93-1537 La.App. 3 Cir. 6/1/94, Handy v. Richard's Cajun Country Food

• Decision Date: 01 June 1994
• Parties: 93-1537 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 761

640 So.2d 761

93-1537 La.App. 3 Cir. 6/1/94

Delma HANDY, Plaintiff-Appellant, v. RICHARD'S CAJUN COUNTRY FOOD, Defendant-Appellee.

No. 93-1537.

Court of Appeal of Louisiana, Third Circuit.

June 1, 1994.

Aaron W. Guidry, Philip Collins Kobetz, Lafayette, for Della Handy.

James Alan Jordan, Baton Rouge, for Richard's Cajun Country Food.

Before DOUCET and LABORDE, JJ., and BERTRAND, ¹ J. Pro Tem.

LABORDE, Judge.

Plaintiff appeals the hearing officer's finding her no longer entitled to compensation benefits. She claims that the hearing officer neglected to consider whether the odd-lot doctrine is applicable to her accident, which occurred in 1988. She is correct, and we reverse.

Facts

Claimant, born October 12, 1944, was injured in the course and scope of her employment as a boudin stuffer when she slipped and fell October 10, 1988, at her place of employment. She was primarily treated by Dr. Thomas Butaud, who performed arthroscopic surgery on each of claimant's knees. The orthopedist eventually released her from his care with a 15% disability to each knee. He concluded that she should be able physically to perform in a sedentary position with rest periods and lifting of no more than thirty pounds.

Through her August 26, 1993 hearing date, U.S. Fire Insurance Company paid claimant benefits of $128.00 per week, or two-thirds of claimant's pre-disability earnings.

The question at hearing was whether claimant remained entitled to benefits. In support of her case for continued relief, claimant offered her own testimony and that of a vocational expert. [93-1537 La.App. 3 Cir. 2] Plaintiff's expert concluded that claimant would be forever disabled, mainly due to her limited mental abilities. This expert's opinion was based on interviews with claimant less than one week prior to hearing and upon reviewing the results of standard aptitude tests that he had administered to claimant. The tests demonstrated that claimant possessed no more than third grade literacy and very modest intelligence. Additionally, plaintiff testified that each of the hypothetical employment prospects claimed by the defense to exist in reality did not. In fact, her uncontradicted testimony revealed that each of the prospective employers refused to even permit claimant, a simple, uneducated woman who only speaks English outside the home, the opportunity to apply for the positions upon her presentation.

Defendant's insurer maintained that claimant was no longer entitled to benefits. It supported its position with the testimony of an in-house vocational rehabilitation consultant, who testified that claimant was capable of becoming employed in any of several positions identified in a 1991 job survey and matched against a three year old medical report. This testimony was permitted over claimant's objections, notwithstanding the consultant's admission that she had not seen claimant in four years and had administered no tests to evaluate claimant's mental competence for any but the most menial of jobs. ²

By judgment and abbreviated reasons dated October 5, 1993, the hearing officer found that the employer had demonstrated that claimant was able to earn more than 90% of her preinjury wages and was no longer entitled to compensation benefits.

LAW

Credibility vs. Weight of Evidence

Practically speaking, an appellant's right to redress is limited largely to cases in which the hearing officer misconstrues the law or clearly errs on the facts.

[93-1537 La.App. 3 Cir. 3] The Supreme Court has summarized the manifest error rule applicable to workers compensation proceedings this way:

Despite the liberal construction of the statute afforded the worker in a compensation action, the worker's burden of proof is not relaxed. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). Rather, as in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Id.; Nelson [v. Roadway Express 588 So.2d 350 (La.1991) ], supra. A worker's testimony alone may be sufficient to discharge this burden of proof, 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. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers' Compensation, § 253 (2d Ed.1980). Corroboration of the worker's testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson, supra. Corroboration may also be provided by medical evidence. West, supra.

[5, 6] In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness's uncontradicted testimony, although the witness is a party, absent "circumstances casting suspicion on the reliability of this testimony." West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court's determinations as to whether the worker's testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farms, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases). Indeed, the manifest error/clearly wrong standard of appellate review applies in compensation actions even when the trial court's decision is based solely upon written reports, records or depositions. Virgil v. American Guarantee and Liability Insurance Co., 507 So.2d 825 (La.1987).

Attempting to give meaning to the nebulous terms "clearly wrong" and "manifest error," we recently enunciated the following general principles that govern an appellate court's power to reverse a trial court's factual findings:

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 fact-finder 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. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact-finder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted and emphasis supplied).

As reflected by the underscored language above, in Rosell, supra, we identified two factors that limit the deference due the trier of fact. In West, supra, we identified a third factor especially apt in compensation actions: "the appellate court is not required by [the manifest error/clearly wrong] principle to affirm the trier of fact's refusal to accept as credible uncontradicted testimony ... where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles." West, 371 So.2d at 1150; See Thomas v. RPM Corp., 449 So.2d 18, 21 (La.App. 1st Cir.), writ denied, 450 So.2d 965 (La.1984).

Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992) (Emphasis in original).

[93-1537 La.App. 3 Cir. 4] The manifest error rule applies to fact findings concerning a worker's disability, Landry v. Central Industries, Inc. 592 So.2d 478, 480 (La.App. 3d Cir.1991), writ denied, 593 So.2d 381 (La.1992), whether the fact finder is a judge or a hearing officer. Key v. Insurance Company of North America, 605 So.2d 675 (La.App. 2d Cir.1992). Even though an appellate court may feel its own evaluations of credibility and reasonable inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). In application, this means that the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one, after reviewing the record in its entirety. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987); Rosell, supra; Stobart v. State Through DOTD, 617 So.2d 880, 882 (La.1993).

Conversely, the same deference does not attach to a trial court or hearing officer who measures a set of facts with an inappropriate legal gauge. (In light of the great deference paid the factfinder, it is difficult to exaggerate the significance which attaches to the factfinder's proper application of substantive law.) For this reason, courts on occasion have noted that the staple question found in workers compensation proceedings, whether a worker is disabled, constitutes a legal rather than a purely medical determination. See, e.g., DeGruy v. Pala, Inc., 525 So.2d 1124, 1133 (La.App. 1st Cir.), writ denied, 530 So.2d 568 (La.1988).

Substantive Law

An exhaustive review of the judgment, reasons, and hearing transcript leads to the unmistakable impression that the hearing officer did not consider the odd-lot doctrine's applicability to the case. The workers compensation law in force on the date of the accident governs work-related injuries and legal questions arising therefrom. Behmke v. K-Mart Corp., 581 So.2d 291, 295 (La.App. [93-1537 La.App. 3 Cir. 5] 5th Cir.1991).

Temporary Total Disability

LSA-R.S. 23:1221(...