Klein employee named Bob. Martha Klein testified that Stafford had not worked at the company for about a year before the incident at
issue here, and could not recall whether claimant's and Stafford's employment had

ever overlapped. Claimant also introduced two prior admission forms to the hospital for non-work related problems, one on July 25, 2007, and another on August 10, 2007. The admit forms for both give the same information as that appearing on the August 15, 2007, form as to Klein being his employer and the
"Stafford" phone number. After hearing the above evidence, the judge ruled that Bella Holden's

testimony was not given weight because it was "incredulous." She noted that there was absolutely no evidence to establish that claimant had been offered a drug test
and refused it, and further noted that upon his return to Klein Steel he freely stated

that no drug test had been offered or administered. Martha Klein corroborated this testimony, and admitted that she did not send him back to the hospital for such a test. Also weighing in the judge's decision was the fact that claimant had given the same employer name and phone number on two prior hospital admissions which
were not worker's compensation related. She summarized her findings as to the

intoxication issue by stating that "there was no evidence of intoxication, no request for a drug test, no refusal to take a drug test, and no testimony or evidence of any appearance of drug or alcohol usage by claimant on August 15, 2007." As to
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claimant's entitlement to benefits between September 18, 2007, and November 26, 2007, she found that there was no contradictory medical evidence to refute
claimant's injury and resulting disability during this period. She finally concluded

that "there was a failure to reasonably controvert claimant's entitlement to benefits during that time frame and awarded benefits, penalties, and attorney fees. When issues on appeal involve factual determinations, the standard of
review is "manifest error." Stobart v. State through Dept. of Transp. and Develop., 617 So.2d 880 (La. 1993). Moreover, when there are two permissible views of the

evidence, the trier of fact's determination cannot be manifestly erroneous. Id. Here, the trier of fact made a specific finding that the testimony of Bella
Holden was highly problematical, and did not give it much weight. When

considering this determination as to this testimony in light of the entire record, we
find no manifest error, and therefore must affirm that finding.

The laws which appellant cites to justify its refusal to pay benefits are La.

R.S. 23:1081, related to the intoxication defense, and La. R.S. 23:1208, related to
false statements. As to the intoxication defense, section (7)(b) provides that if the employee refuses to submit to a drug test a presumption of intoxication arises. The trier of fact found that no such test was either offered or refused, and the record
overwhelmingly supports this finding. Thus, no presumption of intoxication ever arose, there was no other evidence to establish intoxication, and the trial judge

correctly rejected this defense.
As to false statements, the jurisprudence is clear that the statement must be false, it must be willfully made, and it must be made for the purpose of obtaining

benefits. Resweber v. Haroil Const. Co., 94-2708 (La. 9/5/95), 660 So.2d 7. The
trier of fact found that claimant did not willfully make any false statement for

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purposes of obtaining benefits. Again, the record provides ample factual support for this conclusion, and it is clearly not manifestly erroneous. The final issues on appeal concern the awards of penalties and attorney fees.
Such determinations are factual, and therefore subject to the manifest error

standard of review. Blanchard v. Rental Service Corp., USA, 5-460 (La. App. 5 Cir. 1/17/06), 920 So.2d 911. In the present case there was ample evidence to support the determination that the employer did not reasonably controvert the
claim. The defense's entire theory of the matter was based on the mere speculation that claimant had lied to the admit clerk at the hospital to circumvent the

administration of a drug test. However, benefits were paid from November 26,
2007, including the costs of two surgeries, based on the same information known to the adjuster during that time frame. Further, in February of 2008, the surgeon

notified the adjuster that claimant was totally disabled from the time of his first visit to her on September 18, 2007, and there was absolutely no contrary medical opinion of record. We therefore affirm these awards. Claimant has also answered the appeal seeking additional attorney fees of $2,000 for work on appeal. We deem this figure to be reasonable and therefore make that additional award. For the foregoing reasons the judgment of the Office of Worker's
Compensation awarding claimant benefits, penalties and attorney fees is hereby

affirmed. Claimant is also awarded an additional $2,000 in attorney fees for work
before this court.

AFFIRMED

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EDWARD A. DUFRESNE, JR. CHIEF JUDGE MARION F. EDWARDS SUSAN M. CHEHARDY

PETER J. FITZGERALD, JR. CLERK OF COURT

GENEVIEVE L. VERRETTE CHIEF DEPUTY CLERK MARY E. LEGNON FIRST DEPUTY CLERK

CLARENCE E. McMANUS WALTER J. ROTHSCHILD FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON
JUDGES

FIFTH CIRCUIT 101 DERBIGNY STREET (70053) POST OFFICE BOX 489 GRETNA, LOUISIANA 70054
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PETER. . ITZGERA D, JR CLER t )F COWT

09-CA-930
WILLIAM R. MUSTIAN, III ATTORNEY AT LAW 3117 22ND STREET SUITE 6 METAIRIE, LA 70002 BRADLEY P. NACCARI ATTORNEY AT LAW 3320 WEST ESPLANADE AVENUE NORTH METAIRIE, LA 70002



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