Serean v. Kaiser Aluminum & Chemical Corp.

• Decision Date: 01 May 1973
• Docket Number: No. 5513,5513
• Citation: 277 So.2d 732
• Parties: Guy SEREAN v. KAISER ALUMINUM & CHEMICAL CORPORATION.
• Court: Court of Appeal of Louisiana — District of US

Page 732

277 So.2d 732

Guy SEREAN v. KAISER ALUMINUM & CHEMICAL CORPORATION.

No. 5513.

Court of Appeal of Louisiana, Fourth Circuit.

May 1, 1973.

Rehearing Denied June 5, 1973.

McBride & Tonry, Richard A. Tonry, Chalmette, for plaintiff-appellee.

Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for defendant-appellant.

Before REDMANN, STOULIG and BOUTALL, JJ.

STOULIG, Judge.

Kaiser Aluminum & Chemical Corporation ('Kaiser') appeals the judgment of the district court awarding total and permanent workmen's compensation benefits to plaintiff, Guy Serean. The appellant challenges the sufficiency of plaintiff's proof of the accident, of its occurrence within the course and scope of Serean's employment, and of any significant disabling injury.

Plaintiff began his employment with Kaiser in 1951. After approximately a 10-year excellent work record, he suffered a job-related back injury necessitating a laminectomy of a herniated intervertebral disc. This procedure was performed by Dr. Richard Levy, a neurosurgeon, on October of 1961. After an uneventful recovery, plaintiff returned to work on February 28, 1962.

Shortly thereafter the employer changed plaintiff's job from that of a section man to that of a toolroom attendant (at a lesser rate of pay) because of the allegedly lighter duties involved. Mr. Serean maintains that his new assignment, involving the movement of items ranging from 10 to 150 pounds and the operation of an impact bolt re-threading machine, is not only more strenuous that his former duties, but also affords less respite.

During the next nine years the plaintiff apparently worked in varying degrees of pain, requiring frequent visits to the company's first aid station for medication and the loss of several days of work per month. He consulted Dr. Levy once and Dr. G. Gernon Brown on four occasions relative to his back condition.

At approximately 6:15 a.m., on January 11, 1971, the plaintiff drove his car into the employer's parking lot to report for the 7 a.m. work shift. While alighting from his automobile he stepped on a soft drink bottle causing him to lose his balance and reinjure his back. According to Serean, he immediately notified the security guard of the accident and reported to the first aid station for medical attention, but remained at work that day until the end of his shift at 3 p.m.

After missing the next four work days, plaintiff consistently worked until the mid-summer of 1971 when he was briefly incapacitated by an ulcer condition eventually resulting in surgery in November of the same year. At the time of trial, Mr. Serean had not yet returned to work.

The appellant's contention that the employee failed to carry the burden of proof necessary to establish the occurrence of the accident is without merit. Mr. Serean testified in detail as to its cause. His wife corroborated that he informed her of the accident on the day of its occurrence and that he received medication from the employer's first aid station. Additionally she stated that her husband was unable to straighten his back and that it was necessary he be confined to bed.

No countervailing evidence on this point having been presented by the defendant, we find this issue falls within the holding of Matte v. Power Rig Drilling Company, 260 So.2d 19 (La.App.3d Cir. 1972), wherein the court stated at page 21:

'The employee must establish an accident by a preponderance of the evidence, i.e. by evidence which as a whole shows it to be more probable than not that an accident occurred at work. In making this determination great weight is attached to the trial court's evaluation of the credibility of witnesses. (Citations omitted.)

'The testimony of plaintiff alone may prove the disabling accident where there are corroborating circumstances. Delafosse v. Industrial Painters, Inc., 199 So.2d 559 (La.App.3 Cir. 1967) (and Guilbeaux v. Trinity Universal Insurance Company, 134 So.2d 717 (La.App.3d Cir. 1961)).'

On this factual issue we find no manifest error in the trial court's determination that the plaintiff did establish that an accident occurred.

Whether this accident in the employer's parking lot before the commencement of a workshift falls within the course and scope of plaintiff's employment is clearly answered by the Supreme Court in Carter v. Lanzetta, 249 La. 1098, 193 So.2d 259, 261 (1966):

'* * * (I)t has long been well settled, not only here but in practically all states which have enacted Workmen's Compensation statutes, that such statutes envision extension of coverage to employees from the time they reach the employer's premises until they depart therefrom and that hours of service include a period when this might be accomplished within a reasonable interval. * * *'

This ruling is particularly applicable to Serean, whose employer did not voice any objections to plaintiff's customary early arrival for work over a 10-year period. See Gorings v. Edwards, 222 So.2d 530 (La.App.4th Cir. 1969).

In view of the foregoing determination we must now consider the issue of plaintiff's injury and resultant disability. Appellee contends that the accident aggravated his preexisting back injury, resulting in such increased pain that he is unable to perform his normal and customary duties as a toolroom attendant. Opposed to the foregoing, appellant submits that if any disability does exist it is the natural and progressive residual effect of the prior back injury and corrective surgery of 1961, free of any subsequent intervening trauma.

The only lay testimony adduced in support of plaintiff's injury and disability was that of the employee himself, his wife, and his son-in-law, Alcide Hernandez. The gist of plaintiff's testimony was that after he insured his back on January 11, 1971, he continued to work rather regularly, though in pain, until the summer of 1971. At that time he was absent for a short period because of an ulcer condition, which in November of 1971 necessitated abdominal surgery.

The testimony of Mrs. Serean and Mr. Hernandez is limited to corroborating that the plaintiff often complains of pain causing him to frequently miss work, and that he can no longer perform his customary household chores.

Though the plaintiff testified that the injury of January 11, 1971, caused an increase in the intensity of his back pain, and as a result he is unable to perform his duties as a toolroom attendant, his work record does not sustain this position--at least to the extent of the Incapacitating severity of the pain. With the exception of a brief period in the summer, he consistently worked at his regular job from January through November, at which time he was hospitalized for the unrelated stomach condition. It should also be noted that during this same period Mr. Serean served as a part-time deputy sheriff on squad car duty from midnight to 5 a.m. daily.

While this court has previously indicated...