Opinion
2023 CA 0403
01-10-2024
Darryl RAYBORN, Sr. v. CONTINENTAL CEMENT COMPANY, LLC and ACE Property and Casualty Insurance Company
Ted Williams, Baton Rouge, Louisiana Counsel for Plaintiff/Appellee, Darryl Rayborn, Sr. Eric J. Waltner, Lafayette, Louisiana Counsel for Defendants/Appellants, Continental Cement Company, LLC and Ace Property and Casualty Insurance Company
On Appeal from the Office of Workers’ Compensation, District 5, In and for the Parish of Ascension, State of Louisiana, No. 21-05520, Hon. Jason Ourso, Workers’ Compensation Judge Presiding
Ted Williams, Baton Rouge, Louisiana Counsel for Plaintiff/Appellee, Darryl Rayborn, Sr.
Eric J. Waltner, Lafayette, Louisiana Counsel for Defendants/Appellants, Continental Cement Company, LLC and Ace Property and Casualty Insurance Company
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
PENZATO, J.
2Pefendants, Continental Cement Company, LLC and Ace Property and Casualty Insurance Company (collectively, "Continental Cement"), appeal from a judgment of the Office of Workers’ Compensation, which awarded the claimant, Darryl Rayborn, Sr., past and future indemnity and medical benefits. Specifically, Continental Cement challenges the workers’ compensation court’s determination that Mr. Rayborn proved that an accident occurred, as defined in La. R.S. 23:1021(1) of the Louisiana Workers’ Compensation Law.
The judgment on appeal also awarded a $4,000.00 penalty and $5,000.00 in attorney fees in favor of Mr. Rayborn and against Continental Cement based on a finding that Continental Cement arbitrarily and capriciously terminated Mr. Rayborn’s indemnity and medical benefits. Continental Cement also seeks reversal of the judgment on this issue and the imposition of a penalty and attorney fees.
Mr. Rayborn answered Continental Cement’s appeal, arguing that the award of attorney fees was inadequate. Mr. Rayborn asks this court to increase the attorney fee award and to award additional attorney fees for time incurred responding to Continental Cement’s appeal. For the following reasons, we grant the relief requested by Mr. Rayborn and amend the judgment to increase the award of attorney fees to $7,500.00 in favor of Mr. Rayborn, against Continental Cement, and affirm the judgment as amended. We also award $2,500.00 in attorney fees to Mr. Rayborn for successfully defending this appeal.
FACTS AND PROCEDURAL HISTORY
Mr. Rayborn maintains that he injured his left knee as a result of repeated climbing and jumping while unloading cement from barges "all week long" at 3Continental Cement’s plant in Port Allen, Louisiana. It is undisputed that Mr. Rayborn did not twist his knee or experience pain after a particular jump or maneuver while at work. He did not slip or fall. Continental Cement paid Mr. Rayborn workers’ compensation indemnity and medical benefits from January 24, 2019 through June 29, 2021, when it terminated all benefits on the basis that Mr. Rayborn failed to identify a specific injury-causing accident.
Continental Cement supplies bulk cement used for pilings. Mr. Rayborn was hired by Continental Cement on March 13, 2017.
Summit Materials, Inc. is identified as Mr. Rayborn’s employer on the notice of initial payment and notice of suspension of benefits introduced into evidence. The evidence in the record establishes that Summit owns Continental Cement. Continental Cement was named as the defendant employer in Mr. Rayborn’s 1008 disputed claim for compensation, and the parties do not dispute that Summit’s actions are attributable to Continental Cement for purposes of payment and suspension of Mr. Rayborn’s benefits.
Mr. Rayborn filed a disputed claim for compensation against Continental Cement on October 12, 2021, seeking indemnity and medical benefits, penalties, attorney fees, costs, and judicial interest. The matter proceeded to trial on December 12, 2022.
Mr. Rayborn, the only witness to testify at trial, explained that his usual place of employment in the fall of 2018 was Continental Cement’s plant in Convent, Louisiana. However, he was sent to Continental Cement’s plant in Port Allen the week before Thanksgiving in 2018 to help unload cement from barges. Due to construction in the area where Mr. Rayborn was working, cranes were used to stack lids involved in the unloading process. Ordinarily, the lids were not stacked, so the presence of construction in the area changed the way the job was done. Mr. Rayborn testified that stacking the lids required him to perform a lot of climbing and jumping that week.
