Butler v. NEW ORLEANS PADDLEWHEELS
| Decision Date | 10 December 2003 |
| Docket Number | No. 2003-CA-0609.,2003-CA-0609. |
| Citation | 863 So.2d 602 |
| Parties | Ernest J. BUTLER v. NEW ORLEANS PADDLEWHEELS. |
| Court | Court of Appeal of Louisiana — District of US |
John B. Fox, Robert W. "Doc" Booksh, Jr., Citizens Law Center, L.L.C., New Orleans, LA, for Intervenors/Appellees.
Ronna M. Steele, Gretna, LA, for Plaintiff/Appellee.
Maria A. Finley, Baton Rouge, LA, for Defendants/Appellants.
(Court composed of Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR., and MOON LANDRIEU, Judge Pro Tempore).
In this workers' compensation case, the defendants, New Orleans Paddlewheels1 and the Louisiana Workers' Compensation Corporation (collectively "Paddlewheels"), appeal the judgment in favor of the claimant, Ernest Butler, entitling him to benefits and medical treatment, as well as an award for penalties and attorney's fees. We affirm.
Ernest Butler asserts that he injured his back on or about July 1, 2001, when he lifted heavy luggage for a French tour group, Cosmos, at the Royal St. Charles Hotel where Mr. Butler was employed as a bellhop for Paddlewheels.
Mr. Butler filed a compensation claim on November 14, 2001, against his employer, and complained that Paddlewheels failed to pay wage benefits or to authorize medical treatment. At the trial on October 21, 2002, the parties stipulated that Mr. Butler was earning $5.90 per hour, and he was Paddlewheels' employee at the time of the alleged incident.
The November 18, 2002 judgment held that Ernest Butler sustained a compensable work-related accident. The claimant was entitled to temporary total disability benefits in the amount of $200.49 weekly from July 1, 2001 to continue to such time as modification is appropriate. The judgment stated that the claimant is entitled to reasonable and necessary medical treatment. Further, the judgment awarded the claimant penalties in the amount of $2,000 and attorney's fees in the amount of $5,000 under La. R.S. 23:1201(F).
On appeal, Paddlewheels contends that the trial court erred in finding that the claimant: (1) proved that a compensable work-related accident occurred; (2) was entitled to temporary total disability benefits; (3) was entitled to reasonable and necessary medical treatment; and (4) was entitled to an award of penalties and attorney's fees. The Citizens Law Center and two attorneys filed a brief as intervenors.
La. R.S. 23:1031 A provides compensation if an employee sustains personal injury as the result of an accident arising out of and in the course of employment. Daspit v. Southern Eagle Sales & Services, Inc., 98-1685 (La.App. 4 Cir. 1/20/99), 726 So.2d 1079. Claimants in a workers' compensation proceeding have the initial burden of proof as to causation. Dean v. K-Mart Corp., 97-2850 (La.App. 4 Cir. 7/29/98), 720 So.2d 349, writ denied 98-2314 (La.11/13/98), 731 So.2d 265. The workers' compensation claimant must prove by a preponderance of the evidence that an employment accident had a causal relationship to the disability; if the testimony leaves the probabilities evenly balanced, the claimant has failed to carry the burden of persuasion. Harvey v. Bogalusa Concrete, Inc., 97-2945, p. 3 (La.App. 1 Cir. 9/25/98), 719 So.2d 1130, 1131. Causation is a question of fact. Dean v. K-Mart Corp., supra.
The appellate court's review of the findings of fact is governed by the manifest error or clearly wrong standard in a workers' compensation case. Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825 (La.1987).
Paddlewheels contends that the claimant failed to show that he sustained an injury on July 1, 2001, while in the course and scope of his employment. Paddlewheels asserts that the only evidence that the accident occurred was the claimant's own testimony. The claimant could not remember the exact date of the accident, and he stated that there were no witnesses to the accident. The claimant worked for about two and a half months after the alleged accident without seeking medical attention. Mr. Butler did not provide any witnesses that he allegedly told about any injuries sustained on the job or told that he was working in pain for that period of time. When Mr. Butler took sick leave between July 26 and August 16, 2001, he did not seek medical attention. The defendants did not fill out the first report of injury until January 9, 2002, when the defendants claim that they first had knowledge of an alleged accident. Paddlewheels maintains that the claimant did not present evidence of an event happening suddenly or violently that caused the alleged accident or injuries. Paddlewheels asserts that Mr. Butler first saw Dr. Norman Ott, an internist, on April 11, 2002, almost a year after the accident when Dr. Ott related the claimant's back pain to his duties as a bellman for Paddlewheels.
