Marange v. Custom Metal Fabricators, Inc., 11–743.

Citation75 So.3d 990
Decision Date02 November 2011
Docket NumberNo. 11–743.,11–743.
CourtCourt of Appeal of Louisiana (US)

75 So.3d 990

Henry MARANGE, Jr.

No. 11–743.

Court of Appeal of Louisiana, Third Circuit.

Nov. 2, 2011.

[75 So.3d 992]

Kathleen Wigginton Will, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Metairie, LA, for Defendants/Appellees, Bridgefield Casualty Insurance Company and Custom Metal Fabricators, Inc.

Gregory Paul Allen Marceaux, Lake Charles, LA, for Plaintiff/Appellant, Henry Marange, Jr.


THIBODEAUX, Chief Judge.

[3 Cir. 1] Henry Marange Jr. appeals from a judgment by the office of Workers' Compensation (OWC) denying him medical treatment, medical expenses, wage benefits, and penalties and attorney fees, for injuries sustained while employed with Custom Metal Fabricators, Inc. Finding that the OWC was manifestly erroneous in its decision to deny benefits, we reverse and render specific awards on each issue.


We must decide:

(1) whether the trial court manifestly erred in failing to find that the

[75 So.3d 993]

claimant sustained a work-related injury;

(2) whether the trial court manifestly erred in failing to find that the claimant was entitled to medical and wage benefits; and

(3) whether the trial court manifestly erred in failing to award penalties and attorney fees.


Henry Marange, Jr., was employed as a welder by Custom Metal. On December 28, 2009, while grinding weld seams inside a cone-shaped section of a vessel, his foot slipped on grinding dust, and his body twisted to the left as he fell forward with the weight of the turning grinder and the force of forward motion. He felt burning and pulling in his low back and buttocks but continued to work without reporting the incident. At the morning break, he was called to the phone regarding a family emergency. He left work to assist with his invalid mother's possible hospitalization, and he did not return to work for the remainder of the day.

[3 Cir. 2] The following morning, Mr. Marange awoke with burning and pulling in his low back and right leg and required assistance getting out of bed. He called Custom Metal around 7:00 a.m., reported the incident of the previous morning, and asked to be sent to a physician. The employee to whom he had spoken was Karen Porter, the company's accountant. Ms. Porter called Mr. Marange back thirty minutes later to inform him that the owner of Custom Metal, Jimmy Cureton, would not pay for medical treatment because Mr. Marange did not report an accident. Mr. Marange went to the emergency room (ER) at West Calcasieu Cameron Hospital on his own. The medical record of that visit indicates that Mr. Marange had low back pain radiating into his right leg due to the previous day's “injury on duty while using a grinder.”

In January 2010, Mr. Marange made two unanswered demands for medical treatment and workers' compensation benefits and then filed a motion for medical treatment by Dr. Clark Gunderson. The OWC ordered a medical examination by Dr. Gunderson.

Dr. Gunderson found that Mr. Marange had developed sciatica related to the December 28, 2009 work injury and that he was temporarily totally disabled as a result. Dr. Gunderson prescribed physical therapy and ordered an MRI and a return visit. He noted that Mr. Marange had also received treatment at W.O. Moss Regional Medical Center for this injury.

Mr. Marange made a demand for payment of his medical bills and for the physical therapy and return visit ordered by Dr. Gunderson. Custom Metal has not authorized payment for this medical treatment.

Following the trial of this matter, the OWC found that Mr. Marange failed to carry his burden of establishing that he had sustained a work-related injury under Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992). Mr. Marange [3 Cir. 3] appeals from that judgment seeking medical treatment, payment of his medical expenses, temporary total disability benefits, penalties, and attorney fees.


An appellate court may not set aside a trial court's findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two

[75 So.3d 994]

tiered test must be applied in order to reverse the findings of the trial court:

a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and

b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).


Mr. Marange's accident was unwitnessed. He stated that he was standing, grinding a weld seam at shoulder level, with his weight pushing on the grinder, and with his right foot propped on the cylinder wall. When his right foot slipped off the wall, where grinding dust had accumulated, his body twisted to the left with the grinder still turning, and he fell forward. He experienced burning and pulling in his low back and buttocks.

The workers' compensation judge stated in her reasons for judgment that Mr. Marange testified that he was grinding overhead, and that his assertions that he was grinding overhead did not comport with the testimony of fellow workers. She found that, under Bruno, 593 So.2d 357, the co-workers of Mr. Marange discredited or cast serious doubt on Mr. Marange's version of the [3 Cir. 4] accident. The workers' compensation judge cited Kyle Bourgeois, Custom Metal's quality control manager, for his testimony that no one was expected to grind overhead and that he never saw Mr. Marange grinding at shoulder level or standing to grind. The workers' compensation judge further cited the testimony of co-worker Mike Ellzey, who said that the grinders weighed only five to six pounds, that no grinding was done on the sides of the cylinder, and that he did not recall Mr. Marange standing to grind. Based upon this testimony, she found that Mr. Marange failed to establish his case by a preponderance of the evidence. We disagree.