On the evening of Wednesday, November 14, 2018, after he showered and "settled down," Mr. Rayborn began to feel soreness behind his left knee and 4believed he may have pulled a muscle.
Mr. Rayborn could not recall the specific date that he first felt symptoms, but consistently stated that his symptoms began on the Wednesday before Thanksgiving in 2018, during the week of November 12, 2018 (which was a Monday). Mr. Rayborn testified that he "felt a little something" in his left knee while at work on Wednesday, but denied any significant pain, anything that made him say, "Oh, I’m hurt."
Mr. Rayborn’s left knee pain continued to worsen, and on Friday, November 16, 2018, he sought medical treatment at an Ochsner clinic. The medical record from this visit documents a history of left knee trauma and pain, but does not reflect that Mr. Rayborn attributed his pain to repetitive climbing and jumping while at work or that he reported a work-related accident. However, Mr. Rayborn testified that he advised the doctor that his leg was hurting, and that he "was at work climbing up and jumping down off of barges" all week.
Mr. Rayborn’s knee pain increased the following week, while he was out of state on a pre-planned family trip. Mr. Rayborn returned to Louisiana on Sunday (November 25, 2018) and, shortly thereafter, reported the injury to Continental Cement. According to Mr. Rayborn, he advised his manager and one additional manager that he hurt his knee "some kind of way" and that he was doing too much climbing up and jumping down from barges and his knee "just started hurting."
Mr. Rayborn returned to the Ochsner clinic on November 27, 2018, reporting very little improvement in his left knee discomfort. The record states, "Patient had [an] injury while at work when he jumped from a height and later that day felt a discomfort in the left lateral knee." Mr. Rayborn was diagnosed with patellofemoral pain syndrome and tendonitis of the left knee. The record from Mr. Rayborn’s last appointment at the Ochsner clinic on December 21, 2018 similarly states that Mr. Rayborn injured his knee on the job, "however it was not readily apparent until [his] knee became stiff later that evening."
On the recommendation of his treating physician, Mr. Rayborn began treating with Dr. F. Allen Johnston, orthopedist, on January 17, 2019 and continued 5through at least July 18, 2022. Beginning with the initial evaluation on January 17, 2019, Dr. Johnston’s records consistently reflect that Mr. Rayborn sustained an on-the-job injury the week of November 12-16, 2018. According to the records, Mr. Rayborn reported that he was going through a series of climbing up and down, as well as jumping, for a new job assignment. Over the course of the week, "his knee began bothering him in the patellofemoral area and it started to become tight and swollen." This version of events is consistent with Mr. Rayborn’s reports to Dr. Alan Schroeder, the orthopedist who evaluated Mr. Rayborn on July 30, 2019 and May 25, 2021 to provide a second medical opinion to Continental Cement. The same is true for Dr. Luis Espinoza, the orthopedist who performed an independent medical examination on August 24, 2021, pursuant to the order of the workers’ compensation court.
This is the last date of treatment included in Mr. Rayborn’s medical records introduced into evidence at trial.
To refute Mr. Rayborn’s claim of a work-related accident, Continental Cement introduced Mr. Rayborn’s November 5, 2022 deposition, given in connection with a May 2018 car accident. When questioned about his workers’ compensation claim, Mr. Rayborn again recounted that he first felt what he believed was a pulled muscle in the back of his left knee on Wednesday night, the week before Thanksgiving 2018. Mr. Rayborn described climbing onto the lids, but he testified that he did not know what caused or led to the pulled muscle sensation behind his left knee. Mr. Rayborn was asked, "Anything happened before that Wednesday night at work that triggered that knee pain?" He responded, "No." During this deposition, Mr. Raybon also testified that he told the doctor at the Ochsner clinic that he was climbing up and down but, "I didn’t get hurt like that. I mean, it just started as, like, a sore muscle."
Mr. Rayborn filed suit for personal injuries allegedly sustained in the May 2018 car accident that gave rise to the deposition; however, it is undisputed that he did not injure his left knee in the May 2018 car accident.