Paddlewheels states that Mr. Butler was released from his employment on September 19, 2001, due to a decline in the tourism business in New Orleans as a result of the September 11, 2001 tragedies in New York and Washington, D.C. Paddlewheels notes that Mr. Butler wrote to senior management and Paddlewheels' owner at least twice after he was released from his job, but he did not mention the on-the-job accident or resulting injuries. During the trial, Mr. Butler expressed his disbelief that Paddlewheels would lay him off from his job when he had been employed by Paddlewheels for five and a half years. Paddlewheels states in its brief that: "Mr. Butler also expressed several times his frustration at not being promoted into management with NOPW [Paddlewheels] as allegedly promised to him by Mr. Gerald Boulmay," the claimant's supervisor.
To recover workers' compensation benefits, an employee must show that he received a personal injury by an accident arising out of and in the course and scope of his employment, and that his injury necessitated medical treatment or rendered the employee disabled, or both. Haws v. Professional Sewer Rehabilitation, Inc., 98-2846 (La.App. 1 Cir. 2/18/00), 763 So.2d 683. A workers' compensation claimant's disability is presumed to have resulted from an accident if before the accident, the claimant was in good health and commencing with the accident, the symptoms of the disabling condition appear and continuously manifest themselves afterwards, provided that there is sufficient medical evidence to show that there is a reasonable possibility of a causal connection between the accident and the disabling condition. Woodrum v. Olive Garden Restaurant, 99-130 (La.App. 5 Cir. 5/19/99), 735 So.2d 911.
In the present case, the claimant testified that he reported his injury to Mr. Boulmay within a few days. The claimant pointed out that the employer's handbook did not require a written report and did not require that a worker must file out a written First Report of Injury. Only one verbal report to the supervisor was all that the handbook required of the worker.
Mr. Butler thought the back pain would eventually resolve, and he continued to work in pain. He testified that he asked Mr. Boulmay to move him into a more sedentary, management job because of the back problem. Mr. Butler said that Mr. Boulmay indicated that he would promote him shortly so the claimant continued to work in pain until he was laid off in mid-September 2001.
The work-related accident requirement is interpreted liberally under Louisiana jurisprudence. Bruno v. Harbert International, Inc., 593 So.2d 357, 360 (La.1992). An accident exists when "heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition." Id., citing Cutno v. Neeb Kearney & Co., 237 La. 828, 112 So.2d 628, 631 (1959).
It is improper for the court to impose a higher standard of proof on a worker simply because he was the only witness to the events giving rise to his compensation claim; to do so would in effect place a duty upon the worker to prove his case greater than that required by jurisprudence. Bruno v. Harbert International, Inc., supra at 364. The worker's testimony alone may be sufficient to discharge the burden of proving by a preponderance of the evidence that he sustained a work-related injury, provided that two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident, and (2) the claimant's testimony is corroborated by the circumstances following the alleged incident. Id. at 361. The inability to provide a specific date does not necessarily render the claimant's account of the accident insufficient for purposes of La. R.S. 23:1021(1). Watkins v. Asphalt Associates, Inc., 96-249 (La.App. 3 Cir. 12/4/96), 685 So.2d 393; Aymond v. R.J. Jones & Sons, 96-443, p. 6 (La.App. 3 Cir. 11/20/96), 690 So.2d 769, 773. An employee should not be barred from recovery because he did not realize or diagnose the full extent of his injury immediately after it happened. Middleton v. International Maintenance, 95-0238, p. 6-7 (La.App. 1 Cir. 10/6/95), 671 So.2d 420, 424,writ denied,95-2682 (La.1/12/96), 667 So.2d 523.
Paddlewheels refers to Smith v. UNR Home Products, 607 So.2d 898 (La.App. 2 Cir.1992), reversed on other grounds, 614 So.2d 54 (La.1993),
in which Smith alleged that while lifting sinks on a Friday, he felt a sharp sudden pain in his back. He momentarily stopped working and then finished his shift. He did not make an accident report. On Monday Smith called to tell his supervisor about the pain. The Second Circuit found that the hearing officer's decision was manifestly erroneous because the claimant failed to prove that he...
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