Pizzati v. DS Servs. of Am., Inc.

336 So.3d 943

David PIZZATI

v.DS SERVICES OF AMERICA, INC. and Safety National Casualty Corporation

NO. 2021-CA-0344

Court of Appeal of Louisiana, Fourth Circuit.

MARCH 23, 2022

Jean-Marc Bonin, Alexandre E. Bonin, R. Christian Bonin, BONIN LAW, 4224 Canal Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT

Keith J. Landry, ALLEN & GOOCH, A Law Corporation, 2000 Kaliste Saloom Road, Suite 400, P.O. Box 81129, Lafayette, LA 70598-1129, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Rosemary Ledet, Judge Tiffany Gautier Chase, Judge Dale N. Atkins )

Judge Dale N. Atkins

This is a workers’ compensation case. The principal issue presented on appeal is whether the Office of Workers’ Compensation (hereinafter "OWC") erred in finding that the claimant/employee, David Pizzati (hereinafter "Claimant"), failed to meet his burden of proving that he sustained a work-related accident on March 17, 2020. Claimant appeals from two interlocutory judgments and a final judgment rendered by the OWC on January 25, 2021. One of the interlocutory judgments granted the "Motion to Strike Claimant's Pre-Trial Statement" filed by Claimant's employer, DS Services of America, Inc., (hereinafter "DS Services"), and its insurer, Safety National Casualty Corporation (hereinafter "Safety National"); and the other interlocutory judgment denied Claimant's "Opposed Motion to Continue Trial."¹ The final judgment, in pertinent part, determined that Claimant failed to prove a compensable accident within the course and scope of his employment.²

Exhibits admitted into evidence proved Claimant sustained a compensable accident. Hence, the OWC committed manifest error in finding that Claimant failed to prove a compensable work-related accident. Having determined that Claimant proved a compensable accident moots review of the interlocutory judgments for error. Accordingly, for the following reasons, we reverse the final judgment as to Claimant's failure to prove a compensable accident, and hereby remand the matter to the OWC to permit Claimant to file any other workers’ compensation claims arising out of his March 17, 2020 accident as permitted by the workers’ compensation statutes.

FACTUAL AND PROCEDURAL HISTORY

March 17, 2020 Injury and Initial Treatment

The record and exhibits admitted into evidence established the following facts. In March 2020, DS Services employed Claimant as a route sales representative, which job included the task of transporting loads of water products to businesses and residences. On March 17, 2020, Claimant notified his DS Services supervisor, Jeff Sullivan (hereinafter "Mr. Sullivan"), that he experienced a work-related injury to his lower back that day. A form titled "Workers Compensation – First Report of Injury or Illness," which was prepared by Claimant on March 17, 2020, provided that "[Claimant] alleges that approx[imately] 4 hours ago he stood up after sitting down for approx[imately] 15 minutes while planning out his route and he felt pain to his lower back which has worsened throughout the day."

After Claimant notified Mr. Sullivan of his injury on March 17, 2020, Mr. Sullivan advised Claimant to go for treatment at Concentra Medical Centers (LA) (hereinafter "Concentra"). That same day Claimant reported to Dr. Lawrence Counts, M.D., (hereinafter "Dr. Counts") at Concentra and presented with right-sided back pain. The "History of Present Illness" section of Dr. Counts’ report from Claimant's March 17, 2020 visit provided that "[t]his injury is the result of [a patient] with [a history of] sciatica [who] developed acute right low back pain radiating down his right leg and glute. It occurred while at work." Per the report, Dr. Counts "advised [Claimant] to follow [ ] prescribed work restrictions to avoid the risk of prolonged injury and worsening/reoccurrence of his current injury[.]" Thus, Claimant returned to work on restricted duty.

April 8, 2020 Notice of Layoff

On April 8, 2020, Claimant received from DS Services a "Notice of Layoff" letter, which advised that he had been laid off because of "changes in business conditions." The letter explained that Claimant's last day of work was that day, April 8, 2020, and that his layoff was effective April 10, 2020. Additionally, the letter advised that Claimant would be eligible for unemployment benefits.

May 26, 2020 Filing of Disputed Claim for Compensation

Thereafter, on May 26, 2020, Claimant filed a Louisiana Workers’ Compensation Disputed Claim for Compensation (Form 1008) (hereinafter "1008 Form"),³ wherein he alleged that he injured his lower back on March 17, 2020. On the 1008 Form, Claimant stated he was lifting and carrying water products on the morning of the accident and that he experienced the onset of pain in his lower back while stepping off of his work vehicle. He advised that a bona fide dispute existed because no wage benefits had been paid; his disability status was temporary total disability (hereinafter "TTD")⁴ ; and that he sought all penalties, attorney's fees, costs, and interest as allowed by law for the failure of DS Services and Safety National (hereinafter collectively "Employer") to pay wage benefits. Claimant did not allege any dispute(s) involving his medical treatment or choice of physician. Additionally, Claimant listed his average weekly wage as $1,425.00 and his compensation rate as $688.00 per week.