6At the conclusion of trial, the workers’ compensation court ruled that Mr. Rayborn successfully proved that he sustained a work-related injury of his left knee on Wednesday, November 14, 2018 by climbing and jumping while performing his work duties. The court reinstated Mr. Rayborn’s indemnity benefits at the stipulated average weekly wage and medical benefits pursuant to the Office of Workers’ Compensation fee schedule. Finally, the court determined that Continental Cement’s termination of Mr. Rayborn’s benefits was arbitrary and capricious and imposed a penalty of $4,000.00 and awarded $5,000.00 in attorney fees to Mr. Rayborn. A written judgment in conformity with this ruling was signed on December 20, 2022. This appeal by Continental Cement followed.
REMAND
On October 19, 2023, this court remanded the case to the workers’ compensation court for the limited purpose of allowing the court to sign an amended final judgment that contained proper decretal language. Specifically, the December 20, 2022 judgment failed to set forth the specific amounts of the awards of past temporary total disability benefits, outstanding medical bills, Mr. Rayborn’s out-of-pocket medical expenses, and the credit owed to Continental Cement for any medical bills it previously paid.
In accordance with this court’s order, the appeal record was supplemented with an amended judgment signed on November 1, 2023. The amended judgment cured the deficiencies identified in the remand order and now contains appropriate decretal language. See La. C.C.P. art. 1918; Advanced Leveling & Concrete Solutions v. Lathan Company, Inc., 2017-1250 (La. App. 1st Cir. 12/20/18), 268 So.3d 1044, 1046 (en banc).
CONTINENTAL CEMENT’S APPEAL
In assignments of error nos. 1 and 2, Continental Cement asserts that the workers’ compensation court committed both legal and manifest error by finding 7that Mr. Rayborn proved an accident occurred as defined by La. R.S. 23:1021 and the applicable standards set forth by the Louisiana Supreme Court. Continental Cement also maintains, in its third assignment of error, that the lower court committed legal error by awarding benefits where there was no objective evidence of injury, in contravention of La. R.S. 23:1317(A). Finally, in assignment of error no. 4, Continental Cement contends that the workers’ compensation court committed legal and/or manifest error by finding that the termination of Mr. Rayborn’s benefits was arbitrary and capricious.
Applicable Law and Standard of Review
[1] Workers’ compensation laws provide coverage to an employee for personal injury by accident arising out of and in the course of employment. La. R.S. 23:1031(A). A workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Guy v. Kelps & Will Prop Shop, 2018-0956 (La. App. 1st Cir. 2/26/19), 272 So.3d 570, 575-76. Louisiana Revised Statutes 23:1021(1) defines "accident" as "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." [2] To the extent that Continental Cement asks this court to interpret "accident" as defined in La. R.S. 23:1021(1), this assignment of error presents a question of law, which we review de novo. See Jones v. State, 2022-01455 (La. 5/5/23), 362 So.3d 341, 344. However, the determination of whether an accident occurred is a finding of fact subject to the manifest error or clearly wrong standard of appellate review. See 8 Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); Bertrand v. Dow Chemical Co., 2005-1246 (La. App. 1st Cir. 12/20/06), 951 So.2d 263, 267-68, writ denied, 2007-0098 (La. 3/9/07), 949 So.2d 453.
Louisiana Revised Statutes 23:1021(1) was amended by Acts 1989, No. 454, eff. Jan. 1, 1990. Prior to the amendment, La. R.S. 23:1021 defined "accident" as "an unexpected or unforeseen event happening suddenly or violently, with or without human fault, and producing at the time objective symptoms of an injury."
[3] In Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La. 1992), the Louisiana Supreme Court held that a worker’s testimony alone may be sufficient to discharge his burden of proving that an accident occurred on the job and that he sustained an injury provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. See also Guy, 272 So.3d at 575-76. Corroboration of the worker’s testimony may be provided by the testimony of coworkers, spouses, friends, or by medical evidence. Guy, 272 So.3d at 576; Bruno, 593 So.2d at 361.
[4, 5] The workers’ compensation court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Bruno, 593 So.2d at 361; see also Dubois v. Walmart, 2023-0055 (La. App. 1st Cir. 9/21/23), 376 So.3d 854, 858–59. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether the factfinder’s conclusions were reasonable in light of the record viewed in its entirety. Rosell, 549 So.2d at 844; Dubois, 376 So.3d 854, 858-59; Marshall v. Palmar, 2019-1139 (La. App. 1st Cir. 5/4/21), 325 So.3d 382, 388-89, writs denied, 2021-00781, 2021-00772 (La. 10/1/21), 324 So.3d 1053, 1060.
