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Dabney v. Boh Brothers Construction Company.3/11/1998
DABNEY v. BOH BROS. CONST., 97-1041 (La.App. 4 Cir. 3/11/98); 710 2d 1106
APPEAL FROM OFFICE OF WORKERS' COMPENSATION, STATE OF LOUISIANA.
Defendant, Boh Brothers Construction Company, vigorously defended a claim for workers' compensation by Rickey Dabney for an injury to his back on 7 December 1994. After two hearings, the trial court awarded Dabney maximum supplemental earnings benefits and certain medical expenses, assessed penalties and attorney's fees against the defendant for its refusal to pay claimant benefits and its refusal to allow him to change treating orthopedists, and reduced claimant's benefits for his refusal to cooperate with appropriate rehabilitation.
STATEMENT OF THE CASE
On 7 December 1994, Dabney suffered an injury to his back in the course and scope of his employment with Boh Brothers. On 15 February 1995, Dabney filed a disputed claim for benefits with the Office of Workers' Compensation. The trial court conducted a trial of the matter on 25 November 1996, and signed a judgment on 11 December 1996. The trial court ordered Boh Brothers to pay Dabney benefits in the amount of "$254.94 from February 28, 1995 until terminated by this court." The court calculated the claimant's average weekly wage by his hourly wage times forty hours per week, totaling $382.80. The court ruled that the employer and insurer acted arbitrarily and capriciously in refusing to pay Dabney benefits and awarded penalties and attorney's fees, in the amounts of $2,000.00 and $8,000.00, respectively. The trial court found that the employer had chosen Dr. Stephen Flood to examine and evaluate the claimant on 30 January 1995, and arbitrarily and capriciously denied the claimant his choice of orthopedist, Dr. James Butler, and again assessed a $1,000.00 penalty and $2,000.00 in attorney's fees against the employer. Boh Brothers timely appealed.
On 23 May 1997, the trial court heard additional evidence on the disputed claim and rendered a second judgment on additional issues on 18 June 1997. The trial court in its second judgment found that the claimant had not cooperated with vocational rehabilitation and reduced his benefits by fifty percent from 25 November 1996, pursuant to LSA-R.S. 23:1226(E). However, the court further ordered the employer to reduce the reduction in proportion to claimant's school attendance. The June Judgment also provided: "This Court further finds that claimant is not temporarily totally disabled. This Court finds that claimant can work. However, this Court further finds that, thus far, employer has not shown available employment to employee . . . ." Defendant again timely appealed. Claimant answered the defendant's appeal and requested additional attorney's fees for defending the appeals. The two appeals were consolidated.
STATEMENT OF FACTS
A careful review of the entire record of the consolidated appeals reveals proof of some of the arguments proposed, but certainly not all of the facts alleged, by both the appellee and the appellant. Clearly, the record establishes certain facts. On 7 December 1994, the claimant, Rickey J. Dabney, injured his back while he shoveled asphalt on a job for his employer, Boh Brothers. Boh Brothers employed the claimant from May 1992, until January 1995. Dabney worked for $9.57 an hour when Boh Brothers had the work for him to do. Dabney shoveled asphalt, used a jackhammer, and generally served his employer as a laborer in its asphalt department. The availability of work for employees in this department depends on conditions largely out of the control of the employer and the employee, including the weather and the types of jobs contracted by the public. Clearly, Boh Brothers pa
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