July 6, 2020 Answer and Pre-Trial Statement Filed by Employer

In an Answer filed on July 6, 2020, Employer denied the general allegations of Claimant's 1008 Form. Also on July 6, 2020, Employer filed a Pre-Trial Statement, wherein Employer stipulated that Claimant was an employee on the date of the alleged accident. In the Pre-Trial Statement, Employer listed the issues to be litigated as including whether Claimant was injured in a work accident; the extent of the alleged injury and any on-going disability; and Claimant's entitlement to TTD benefits.

September 3, 2020 Scheduling Conference

The OWC conducted a Scheduling Conference on September 3, 2020. Pursuant to that conference, the OWC ordered scheduling deadlines, which included the following:

a. TELEPHONE Pre-Trial Conference is/is not being scheduled. If one is desired, a motion can be sent in requesting it to be set.

b. AMENDMENT to pleading date: 60 days prior to TRIAL.

c. DISCOVERY CUT-OFF COMPLETION date: 45 days prior to TRIAL.

d. PRE-TRIAL STATEMENT due date: Pre-Trial statements shall be filed by the parties in accordance with the Louisiana Workers’ Compensation Administration Hearing Rules: 45 days prior to TRIAL.

e. VOLUNTARY PRE-TRIAL MEDIATION is set [for] October 26, 2020[,] at 11:00 a.m.

f. TRIAL is set for December 11, 2020[,] at 9:00 a.m. Motions to continue trial on the merits shall be filed in accordance with the Louisiana Workers’ Compensation Administration Hearing Rules and the Louisiana Code of Civil Procedure. In the event the trial on the merits is continued, all scheduling deadlines set forth above shall be applicable without further order.

October 7, 2020 Deposition of Claimant

Employer deposed Claimant on October 7, 2020. During the deposition, Claimant testified that, on March 17, 2020, "[he] walked out [his] truck like [he] normally do[es], and [he] felt a sharp pain and it was unbearable. It was worse than before.⁵ [He] did continue to work the rest of the day." Claimant explained that at the end of his shift, he reported the pain to Mr. Sullivan, who directed him to go to Concentra, and that he went to Concentra as advised on the same day as the accident. Additionally, Claimant testified that he eventually discontinued treatment with Concentra and began receiving treatment at LA Health Solutions. He testified that he provided the same information about the accident and his pain to LA Health Solutions as he did to Concentra.

Regarding his ability to work, Claimant disclosed that he had returned to work as of August 2020. He testified that he earned $1,700.00 per week as a general manager of Creole Investments, a company he co-owned.

Claimant also testified that he applied for unemployment benefits roughly two days after he was laid off. He testified that he began receiving weekly unemployment benefits from May 2020 through the end of July 2020 at a rate of $847.00 per week. Claimant explained that, after July 2020, he started to earn $1,700.00 per week from his aforementioned job at Creole Investments.

October 27, 2020 Pre-Trial Statement Filed by Claimant

The parties attended a voluntary pre-trial mediation conference on October 26, 2020, at which they did not resolve their differences. The following day, October 27, 2020, Claimant fax-filed his Pre-Trial Statement. Claimant's Pre-Trial Statement included the following:

II. ISSUES TO BE LITIGATED

A. Whether Claimant was involved in an on the job accident on March 17, 2020[,] that caused or aggravated the injuries for which he continues to suffer.

B. Whether Employer is required to pay TTD or [Supplemental Earnings Benefits (hereinafter "SEB")] indemnity benefits from the time benefits were forfeited.

C. Whether Employer is required to pay all outstanding medical bills.

D. Whether Employer is required to pay all future medical treatment related to Claimant's injury.

....

III. STATEMENT OF THE CASE

A. On March 17, 2020, Claimant, David Pizzatti, injured his lower back in an accident while in the course and scope of his employment.

B. Claimant is unable to return to the same type of work which he was capable of prior to the accident.

C. Employer is liable for paying all reasonable and necessary medical care associated with Claimant's lower back injury.

D. Employer was arbitrary and capricious in denying medical treatment and indemnity benefits.

November 9, 2020 Motion to Strike Claimant's Pre-Trial Statement

On November 9, 2020, Employer filed a "Motion to Strike Claimant's Pre-Trial Statement" (hereinafter "Motion to Strike"). In the Motion to Strike, Employer argued as untimely those issues in Claimant's Pre-Trial...