Assignment of Error no. 1: "Accident" Pursuant to La. R.S. 23:1021(1)
Continental Cement asserts that the workers’ compensation court legally erred by finding that Mr. Rayborn proved that an accident occurred as defined in La. R.S 23:1021(1). Continental Cement contends that Mr. Rayborn’s assertion that he was injured "some kind of way" over the course of a week of climbing and 9jumping is not sufficient to satisfy the requirements of a specific, identifiable accident in the course and scope of employment. According to Continental Cement, a claimant is required to point to a specific moment that the injury was sustained or to a specific event or activity that caused the injury to prove that an "accident" occurred pursuant to La. R.S. 23:1021(1).
[6, 7] Louisiana courts interpret the work-related accident requirement liberally and have held that an interpretation of La. R.S. 23:1021(1), which excludes those workers who are worn down by their work rather than immediately crippled by it, is not consistent with the purpose of the workers’ compensation scheme. Bruno, 593 So.2d at 360; Dyson v. State Employees Group Benefits Program, 610 So.2d 953, 956 (La. App. 1st Cir. 1992); Begue v. Crossover, Inc., 2003-0267 (La. App. 1st Cir. 11/21/03), 868 So.2d 100, 104-05; and Barrilleaux v. Dryades Savings & Loan Association, 94-956 (La. App. 5th Cir. 3/28/95), 653 So.2d 690, 692, writ denied, 95-1041 (La. 6/2/95), 654 So.2d 1113. Indeed, it is well-settled that an "accident" exists when "heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition." Authement v. Wal-Mart, 2002-2434 (La. App. 1st Cir. 9/26/03), 857 So.2d 564, 571 (finding the clamant proved that an accident caused her work-related injury where the evidence established that she began experiencing pain in her shoulders after continuous lifting while on the job.)
In Bertrand, 951 So.2d at 268, this court found that the claimant’s work-related activity of repeatedly climbing and descending stairs, which caused a sudden and marked increase in his left knee pain, constituted an "accident" 10pursuant to La. R.S. 23:1021(1).
Here, the workers" compensation court cited Bertrand, 951 So.2d 263 and Dyson, 610 So.2d 953, as support for its conclusion that an accident occurred. We disagree with Continental Cement’s assertion that Bertrand is distinguishable and that we should decline to follow this "singular case." As evidenced by the numerous cases cited in this opinion, Bertrand is not an anomaly and does not contradict the plain wording of La. R.S. 23:1021(1) or the legislative intent behind the 1989 amendment. It is presumed the legislature is aware of how Louisiana courts have interpreted La. R.S. 23:1021(1), as amended; yet, it has taken no steps to overrule more than thirty years of Louisiana jurisprudence. See In re Succession of Morgan, 2022-01763 (La. 9/8/23), 370 So.3d 399, 406 (Weimer, J, dissenting, finding it notable that the legislature, which is presumed to know the law, has taken no steps to overrule pertinent jurisprudence or to amend the relevant statutes.)
The issue in Barrilleaux, 653 So.2d 690, was whether the claimant, Ruby Barrilleaux, sustained an injury that resulted from an "accident" as defined in La. R.S. 23:1021(1). Mrs. Barrilleaux’s low back pain began in June 1991, shortly after her job changed from a "desk job" to one that required her to climb ladders and pack, move, and stack large file boxes. Barrilleaux, 653 So.2d at 690-91. Mrs. Barrilleaux’s pain persisted through the fall of 1991, and, in November 1991, she turned to walk out of the room in her home when she experienced a "pop" and sharp pain in her back. She was diagnosed with a protruding disc in her lower back. Barrilleaux, 653 So.2d at 691. Mrs. Barrilleaux reported to her doctor that lifting and bending (performed at work) eventually took its toll, and her back pain became severe enough to seek medical help. Mrs. Barrilleaux’s doctor opined that she gradually weakened the disc area with "repetitive stuff she was doing at work." Barrilleaux, 653 So.2d at 692. Mrs. Barrilleaux’s employer denied her claim for benefits, maintaining that the disability-causing incident happened at home, and she did not suffer an "accident" as defined by workers’ compensation law. Barrilleaux, 653 So.2d at 692. The court of appeal concluded that the evidence supported the workers’ compensation court’s finding that Mrs. Barrilleaux was injured by a series of small strains and sprains to her back over a relatively short and clearly definable period f time. "There is a definite point in time at which the claimant’s job description changed and the injuries began[,] which is sufficient to constitute the occurrence of an identifiable, work-related event within the meaning of 11[La. R.S. 23:1021(1)]." Barrilleaux, 653 So.2d at 693.
