95 2498 La.App. 1 Cir. 6/28/96, Augustus v. St. Mary Parish School Bd.

• Decision Date: 28 June 1996
• Citation: 676 So.2d 1144
• Parties: 95 2498 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1144

676 So.2d 1144

95 2498 La.App. 1 Cir. 6/28/96, 111 Ed. Law Rep. 601

Stephanie AUGUSTUS v. ST. MARY PARISH SCHOOL BOARD.

No. 95 CA 2498.

Court of Appeal of Louisiana, First Circuit.

June 28, 1996.

Edward J. Cloos, III, Metairie, for Plaintiff/Appellee, Stephanie Augustus.

Wade A. Langlois, III, Gretna, for Defendant/Appellant, St. Mary Parish School Board.

Before CARTER and PITCHER, JJ., and WILLIAM F. KLINE, Jr., ¹ J. Pro Tem.

[95 2498 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal from a decision of a workers' compensation hearing officer, awarding plaintiff workers' compensation benefits, medical expenses, penalties, and attorney's fees.

FACTS

On November 1, 1994, twenty-nine-year-old plaintiff, Stephanie D. Augustus, was allegedly injured during the course and scope of her employment as a cafeteria technician for the St. Mary Parish School Board (School Board). While lifting several cases of Clorox and placing the Clorox on shelves in the cafeteria, plaintiff allegedly sustained injuries to her neck, shoulders, and back. Plaintiff did not work from November 2, 1994, to November 28, 1994, at which time she was released to return to work by Dr. Nick Accardo.

On January 12, 1995, plaintiff filed with the Office of Workers' Compensation a Disputed Claim for Compensation (Form 1008). Plaintiff claimed that she had sustained injuries which resulted in excess of seven days lost time and that she had a continuing disability. The School Board contended that plaintiff was not disabled and not entitled to workers' compensation benefits.

On July 20, 1995, the matter was tried before a workers' compensation hearing officer. On August 22, 1995, the hearing officer rendered a decision, finding that (1) plaintiff was injured during the course and scope of her employment with the School Board on November 1, 1994; (2) plaintiff was entitled to temporary total disability benefits in the amount of $86.00 per week from November 1, 1994, through November 28, 1994; (3) plaintiff was entitled to the payment of all medical bills which had been incurred, as well as medication and transportation expenses; (4) the School Board was arbitrary and capricious in its refusal to pay plaintiff workers' compensation benefits; and (5) plaintiff was entitled to penalties in the amount of $2,000.00 and attorney's fees in the amount of $2,000.00. The hearing officer specifically found that plaintiff failed to establish any disability after November 29, 1994. ²

[95 2498 La.App. 1 Cir. 3] The School Board appealed from the adverse decision, assigning the following specifications of error:

(1) The hearing officer was manifestly erroneous or clearly wrong in her decision of August 22, 1995, wherein it was found that the claimant, Stephanie Augustus, was injured during the course and scope of her employment with the St. Mary Parish School Board on November 1, 1994.

(2) The hearing officer was manifestly erroneous or clearly wrong in her finding that the claimant, Stephanie Augustus, was entitled to receive temporary total disability benefits from the defendant employer for the period of November 1 through November 28, 1994.

(3) The hearing officer was manifestly erroneous and clearly wrong in finding that the employer was arbitrary and capricious in this matter and/or in awarding a penalty in the amount of $2,000.00 and attorney's fees in the amount of $2,000.00.

(4) The hearing officer was manifestly erroneous and clearly wrong and/or committed legal error when she awarded plaintiff medical expenses when no medical expenses were proven at trial except $205.05.

ENTITLEMENT TO WORKERS' COMPENSATION BENEFITS

In order to recover workers' compensation benefits, a claimant must show that he received personal injury by accident arising out of and in the course and scope of his employment and that said injury necessitated medical treatment and/or rendered the employee disabled. Polk v. Babineaux's Plumbing, Inc., 628 So.2d 71, 74 (La.App. 3rd Cir.1993); Alfred v. Mid-South Machine, Inc., 594 So.2d 937, 939 (La.App. 3rd Cir.1992).

1. Accident During Course and Scope of Employment

The claimant has the burden of establishing the occurrence of an accident and the causal relationship between the accident and the resulting disability by a preponderance of the evidence. Manson v. City of Shreveport, 577 So.2d 1167, 1169 (La.App. 2nd Cir.), writ denied, 580 So.2d 928 (La.1991). Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Patterson v. GNB Battery, Inc., 569 So.2d 640, 642 (La.App. 2nd Cir.1990), writ denied, 573 So.2d 1134 (La.1991). Therefore, it must be determined that his employment somehow caused or contributed to his disability; however, it is not necessary that the exact cause be found. Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320, 324 (La.1985).

