96-443 La.App. 3 Cir. 11/20/96, Aymond v. R.J. Jones & Sons
| Decision Date | 20 November 1996 |
| Citation | 690 So.2d 769 |
| Parties | 96-443 La.App. 3 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Ralph W. Kennedy, Alexandria, for Marshall J. Aymond.
Skipper Maurice Drost, Sulphur, for R.J. Jones & Sons.
Before DOUCET, C.J., and SAUNDERS and AMY, JJ.
[96-443 La.App. 3 Cir. 1] AMY, Judge.
This is a worker's compensation case. The hearing officer found that plaintiff, Marshall Aymond, was entitled to temporary total disability benefits, supplemental earnings benefits, continuing medical benefits, statutory penalties of twelve percent on all amounts due, and attorney's fees in the amount of $2,500.00. Defendants, R.J. Jones & Sons, the employer, and its worker's compensation carrier, the Insurance Company for the State of Pennsylvania, appeal the hearing officer's ruling. For the reasons which follow, the decision of the hearing officer is affirmed.
In mid-April 1994, Marshall Aymond, who was employed by R.J. Jones & Sons as a truck driver, allegedly injured his lower back while loading plywood and "blackout" into a truck. The defendants began paying him worker's compensation benefits from the date of the alleged work-related accident until October 5, 1994. Subsequently, Aymond filed suit against the defendants, requesting reinstatement of benefits, medical expenses, penalties, and attorney's fees.
[96-443 La.App. 3 Cir. 2] A hearing on the merits was held on September 28, 1995. At the start of the hearing, the parties stipulated that: (1) Aymond was employed with R.J. Jones & Sons at the time of the alleged work-related accident; (2) temporary total disability [TTD] benefits in the amount of $150.01 per week were paid to Aymond through October 5, 1994; and (3) in lieu of medical testimony, all medical records were admitted jointly and were complete to the best of their knowledge.
On October 12, 1995, the hearing officer ruled that Aymond was entitled to (1) TTD benefits in the amount of $99.66 per week through October 25, 1994; (2) supplemental earnings benefits effective October 26, 1994, until such time defendants provide vocational rehabilitation services to determine job availability and medical recommendations of Dr. Beurlot are followed; (3) continuing medical benefits for treatment which is reasonable and necessary and work related; and, (4) statutory penalties and $2,500.00 in attorney's fees for the defendants' unjustified termination of benefits.
The defendants appeal from that ruling and assert that the hearing officer erred in: (1) finding that Aymond proved there was a compensable work-related accident; (2) finding that Aymond was entitled to TTD benefits; and (3) awarding penalties, attorney's fees and costs. The defendants do not assign as error the award of Supplemental Earnings Benefits or continuing medical benefits.
The defendants contend that the hearing officer erred in finding that Aymond sustained his burden of proving that he suffered a work-related accident because they contend that "[t]he evidence presented by claimant leaves the issue of the source or [96-443 La.App. 3 Cir. 3] cause of the injury to speculation or conjecture as the objective physical evidence contradicts his story."
Louisiana courts have recognized that La.R.S. 23:1031 requires a worker's compensation claimant to initially establish " 'personal injury by accident arising out of and in the course of his employment.' " Bruno v. Harbert International, Inc. 593 So.2d 357, 360 (La.1992).
An accident, for the purpose of worker's compensation, is defined in La.R.S. 23:1021(1) as follows:
"Accident" means 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.
In order for a claimant to be entitled to recover under worker's compensation, he must establish by a preponderance of evidence that an accident occurred on the job site and that an injury was sustained. See, e.g., Garner v. Sheats & Frazier, 95-39 (La.App. 3 Cir. 7/5/95); 663 So.2d 57; Griffin v. South Central Bell, 93-1394 (La.App. 3 Cir. 10/5/94); 645 So.2d 706; Baker v. Conagra Broiler Co., 93-1230 (La.App. 3 Cir. 5/4/94); 640 So.2d 494, writ denied, 94-1435 (La.9/23/94); 642 So.2d 1289; Borel v. Dynamic Offshore Contractors, 626 So.2d 565 (La.App. 3 Cir.1993), writ denied, 93-2993 (La.1/28/94); 630 So.2d 801; Coley v. Wilson Oil Co., Inc., 620 So.2d 445 (La.App. 3 Cir.1993); Bruno, 593 So.2d 357; Holiday v. Borden Chemical, 508 So.2d 1381 (La.1987). "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." Garner, 663 So.2d at 60. (Citations omitted.) Coley, 620 So.2d at 450. Additionally, a trial court's determination as to whether a compensable injury was suffered is a question of fact and will not be disturbed unless manifestly erroneous or clearly wrong. Dew v. V.I.S., Inc., 95-141 (La.App. 3 Cir. 11/2/95); 664 So.2d 693; Borel, 626 So.2d 565; Coley, 620 So.2d 445; Bruno, 593 So.2d 357.