See also Perilloux v. Brown & Root, Inc., 96-321 (La. App. 5th Cir. 10/1/96), 692 So.2d 1100, 1101-03, finding the claimant suffered a work-related "accident" under La. R.S. 23:1021(1). The claimant’s back pain began at work during a period when he was required to lift heavier weight than usual and became worse over a relatively short and clearly definable time period (approximately one week). The claimant did not feel "sudden pain" when lifting and could not relate his back pain to any event other than heavy lifting during the week. Even though the claimant offered only "conjecture" as to what caused his injury, the court found that the close proximity of the onset of pain satisfied the definition of a work-related accident and the analysis utilized in Barrilleaux, 653 So.2d 690. Perilloux, 692 So.2d at 1102.
In Hucke v. New Orleans Glass, 2003-1709 (La. App. 4th Cir. 2/11/04), 868 So.2d 166, 168, writ denied, 2004-0662 (La. 4/30/04), 872 So.2d 497, the claimant, Ernest Hucke, was required to carry a seventy-pound box up seven flights of stairs at the end of his workday. According to Mr. Hucke, "there was no particular moment when he realized he was injured, but during this activity, he felt something happen." Hucke, 868 So.2d at 168. Mr. Hucke’s employer denied workers’ compensation benefits, asserting that no compensable accident occurred. The court of appeal affirmed the workers’ compensation court’s judgment in favor of Mr. Hucke, noting that carrying approximately seventy pounds up seven flights of stairs was not normally part of Mr. Hucke’s job. His pain began the next morning, and his treating physicians causally related these actions to his injuries. "Even though [Mr. Hucke] did not know the exact moment of his injury, we find that he clearly suffered a work-related accident under La. R.S. 23:1021(1). There was a clearly defined incident that led to his injury, and this is sufficient to meet the statutory requirements." Hucke, 868 So.2d at 170.
12 See also Sears v. Berg, 99-457 (La. App. 5th Cir. 9/28/99), 742 So.2d 760, 765, finding the claimant suffered a work-related "accident" under La. R.S. 23:1021(1), even though he could not identify a single "event" that caused his injury.
[8] Therefore, we find no merit in Continental Cement’s argument concerning the interpretation of La. R.S. 23:1021(1).
The cases cited by Continental Cement to support its arguments regarding the interpretation and application of La. R.S. 23:1021(1) are distinguishable. For instance, in Qualls v. Stone Container Corp., 29,794 (La. App. 2d Cir. 9/24/97), 699 So.2d 1137, 1142, writ denied, 97-2929 (La. 2/6/98), 709 So.2d 736, the court found that no accident occurred where the evidence established that the claimant’s degenerative back condition was caused by repetitive micro traumas that occurred over a long period of time, through the course of his employment as a forklift operator. Mr. Rayborn’s left knee injury was not the result of years of micro traumas; instead, it occurred after a clearly defined incident.
Assignments of Error No. 2: Proof of an Accident
Continental Cement asserts that the workers’ compensation court manifestly erred by finding that Mr. Rayborn proved an accident occurred pursuant to the applicable standards set forth in Bruno, 593 So.2d at 361.
In its oral reasons for ruling, the workers’ compensation court expressly made "the specific factual finding that [Mr. Rayborn] is credible, and that the events after the accident corroborate his version of events." After thoroughly reviewing the evidence and testimony offered at trial, we find no manifest error in the workers’ compensation court’s conclusions.