[95 2498 La.App. 1 Cir. 4] In determining whether the claimant has discharged his burden of proof, the trier of fact should accept as true a witness's uncontradicted testimony, even though the witness is a party, absent circumstances casting suspicion on the reliability of that testimony. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992); Smith v. Grand Isle Shipyard, 95-0259 p. 1 (La.App. 1st Cir. 10/6/95); 671 So.2d 415, writ denied, 95-2709 (La. 1/26/96); 667 So.2d 524. A hearing officer's determinations as to whether the claimant's testimony is credible and whether the claimant has discharged his burden of proof are factual determinations which will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Andrews v. Music Mountain Water Company, 25,634 (La.App. 2nd Cir. 4/6/94); 637 So.2d 571, 574; writ denied, 94-1190 (La. 6/24/94); 640 So.2d 1356; Shelton v. Wall, 614 So.2d 828, 832 (La.App. 2nd Cir.1993).

2. Temporary Total Disability

Pursuant to LSA-R.S. 23:1221(1)(c), a claimant has the burden of proving his temporary total disability by clear and convincing evidence. ³ Penn v. Wal-Mart Stores, Inc., 93-1262 p. 3 (La.App. 3rd Cir. 6/15/94); 638 So.2d 1123, 1126, writ denied, 94-1835 (La. 10/28/94); 644 So.2d 651; Polk v. Babineaux's Plumbing, Inc., 628 So.2d at 74. In the absence of clear and convincing evidence that the employee is physically unable to engage in any employment, the claimant's demand for temporary total disability benefits must fail. Tanner v. International Maintenance Corporation, 602 So.2d 1133, 1137 (La.App. 1st Cir.1992).

[95 2498 La.App. 1 Cir. 5] The issue of disability within the framework of the workers' compensation law is a legal rather than a purely medical determination. Pollock v. Louisiana Insurance Guaranty Association, 587 So.2d 823, 825 (La.App. 3rd Cir.1991). The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. Taylor v. Louisiana-Pacific Corporation, 602 So.2d 48, 51 (La.App. 3rd Cir.), writs denied, 606 So.2d 541 and 542 (La.1992). The hearing officer is afforded great latitude in making credibility determinations and in weighing testimony. Harris v. Bronco Construction Company, 93-2139 p. 4 (La.App. 1st Cir. 10/7/94); 644 So.2d 805, 807, writ denied, 94-2740 (La. 1/6/95); 648 So.2d 931. The determination of an expert's credibility is a factual question subject to the manifest error/clearly wrong standard of review. Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1277 (La.1991); Harris v. Bronco Construction Company, 644 So.2d at 807; Cheramie v. Horst, 93-1168 (La.App. 1st Cir. 5/20/94); 637 So.2d 720, 723. Moreover, after weighing and evaluating all of the evidence, the fact finder is free to accept or reject the opinions expressed by the experts. Harris v. Bronco Construction Company, 644 So.2d at 807; Hoyt v. State Farm Mutual Automobile Insurance Company, 623 So.2d 651, 659 (La.App. 1st Cir.), writ denied, 629 So.2d 1179 (La.1993).

The question of whether the claimant is entitled to temporary total disability benefits is ultimately a question of fact, and the trial court's resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless clearly wrong. Polk v. Babineaux's Plumbing, Inc., 628 So.2d at 74; Taylor v. Louisiana-Pacific Corporation, 602 So.2d at 51. Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. Shelton v. Wall, 614 So.2d at 832. When the trier of fact's findings are reasonable in light of the entire record, an appellate court may not reverse a choice between two permissible views of the evidence. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882-83 (La.1993); Shelton v. Wall, 614 So.2d at 832. The issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one in view of the record in its entirety. Stobart v. State, Department of [95 2498 La.App. 1 Cir. 6] Transportation and Development, 617 So.2d at 882; Harris v. Bronco Construction Company, 644 So.2d at 807.

The testimony in the instant case included that of plaintiff; her supervisor, Martha Dangerfield; the personnel director of the School Board, Roland Verrett; Dr. Nick Accardo; and private investigators, Anthony Rushing and Robert Isaac. The documentary evidence consisted of the following: the Lakewood Hospital emergency room report and bill; video surveillance of plaintiff, and plaintiff's medical records from Lakewood Hospital.

Plaintiff testified that she was employed by the School Board on a part-time basis as a cafeteria technician at Berwick Elementary School. Just before 10:00 a.m. on Tuesday, November 1, 1994, plaintiff was washing dishes in the cafeteria when the...