An appeal by an Oklahoma tower manufacturer and erector that it should not have to pay attorney fees after losing a workers' compensation suit was denied by the Third Circuit Court of Appeal of Louisiana last week and the court ruled that the company would have to pay additional fees to the plaintiff's counsel for its representation of the Louisiana winch operator.
The decision also affirmed that a Louisiana workers compensation judge had authority to issue the original ruling since the man was hired via a telephone conversation and authorized agent in Louisiana and not in the state where the erection project for a 1,600-foot guyed tower was performed.
In addition, it acknowledged that the original request for medical payments and penalties must be compensated to the plaintiff.
Bell Tower Corporation and Dallas National Insurance Company had appealed the judgment of the Workers' Compensation Judge in favor of Robert LeJeune, finding that LeJeune suffered a work-related injury to his hand while employed by Bell Tower.
The judge had previously awarded LeJeune indemnity benefits, ordered that he be allowed treatment by the physician of his choice, and awarded him $6,000 in penalties and $13,500 in attorney fees.
The appeals court amended the judgment and awarded him an additional $5,000 in attorney fees for representation during the appeal process.
Court records indicate that On September 15, 2007 LeJeune suffered a work-related injury to his left hand while operating a winch on site.
He reported the accident to his supervisor, David Traxler, who relayed the information to Richard Bell, the company's owner.
The winch operator testified that Bell's response to Traxler was that "if his finger was not cut off, he should continue working as they were in a hurry." LeJeune stated that he remained on the job for another four to five days, but had to leave due to the pain.
LeJeune sought no medical treatment until he returned to Louisiana approximately four days after the incident. He was treated by two physicians, but was unable to seek further treatment due to his inability to pay for the medical services and Bell Tower's refusal to pay.
In awarding the penalties and attorney fees the Workers Compensation Judge stated that Bell Tower "did virtually nothing to investigate this claim. That behavior is as much a violation of the statute as it is of conscience, and that worker here was severely injured."
A review of the record by the Third Circuit revealed that this finding was reasonable. "Mr. Bell admitted that he performed no investigation at all into this matter. Rather, he relied on second-hand accounts that Mr. LeJeune had not suffered a serious injury to his hand. Then, when asked by Mr. LeJeune's wife directly about his injury, he told her that it was too late for Mr. LeJeune to file a claim regarding his injury," the ruling stated.
Case law states that the failure to authorize a medical procedure for an employee otherwise eligible to receive workers' compensation is deemed to be the failure to furnish compensation benefits, thereby subjecting the employer to an assessment of attorney fees and penalties.
The defendants argued that LeJeune's continuing inability to properly use his hand was a result of a previous accident where he had accidentally gashed the same arm with a five-inch cut from a box cutter.
The court stated that medical records could not validate Bell's claim.
LeJeune, who lives in Sulphur, Louisiana, testified that in July of 2007, he was contacted by Traxler about the job in Mississippi. He stated that he went to Traxler's home, also in Sulphur, and while there, spoke to Bell by telephone. LeJeune testified that Bell offered him employment at $20.00 per hour and $75.00 per diem, and he accepted that offer.
LeJeune and Traxler traveled from Sulphur to Wiggins, Mississippi, and were immediately reimbursed for their travel expenses. However, it was not until a few days later that LeJeune completed the employment paperwork. That paperwork was channeled through Harbor America Texas, Inc., a company which handled the payroll for all of Bell's employees and pays workers' compensation insurance.
Traxler's testimony supported LeJeune's version of the circumstances surrounding the hiring process.
Bell denied giving Traxler the authority to hire LeJeune for the job. When questioned about whether he asked Traxler to put together a crew, Bell stated, "Somewhat."
He said that Bell Tower has a work crew, but explained that it experiences a large turnover of employees.
Prior to the Wiggins' job, Bell testified that Traxler suggested a couple of men for the crew. As he was familiar with these men, he said that he gave Traxler the authority to hire them.
He stated that the men, who he thought were in Texas, called him, and they reached an agreement as to their pay and per diem. Bell specifically denied the telephone conversation with LeJeune whereby LeJeune suggested he had been hired by Bell.
Bell testified that LeJeune was not hired until he arrived in Wiggins. He stated that the first time he either met or spoke to LeJeune was at a cafe in Wiggins on July 19, 2007.
He admitted that he reimbursed LeJeune's travel from Sulphur to Wiggins, in part because the amount was insignificant, but also because Traxler informed him that they needed LeJeune because he could operate any piece of equipment at the site and because their current operator was unreliable.
In finding that LeJeune was hired in Louisiana, the Workers Compensation Judge stated in his oral reasons:
"All of the evidence, and not just the live testimony, forces the conclusion that Mr. LeJeune certainly behaved as if he had a reasonable and legitimate expectation that he was hired in Louisiana before he, in the company of his supervisor, embarked to Mississippi, as did his employer. There was not a word of testimony even suggesting that Mr. LeJeune felt that his employment hinged on the face-to-face meeting with the owner of the company in the cafe. Rather, he relied, and reasonably so, on the company's designated representative that he was hired."
Third Circuit Court Chief Judge Ulysses Gene Thibodeaux and Judges Jimmie C. Peters and J. David Painter agreed.
LeJeune said that he injured his left hand while respooling wire onto the winch. He stated that the wire had gone off the spool and that he grabbed it with his left hand to guide it back onto the spool. According to LeJeune, while he was guiding the wire back onto the spool, a finger on his left hand became stuck in the winch.
The friction winch, which weighed approximately 4,000 to 7,000 pounds, according to Traxler, was older equipment and did not contain a leveler to ensure that the cable being wound onto the drum spooled correctly.
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Court disagrees with tower contractor's arguments to void winch operator's compensation
Source: Wireless Industry News
Date: 04/12/2010