[9] No evidence contradicts Mr. Rayborn’s testimony that he was repeatedly climbing and jumping the week before Thanksgiving 2018. Instead, Continental Cement points out that Mr. Rayborn’s "early medical records" do not document a work injury, and he paid for the initial medical expenses out-of-pocket. However, Mr. Rayborn testified that he advised the doctor at the Ochsner clinic on November 16, 2018 that he was jumping and climbing at work, and the record states that Mr. Rayborn and his doctor "discussed the etiology" of Mr. Rayborn’s knee pain. We disagree with Contiental Cement that the lack of express documentation by Mr. 13Rayborn’s physician is determinative, particularly since the records from Mr. Rayborn’s follow-up appointment and the records thereafter reflect Mr. Rayborn’s consistent account of what precipitated his left knee pain.
[10] Next, Continental Cement notes that Mr. Rayborn continued to work "without making a prompt report." This argument lacks merit. Generally, the surrounding circumstances of the case indicate what effect a court should give to the length of time a worker takes to report an accident. That a worker did not immediately report an accident does not necessarily cast serious doubt on the worker’s testimony. Trent v. Triad Electric & Controls, Inc., 2009-1192 (La. App. 3d Cir. 4/7/10), 34 So.3d 484, 490. See Hucke, 868 So.2d at 168, where Mr. Hucke did not tell his supervisor that he was injured, since initially he did not feel that he had suffered an injury. See also Sears, 742 So.2d at 763, where the claimant did not immediately report the accident, because he did not like to complain and hoped the pain would go away within a few days.
[11] Here, the evidence established that, although Mr. Rayborn’s pain persisted, he worked all day on Thursday, November 15, 2018, the day after his pain began. Mr. Rayborn recalled that he may have "worked a little while" on Friday, the day of his first appointment with the Ochsner clinic. He did not work the following week, when he was out of state, and reported the incident upon his return. We cannot say that working one to two days before reporting is sufficient to cast doubt on Mr. Rayborn’s testimony, particularly considering his initial belief that his pain was caused by a pulled muscle.
[12] Finally, Continental Cement points to Mr. Rayborn’s deposition testimony wherein he stated that he did not know what caused his knee pain. Mr. Rayborn was confronted with this testimony at trial. The workers’ compensation court 14heard this deposition testimony and also heard Mr. Rayborn’s unequivocal response at trial - "I know what caused my knee problems; working, climbing up and jumping down off those barges all week."
Continental Cement also cites a recorded statement purportedly given by Mr. Rayborn: however, the statement was not introduced into evidence at trial. Therefore, we do not consider this argument or the purported statement excerpt quoted in Continental Cement’s brief.
[13–15] To the extent that Mr. Rayborn’s trial testimony was inconsistent with this prior deposition testimony, the workers’ compensation court’s choice between two permissible views of the evidence cannot be manifestly erroneous. See Dubois, 376 So.3d 854, 858-59. Similarly, where there is conflict in the testimony, inferences of fact should not be disturbed upon review. Marshall, 325 So.3d at 388. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Marshall, 325 So.3d at 389.
Assignments of Error No. 3: Objective Evidence of Injury
Louisiana Revised Statutes 23:1317 pertinently states that all findings of fact by the workers’ compensation court
must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.
Continental Cement asserts that the workers’ compensation court legally erred in awarding benefits, because there was "no objective evidence of injury whatsoever" as documented within the records of the Ochsner clinic, and "to find that [Mr. Rayborn] was injured at work is 100% reliant upon listening to the claimant and believing him." Considering Continental Cement’s argument, we apply the manifest error standard to this assignment of error.
[16] We have already determined that the credibility determinations made by the workers’ compensation court are not manifestly erroneous. Mr. Rayborn’s medical 15records also contain objective evidence of symptoms. See La. R.S. 23:1317; Andrews v. Pine Hill Wood Co., 426 So.2d 196, 200 (La. App. 2d Cir. 1982), writ denied, 432 So.2d 267 (La. 1983) ("[T]he law requires, as a general proposition, that compensation claims be supported by objective and medically verifiable physical symptoms.") The record from Mr. Rayborn’s November 16, 2018 examination at the Ochsner clinic reflects a history of left knee trauma with documented swelling. Dr. Johnston’s review of Mr. Rayborn’s post-injury left knee MRI revealed severe chondromalacia to the patella and a small Baker’s cyst. According to Dr. Johnston, "This injury occurred during the week of November 12th through November 16th." An arthroscopic procedure was performed on Mr. Rayborn’s left knee on April 30, 2019, which revealed a grade 4 chondral defect with synovitis.
