Bonlton v. B E & K Const.

• Decision Date: 21 June 2002
• Docket Number: No. 2001 CA 0486.,2001 CA 0486.
• Citation: 822 So.2d 29
• Parties: Frank BOLTON, Jr. v. B E & K CONSTRUCTION.
• Court: Court of Appeal of Louisiana — District of US

822 So.2d 29

Frank BOLTON, Jr. v. B E & K CONSTRUCTION.

No. 2001 CA 0486.

Court of Appeal of Louisiana, First Circuit.

June 21, 2002.

COPYRIGHT MATERIAL OMITTED

Barry Bolton, Bogalusa, Counsel for Plaintiff/Appellant Frank Bolton, Jr.

Lawrence B. Frieman, Metairie, Counsel for Defendant/Appellee B E & K Construction.

Before: FITZSIMMONS, DOWNING, and LANIER¹, JJ.

LANIER, J.

The employee, Frank Bolton, Jr. (Bolton), claims he was injured on August 13, 1998, while in the course and scope of his employment with defendant, B E & K Construction (BE & K). Bolton's claim for workers' compensation benefits was denied by BE & K on the basis that no accident had occurred. The Office of Workers' Compensation (OWC) Judge found as a fact that Bolton failed to prove he suffered an accident while in the course and scope of his employment and denied the claim. Bolton took this devolutive appeal.

FACTS

Bolton was hired by BE & K on August 10, 1998 as a laborer. That same day he was required to submit to a drug test as part of the hiring process. A urine sample was collected from Bolton and sent to Laboratory Specialists, Inc. (LSI) for analysis.

Before the results of the drug test were received, Bolton began work at BE & K. His duties included using a jackhammer to break up concrete, picking up broken pieces of concrete, loading them into a wheelbarrow, rolling the wheelbarrow up an incline and dumping the concrete in a pile for dump trucks to haul away. Bolton completed the four-day work week by working 10 hour shifts on August 10, 11, 12, and 13. During this period of time. Bolton never complained to anyone about being injured.

After the weekend, Bolton returned to work on Monday, August 17. That morning, Richard Levert (Levert), BE & K's office manager at the site, received a phone call from LSI with the results of Bolton's drug test. The test indicated that Bolton had tested positive for cocaine. Consequently, Levert summoned Bolton to the office to terminate his employment. When he entered the office, Bolton informed Levert that he hurt his back the previous week.

Bolton asserts that he injured his back and neck in an accident that occurred on August 13, 1998, while he was performing his duties at BE & K. He admits that he did not report the accident at the time it occurred. He further concedes that the first time he ever informed anyone about his injury was when he was summoned to the office on August 17. Bolton testified that he had no idea why he was called into the office, but once there, he immediately reported his accident to Levert. Levert then informer Bolton that he was being terminated due to his positive drug test. Bolton denied using any drugs prior to taking the test.

ADMISSIBILITY OF EVIDENCE (Assignment of Error 4)

Bolton contends the OWC judge committed legal error by admitting into evidence the LSI drug test report and other medical evidence. If the OWC judge committed evidentiary error that interdicted his factual decision, this court, would conduct a de novo review rather than a manifest error review. Gordan P. Sandersans Farms, 96-1587, p. 2 (La.App. 1 Cir. 5/9/97), 693 So.2d 1279, 1282. Thus, the evidentiary issue must be addressed first.

Workers' compensation judges are not strictly bound by the technical rules of evidence. La. B.S. 23:1317(A). The applicable statute only requires that all findings of fact be based upon "competent evidence." Id. In other words, the OWC judge has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence. Chaisson r. Cajun Bag & Supply Co., 97-1225, p. 10 (La.3/4/98), 708 So.2d 375, 381. The legislative requirement that a hearing officer's factual findings be based upon competent evidence is the safeguard that ensures that the factual findings are made on evidence that has some degree of reliability and trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility. Id. Therefore, when a reviewing court evaluates the factual findings of a hearing officer under the manifest error standard, it must determine whether the factual findings are reasonable and supported by competent evidence in the weord. Id. If so, then the reviewing court must affirm them. Id.