Our jurisprudence provides:

[A]s in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. [ Prim v. City of Shreveport, 297 So.2d 421 (La.1974) ]; Nelson [ v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. 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. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers' Compensation, § 253 (2d Ed.1980). Corroboration of the worker's testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson; Nelson, [588 So.2d 350]. Corroboration may also be provided by medical evidence. West, [371 So.2d 1146].

Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992).

When there is proof of an attendant disability, without an intervening cause, it is presumed that the accident caused the disability. Additionally, the trier of fact'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.

[75 So.3d 995]

Capitol Mfg. Co. v. Brooks, 99–267, p. 6 (La.App. 3 Cir. 11/3/99), 745 So.2d 825, 829, writ denied, 99–3411 (La.2/4/00), 754 So.2d 236 (citations omitted).

[3 Cir. 5] [A]n intermediate appellate court is not required to follow blindly the factual determinations of a trial court without discerning whether that court's discretion in evaluating facts and credibility has been abused. Certainly, the fact finder should be accorded great latitude and discretion, but discretion must always be buttressed by sound judgment. It is not immutable. To extend the quality of immutability to a fact finder's determinations simply because it articulates the magical word, “credibility” effectively limits and circumvents an appellate court's constitutionally given power to review facts.

Butler v. Zapata Haynie Corp., 92–71, p. 7 (La.App. 3 Cir. 2/23/94), 633 So.2d 1274, 1279, writ granted in part, judgment amended (to adjust amount of lost earnings awarded by majority), 94–1171 (La.7/5/94), 639 So.2d 1186, cert. denied, Zapata Protein (USA), Inc. v. Butler, 513 U.S. 1017, 115 S.Ct. 579, 130 L.Ed.2d 494 (1994).

Here, the record does not support the trial court's conclusions that Mr. Marange did not meet his burden of proving that he sustained a work accident by a preponderance of the evidence or that his testimony was discredited by the testimony of co-workers. Contrary to the court's finding, Mr. Marange did not testify that he was grinding overhead. He testified that he was grinding at shoulder level. The testimony of co-workers did not, as the trial court found, directly contradict Mr. Marange's version of the events. Moreover, the objective evidence favors Mr. Marange and militates against the lack of support expressed by the trial judge.

The testimony of Kyle Bourgeois did not dispute Mr. Marange's testimony regarding the performance of grinding work in a standing position. Mr. Marange testified that he was grinding at shoulder level on an inside weld seam that ran up the side of the cylindrical cone-shaped section of the vessel. He stated that the seam ran around the cylinder, that he had to grind up so far and then the vessel would be rolled over to finish grinding the rest of the seam. Mr. Marange testified that he was standing, bracing himself with his right foot on the cylinder [3 Cir. 6] wall, his weight pushing on the grinder, and the grinder pushing on the wall, when his right...

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4 cases
  • Marange v. Custom Metal Fabricators, Inc.
    • United States
    • Louisiana Supreme Court
    • July 2, 2012
    ...temporary total disability benefits, as well as medical expenses, penalties, and attorney fees. Marange v. Custom Metal Fabricators, Inc., 11–743 (La.App. 3 Cir. 11/2/11), 75 So.3d 990. Upon Custom Metals' application, we granted certiorari to review the correctness of that decision. Marang......
  • State v. Jasper
    • United States
    • Court of Appeal of Louisiana — District of US
    • November 2, 2011
  • Anderson v. Kroger
    • United States
    • Court of Appeal of Louisiana — District of US
    • December 11, 2013
    ...serious doubt on his account of the accident. The employee appealed to this court, and we reversed. Marange v. Custom Metal Fabricators, Inc., 11–743 (La.App. 3 Cir. 11/2/11), 75 So.3d 990. We found that the testimony of the co-workers did not contradict the employee's account of the accide......
  • Marange v. Custom Metal Fabricators, Inc.
    • United States
    • Louisiana Supreme Court
    • February 17, 2012
    ...MARANGE, Jr.v.CUSTOM METAL FABRICATORS, INC., et al.No. 2011–C–2678.Supreme Court of Louisiana.Feb. 17, 2012. Prior report: La.App., 75 So.3d 990. In re Custom Metal Fabrications Inc.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, Office of Workers' Compensa......

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