Dr. Espinoza’s diagnosis included left knee patellofemoral syndrome and patella chondromalacia. Dr. Schroeder also diagnosed Mr. Rayborn with left knee patellofemoral chondromalacia and noted "some objective evidence of left knee discomfort[,] including a 10 degree lack of range of motion as well as decreased muscle bulk" in Mr. Rayborn’s left quadricep and calf. Mr. Rayborn also consistently denied that he had left knee pain or other problems with his left knee prior to the week of repeated climbing and jumping while at work for Continental Cement.
Therefore, the workers’ compensation court’s factual findings are reasonable and supported by competent evidence in the record. This assignment of error lacks merit.
See Chaisson v. Cajun Bag & Supply Co., 97-1225 (La. 3/4/98), 708 So.2d 375, 381, recognizing that "competent evidence" required by La. R.S. 23:1317 is a more relaxed standard for the admissibility of evidence.
Assignment of Error no. 4: Termination of Benefits
In its final assignment of error, Continental Cement asserts that the workers’ 16compensation court erred by finding that the termination of Mr. Rayborn’s benefits was arbitrary and capricious and by awarding a penalty and attorney fees in favor of Mr. Rayborn.
[17] Louisiana Revised Statutes 23:1201(1) authorizes the assessment of a penalty and reasonable attorney fees when the employer or insurer discontinues payment of claims, when such discontinuance is found to be arbitrary, capricious, or without probable cause. Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. The crucial inquiry is whether the employer has articulated an objective reason for discontinuing benefits at the time it took that action. Bell v. SGS Petroleum Service Corp., 2019-1614 (La. App. 1st Cir. 12/10/20), 316 So.3d 515, 521-22. The determination of whether an employer should be cast with a penalty and attorney fees is essentially a question of fact, which cannot be reversed absent manifest error. Bell, 316 So.3d at 522. Here, the workers’ compensation court did not give specific reasons for finding that Continental Cement acted arbitrarily and capriciously; however, this factual finding is reasonably supported by the record.
The purpose of this provision is to discourage indifference and undesirable conduct by employers and insurers; therefore, it is essentially penal in nature and must be strictly construed. Bell, 316 So.3d at 522.
[18] In its notice of suspension of benefits, Continental Cement cited a dispute over compensability and specifically stated, "claimant is unable to identify specific accident." On appeal, Continental Cement maintains that it paid Mr. Rayborn’s compensation benefits until it had a "mountain of information" showing that this matter did not qualify as a compensable accident. In brief, Continental Cement also generally cites Mr. Rayborn’s medical records "documenting the information" provided to the Ochsner clinic and Drs. Espinoza, Schroeder, and Johnston. However, as set forth above, Mr. Rayborn’s medical records contain objective and 17corroborating evidence of injury in accordance with Bruno, 593 So.2d at 361. The evidence further shows that Mr. Rayborn’s left knee injury was contemporaneous with the definite point in time when he began repeatedly climbing and jumping while performing his work duties. This is sufficient to constitute the occurrence of an identifiable, work-related accident within the meaning of La. R.S. 23:1021(1). See Barrilleaux, 653 So.2d at 693; Perilloux, 692 So.2d at 1102. Therefore, we find no manifest error in the workers’ compensation court’s conclusion that Contiental Cement’s termination of Mr. Rayborn’s benefits was arbitrary and capricious and in its assessment of a $4,000.00 penalty and attorney fees against Continental Cement. For reasons set forth below, we amend the judgment and increase the amount of the award of attorney fees.
CLAIMANT’S ANSWER
Increase of Attorney Fee Award
Mr. Rayborn answered Continental Cement’s appeal, seeking an increase in the award of attorney fees, from $5,000.00 to $15,000.00. See La. C.C.R art. 2133.
[19–22] When attorney fees are awarded in a workers’ compensation case, they are deemed to be a penalty and the value of the attorney’s fees need not be proven. Terrebonne v. St. Tammany Parish Hospital, 2021-1212 (La. App. 1st Cir. 7/20/22), 347 So.3d 909, 918-19, citing Orgeron v. Tri-State Road Boring, Inc., 434 So.2d 65, 69 (La. 1983). The workers’ compensation court is allowed to call upon its own experience and expertise in determining the amount of time and effort that a lawyer has put into the preparation of a case. The amounts awarded in penalties and attorney fees are entitled to great discretion and will not be disturbed absent an abuse of discretion. Terrebonne, 347 So.3d 909, 915. Factors usually considered when fixing the amount of attorney fees to be awarded in workers’ compensation cases are (1) the degree of skill and the amount of work involved in the case, (2) the amount of the claim, (3) the amount recovered for the claimant, 18and (4) the amount of time the attorney devoted to the case. Terrebonne, 347 So.3d at 919.
