Magee v. Abek, Inc.

• Decision Date: 28 April 2006
• Docket Number: No. 2004 CA 2554.,2004 CA 2554.
• Citation: 934 So.2d 800
• Parties: Dawn MAGEE v. ABEK, INC.
• Court: Court of Appeal of Louisiana — District of US

934 So.2d 800

Dawn MAGEE v. ABEK, INC.

No. 2004 CA 2554.

Court of Appeal of Louisiana, First Circuit.

April 28, 2006.

Rehearing Denied June 30, 2006.

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William R. Mustian, III, Stanga & Mustian, Metairie, for Plaintiff-Appellant/Appellee Dawn Magee.

Tammy M. Nick, Slidell, for Defendant-Appellee/Appellant ABEK, Inc.

Before: PARRO, McDONALD, and HUGHES, JJ.

PARRO, J.

In this workers' compensation case, the claimant, Dawn Magee,¹ appeals a judgment that ordered her former employer, Abek, Inc. (Abek), to pay medical benefits for a work-related injury to her left ulnar nerve, but denied benefits for treatment of back and neck injuries, based on the workers' compensation court's finding that these were not caused by the accident at work. She also appeals the denial of her claims for temporary total disability benefits, supplemental earnings benefits, penalties, attorney fees, and court costs, including the fees of her medical expert. Abek also appealed, seeking the forfeiture of all past, present, and future benefits and restitution on the grounds that Magee willfully made false statements for the purpose of obtaining workers' compensation benefits.² We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Dawn Magee went to work during the summer of 2002 as a receptionist at Abek, a real estate business owned by Andrew Kobeszko, his wife, Elizabeth, and their children. While at work on January 9, 2003, Magee went into the kitchen, slipped, and fell. Although Abek did not have workers' compensation insurance, the company began paying Magee's medical bills and continued her usual paycheck through the end of May, although she was not working during that period. Questions arose concerning her disability status and the necessity for certain treatments, and in March 2003, Magee filed a disputed claim for workers' compensation benefits. Abek answered, denying all allegations, and later reconvened for restitution and forfeiture of all her benefits.

After a two-day trial in March 2004, the court took the matter under advisement and accepted post-trial memoranda from the parties. A judgment was signed on April 27, 2004, in which the court found Magee had suffered a work-related accident on January 9, 2003, injuring her left ulnar nerve. The court ordered Abek to pay all reasonable and necessary past, present, and future medical treatments for the ulnar nerve injury, subject to the workers' compensation fee schedule. Finding that Magee's neck and back conditions were not caused by the accident at work, the court denied any claims for relief related to those complaints and further denied Magee's claims for temporary total disability benefits, supplemental earnings benefits, penalties, attorney fees, and court costs. Abek's claims for forfeiture of benefits and restitution were also denied. Both parties filed motions for new trial, which were denied. However, the court signed an amended judgment on July 7, 2004, clarifying its intentions regarding medical benefits for the ulnar nerve injury. The amended judgment stated all past treatments by Dr. Dietze for that injury were reasonable and necessary, and the recommended surgery — a left ulnar nerve exploration and neurolysis with transposition — was also reasonable and necessary.³ Both parties appealed these judgments.

APPLICABLE LAW

Standard of Review

In a workers' compensation case, as in other cases, the appellate court's review of factual findings is governed by the manifest error or clearly wrong standard. Smith v. Louisiana Dep't of Corr., 93-1305 (La.2/28/94), 633 So.2d 129, 132. The two-part test for the appellate review of facts is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court's factual finding only if, after reviewing the record in its entirety, it determines the trial court's finding was clearly wrong. See Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of the trier of fact, for only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

Burden of Proof/Causation/Credibility

The workers' compensation laws provide coverage to an employee for personal injury by accident arising out of and in the course of employment. LSA-R.S. 23:1031(A). An employee must prove the chain of causation required by the workers' compensation statutory scheme. He must establish that the accident was work-related, that the accident caused the injury, and that the injury caused the disability. DeGruy v. Pala, Inc., 525 So.2d 1124, 1130 (La.App. 1st Cir.), writ denied, 530 So.2d 568 (La.1988). Initially, a workers' compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Holiday v. Borden Chem., 508 So.2d 1381, 1383 (La.1987). Next, he must establish a causal connection between the accident and the resulting disability by a preponderance of the evidence. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979). Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the fact finder based on all credible evidence. DeGruy, 525 So.2d at 1132.

Even if the employee suffered from a pre-existing medical condition, he may still meet his burden of proof of causation if he proves that the accident aggravated, accelerated, or combined with the pre-existing condition to produce a compensable disability. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689, 691. He may be aided in meeting the foregoing burden by a presumption of causation, if he can prove that before the accident he had not manifested disabling symptoms, that such symptoms commenced with the accident and manifested themselves thereafter, and that either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and onset of the disabling symptoms. Walton v. Normandy Village Homes Ass'n, Inc., 475 So.2d 320, 324-25 (La.1985).

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. Bruno v. Harbert Int'l, Inc., 593 So.2d 357, 361 (La. 1992). Corroboration of the worker's testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Id. Barring circumstances that cast suspicion on the reliability of the worker's uncontradicted testimony, the fact finder should accept the testimony as true when determining whether the worker has discharged his burden. Brown v. Kwok Wong, 01-2525 (La.App. 1st Cir.12/20/02), 836 So.2d 315, 319. If the evidence leaves the probabilities of causation equally balanced, the worker has failed to carry his or her burden of proof. Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers' compensation judge. Harrison v. Baldwin Motors, 03-2682 (La.App. 1st Cir.11/3/04), 889 So.2d 313, 316, writ denied, 05-0249 (La.4/1/05), 897 So.2d 609.

A claimant's lack of credibility on factual issues can serve to diminish the veracity of his complaints to a physician. Peters v. Harmsen, 03-1296 (La.App. 1st Cir.4/2/04), 879 So.2d 157, 162. Thus, in many cases, the credibility of the history given by the claimant to his physicians becomes as important as the medical opinions based in part on that history. See Cheatum v. Wackenhut Corp., 346 So.2d 888, 890 (La.App. 4th Cir.1977). The rule that questions of credibility are for the trier of fact applies also to the evaluation of expert testimony. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La. 1990).

Indemnity Benefits

An employee seeking to recover indemnity benefits for a temporary or permanent total disability must prove by clear and convincing evidence that he is physically unable to engage in any gainful occupation, whether or not the same type of work he was engaged in at the time of the injury. LSA-R.S. 23:1221(1)(c) and (2)(c). To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, in other words, much more probable than not. Carter v. Williamson Eye Center, 04-0527 (La.App. 1st Cir.2/11/05), 906 So.2d 503, 508. An employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage. LSA-R.S. 23:1221(3)(a). The employee bears the burden of proving, by a preponderance of the evidence, that the work-related injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. LaFleur v. Alec Elec., 04-0003 (La.App. 1st Cir.12/30/04), 898 So.2d 474, 478, writs denied, 05-0276 and...