The manifest error test requires the reviewing court to consider the record as a whole to ascertain whether the trier of fact's findings constituted manifest error. Since the trier of fact's findings are accorded great weight on appeal, the Louisiana Supreme Court has announced a two-part test for appellate courts to reverse under the manifest error standard of review. First, the appellate court must conclude from the record that a reasonable factual basis does not exist for the trier of fact's findings. Second, the appellate court must further determine that the findings were clearly wrong based on the record. Stobart v. State through DOTD, 617 So.2d 880 (La.1993).
Aymond testified that he was employed as a truck driver for R.J. Jones & Sons, and that his duties included loading into a truck the materials that he was to deliver. Aymond stated that he injured his lower back in mid-April 1994 while loading building supplies and material into a truck to be delivered to Jena, Louisiana. He admitted that nobody was present to witness the alleged accident. Aymond further acknowledged that he had previously injured his lower back in November 1993, however, he noted that that injury did not cause him to miss any work. When Aymond was asked to describe his accident, he replied:
[I] picked up three sheets of [plywood and blackout] and I had to raise it up and then swing it, and about ... the fourth time I did it and when I swung like this it--I had a very sharp pain and I just dropped. And finally I got up again and I went and told Mike [Aymond's supervisor], I said, Mike, I said, it hit me again.
Aymond was uncertain whether or not he was able to complete the assigned delivery.
[96-443 La.App. 3 Cir. 5] Aymond testified that he immediately reported his injury to his supervisor. James Jones, secretary/treasurer for R.J. Jones & Sons, testified that Aymond caused a report, dated April 26, 1994, to be produced by the warehouse supervisor concerning the work-related accident.
Jones testified concerning the post-work-related accident procedures followed at R.J. Jones & Sons. When asked about this accident procedure, Jones replied:
The lady in the front office handles the paperwork of the claim, usually the warehouse supervisor fills out what I call an accident report, that's a preliminary report. And that report authorizes them to go to--we were using Cabrini Occupational Center, we're now using Rapides General. When the report is made out they are instructed to go to the Occupation Center for treatment, then we go ahead and finish the paperwork on to the insurance company. The secretary in the front office handles the paper work.
Aymond testified that he went to the emergency room at Rapides General Hospital for treatment on the day of the accident. However, medical records reveal that Aymond was treated in the emergency room at Rapides General Hospital in Alexandria on April 19, 1994. The medical records substantiate that Aymond, on that visit, complained of urinary frequency, urgency and loss of control, as well as intermittent lower back pain. During the emergency room visit, Aymond testified that the emergency room doctor administered a shot because he was unable to lay down on the examining table. Also, several x-rays of Aymond's lumbar spine were taken during this emergency room visit which showed degenerative changes.
On April 26, 1994, Dr. Richard Texada, a urologist, examined Aymond in connection with his urologic problems. In his progress report dated April 26, 1994, Dr. Texada's history reveals that Aymond was "seen in the Rapides Emergency room about a week ago for back pain" and "[a]pparently the patient was said to have injured his back several weeks or more ago at work." Dr. Texada treated Aymond from April 26, 1994 through February 16, 1995.
[96-443 La.App. 3 Cir. 6] The hearing officer observed that Aymond testified regarding the incident; Jones corroborated Aymond's testimony that an injury was reported to Aymond's supervisor; Jones further testified that the appropriate accident report was completed regarding the accident; and lastly, no evidence was presented to contradict Aymond's testimony. The...
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