However, such a relaxed evidentiary standard brings the possibility that some incompetent evidence will be admitted. Id., 97-1225 at pp. 13-14, 708 So.2d at 383. Therefore, the legislature has granted hearing officers the discretion to disregard such admissible, but incompetent, evidence in reaching factual findings. Id. Thus, when a reviewing court finds incompetent evidence in the record, it, must apply a manifest error standard of review, unless it is clear from the hearing officer's written or oral reasons for judgment, or otherwise evident from the record, that the hearing officer actually relied on incompetent evidence in arriving at his factual findings. Id. If it is clear that the OWC judge relied on incompetent evidence, the reviewing court must conduct a de uovo review of the competent evidence, giving no deference to the OWC judge's factual findings, and render judgment. Id.

In Chaisson, the Louisiana Supreme Court found that hearsay evidence could qualify as "competent evidence" provided that it possessed some degree of reliability and trustworthiness and was of the type upon which reasonable persons would rely. Id., 97-1225 at pp. 12-13, 708 So.2d at 382.

Bolton argues the OWC Judge erred in admitting the LSI drug test report. In his written reasons for judgment. the OWC judge found Bolton was not credible and that his testimony regarding his drug use was "unconvincing." Thus, it appears that the contested evidence was actually relied upon by the OWC judge. Therefore, we must determine whether the LSI drug test report qualifies as competent evidence such that it possesses some degree of reliability and trustworthiness and is of the type upon which reasonable persons would rely.

The record indicates that LSI, whose business entails conducting drug tests, is certified by the federal government, the National Laboratory Certification Program, the College of American Pathologists, the State of Louisiana, and the Nuclear Regulatory Commission. At trial, Bolton stipulated to the authenticity of' LSI's chug test report which was further certified and attested to by Dr. Leon Glass, who was responsible for assuring that the test was conducted under the applicable guidelines. Our review of the report leads us to conclude that it possesses all the judicia necessary to qualify as competent evidence.

At trial, counsel for Bolton argued that the drug test report was irrelevant unless it could be shown that Bolton was under the influence at the time the accident occurred. BE & K countered that it was relevant to the defense of their claim and to Bolton's credibility. BE K contends that Bolton suffered no accident at all; and knowing he was going to be terminated for testing positive for drug's, he had a motive for claiming an accident to receive compensation benefits. BE & K further offered the failed drug test report to contradict Bolton's sworn testimony that he had not used cocaine before the drug test was conducted. Bolton denied ever using cocaine at any point in time. The drug test report directly contradicted his testimony. Bolton then testified that the only way cocaine could have gotten into his system was if, without his knowledge, it had been mixed in with some marijuana he smoked. However, the drug test report further contradicted this explanation. The drug test report indicated that Bolton tested positive for cocaine, but negative for marijuana. Dr. Glass testified that if Bolton had simultaneously ingested marijuana and cocaine, then the marijuana would have shown up on the report along with the cocaine, because marijuana has a much longer half-life and will stay in the body longer than cocaine will. Because the report contradicts Bolton's testimony, it was admissible as competent evidence.

On appeal, Bolton contends that because BE & K promulgated no written drug policy and conducted no drug test at the time of the alleged accident, the LSI drug test report was improperly admitted to prove lie was intoxicated at the time of accident and thus precluded from receiving benefits pursuant to La. R.S. 23:1081. Bolton's argument is wholly misplaced. BE & K has never asserted that Bolton was intoxicated at the time of the accident. BE & K specifically repudiated that defense. BE & K contends that Bolton suffered no accident at all.

Furthermore, although referenced in another assignment of error, appellant notes in brief, that he "objected to the use of any related medical records to the extent of any reference to drugs that may have been in Mr. Bolton's system at the time of injury. Court (sic) allowed defendants to offer medicals [sic] to show injuries not relating in any manner to the on the job injuries. Plaintiff objected to the use of defendant's witness Dr. Glass as an interpreter of the medical records in which he had no knowledge."

Certified medical records from Medical Center of Louisiana/Charity Hospital in New Orleans and L.S.U. Washington-St. Tammany Regional Medical Center in Bogalusa containing drug test results indicating positive results for cocaine and marijuana were introduced to contradict Bolton's testimony that he never used cocaine. There was no evidentiary error in this. When Bolton objected to the relevance of these records, the OWC judge specifically found it "relevant because it goes to his credibility. He's testified that he has never done this before and this shows that there is a possibility that he had." As for any objection to the authenticity of the records, La. R.S. 13:3714 provides that certified medical records shall be received in evidence as prima facie proof of their contents. No foundation, beyond certification, is required for their admission. Judd v....