[23] The record reflects that Mr. Rayborn’s counsel demonstrated a reasonable degree of skill and ability in prosecuting this matter on his client’s behalf and has devoted considerable time to this case. For instance, Mr. Rayborn’s counsel responded to and attended a preliminary hearing held in May 2022 at Continental Cement’s request pursuant to La. R.S. 23:1201.1 and obtained a favorable result when the workers’ compensation court ruled that Mr. Rayborn sustained an accident as defined in La. R.S. 23:1021(1). Mr. Rayborn’s counsel engaged in pre-trial discovery, including preparing for and attending Mr. Rayborn’s deposition noticed by Continental Cement. Counsel prepared for and attended trial and obtained considerable medical and indemnity benefit awards on behalf of Mr. Rayborn. After reviewing the record in its entirety and applying the appropriate factors, we find the attorney fee award is abusively low and increase the award to $7,500.00, the lowest reasonable amount. See Smith v. Quarles Drilling Co., 2001-251 (La. App. 3d Cir. 10/3/01), 801 So.2d 1128, 1130, writs denied, 2002-0080, 2002-0123 (La. 3/28/02), 811 So.2d 943, 945, citing Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La. 1976).
Mr. Rayborn was awarded $50,350.00 in indemnity benefits from June 29, 2021 through December 12, 2022 and future weekly indemnity benefits in the amount of $665.00 beginning on December 13, 2022 until further order of the workers’ compensation court. Mr. Rayborn was also awarded $1,484.20 in out-of-pocket medical expenses, $10,019.00 in outstanding medical expenses, and all ongoing reasonable and necessary medical treatment related to his left knee injury with Dr. Johnston, until further order of the workers’ compensation court.
Attorney Fee Award for Work Performed on Appeal
[24–26] Generally, an increase in attorney fees should be awarded when a party who was awarded attorney fees by the workers' compensation court is forced to and successfully defends an appeal. Champagne v. State, Louisiana State University, 2001-0242 (La. App. 1st Cir. 3/28/02), 819 So.2d 1059, 1066; Kilbourne v. Dixon Correctional Institute, 2022-0455 (La. App. 1st Cir. 11/4/22), 354 So.3d 725, 731, 19 writ denied, 2022-01765 (La. 2/7/23), 354 So.3d 669. An increase in attorney fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal necessitated more work on the part of the claimant’s attorney, provided that the claimant requests such an increase. Champagne, 819 So.2d at 1066. It is within the appellate court’s discretion to award or increase attorney fees for defending an appeal upon consideration of factors such as the skill exercised by the attorney and the amount of time and work reflected in the appeal. Locke v. MADCON Corp., 2022-0630 (La. App. 1st Cir. 12/22/22), 360 So.3d 519, 527, writ denied, 2023-00095 (La. 4/4/23), 358 So.3d 866.
[27] For these reasons, we find Mr. Rayborn is entitled to an additional award of attorney fees for successfully defending this appeal and find that an award of $2,500.00 is reasonable.
DECREE
We grant the relief requested by Darryl Rayborn, Sr., and amend the portion of the November 1, 2023 amended judgment that awarded $5,000.00 in attorney fees to Mr. Rayborn and increase the award to $7,500.00 in favor of Darryl Rayborn, Sr, and against Continental Cement Company, LLC and Ace Property and Casualty Insurance Company. The November 1, 2023 amended judgment is affirmed as amended by this court. We further award $2,500.00 as attorney fees to Mr. Rayborn for successfully defending this appeal and enter judgment in favor of Darryl Rayborn, Sr. and against Continental Cement Company, LLC and Ace Property and Casualty Insurance Company in the amount of $2,500.00. Costs of this appeal are assessed to Continental Cement Company, LLC and Ace Property and Casualty Insurance Company.
ANSWER TO APPEAL GRANTED. JUDGMENT AMENDED IN PART AND AFFIRMED AS AMENDED.