Abadie v. MARSIGLIA CONST. CO.

845 So. 2d 564, 2002 La.App. 4 Cir. 2108, 2003 La. App. LEXIS 1107, 2003 WL 1879139
CourtLouisiana Court of Appeal
DecidedApril 9, 2003
Docket2002-CA-2108
StatusPublished
Cited by1 cases

This text of 845 So. 2d 564 (Abadie v. MARSIGLIA CONST. CO.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Abadie v. MARSIGLIA CONST. CO., 845 So. 2d 564, 2002 La.App. 4 Cir. 2108, 2003 La. App. LEXIS 1107, 2003 WL 1879139 (La. Ct. App. 2003).

Opinion

845 So.2d 564 (2003)

Andrew ABADIE
v.
MARSIGLIA CONSTRUCTION COMPANY.

No. 2002-CA-2108.

Court of Appeal of Louisiana, Fourth Circuit.

April 9, 2003.
Writ Denied June 20, 2003.

*565 Joseph G. Albe, Metairie, LA, for Plaintiff/Appellee.

Max K. Jones, Jr., John J. Rabalais, Janice B. Unland, Robert T. Lorio, Rabalais, Unland & Lorio, Covington, LA, for Defendant/Appellant.

(Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.)

TERRI F. LOVE, Judge.

Louisiana Commerce & Trade Association Self-Insurers' Fund appeals the workers' compensation court's judgment finding it jointly and in solido liable with Hanover Insurance Company for the plaintiff's second work-related injury, because the plaintiff failed to provide evidence of the occurrence of a second accident. We reverse the workers' compensation judge's ruling for the following reasons.

*566 FACTS AND PROCEDURAL HISTORY

On March 10, 2000, Andrew Abadie ("Abadie") stepped into a hole while carrying a bucket of materials and injured his lower back in the course and scope of his employment as a laborer. At the time of the accident, he was employed by Marsiglia Construction Company ("Marsiglia"), which was insured by Hanover Insurance Company ("Hanover"). Marsiglia's company doctor, Dr. Robert A. Steiner, diagnosed Abadie with Degenerative Lumbar Disc Disease and Lumbar Spondylolisthesis. Despite receiving several epidural lumbar injections prescribed to alleviate pain, Abadie continued to experience pain in his lower back and legs. Dr. Steiner released Abadie to work with restrictions, which permitted him to work light duty jobs. Subsequently, Abadie notified Dr. Steiner of the lack of availability of light duty jobs, and he stopped working. In June of 2000, Dr. Steiner released Abadie to work as a supervisor instead of as a laborer.

The following year, the week of March 19 through March 23, 2001, Abadie alleged he sustained a subsequent injury to his lower back. On March 29, 2001, Dr. Steiner noted, "Mr. Abadie has had a recurrence of back pain. He was doing more than his supervisory capacity last week while trying to meet a job deadline. At this time he is complaining of quite a bit of back pain and occasional radiation into the legs." Dr. Steiner prescribed Celebrex and Darvocet and advised Marsiglia that Abadie was not released for work for about two weeks.

In March of 2001, Marsiglia was insured by Louisiana Commerce & Trade Association Self-Insurers' Fund ("LCTA"). Hanover refused to provide benefits for the subsequent injury. LCTA refused to pay benefits to Abadie, because he allegedly failed to report a new "accident". Furthermore, LCTA argued that if there was a new "accident", then the subsequent injury was an aggravation of the prior back injury, which Hanover was solely responsible for payment of workers' compensation benefits. Both insurers maintained that the other was responsible for payment of benefits for Abadie's subsequent injury. Hanover, however, continued to pay for medical treatment stemming from the initial injury.

A claim was filed against Hanover for the March 10, 2000, accident and separate claim was filed against LCTA for the subsequent injury, which alleged an aggravation of the March 10, 2000, back injury. The two actions were consolidated for trial. The workers' compensation judge found Hanover liable for the payment of workers' compensation benefits for both the initial and second work-related accidents, and assessed applicable penalties and attorney's fees against it for failure to pay indemnity and/or medical benefits for the second accident. Furthermore, the workers' compensation judge found LCTA solidarily liable with Hanover for the plaintiff's workers' compensation benefits related to the second work-related accident. In its written judgment, the workers' compensation judge stated:

Claimant Andrew I. Abadie, Jr. suffered a second work-related accident and injury, within the course and scope of employment, in the week of March 19th through 23rd, 2001, when his employer was insured for workers' compensation benefits by La. Commerce & Trade Association Self-Insurer's Fund (LCTA) (OWC # 01-03712). Since the `second' accident occurred March 19th through 23rd of 2001, LCTA is liable in worker's compensation to claimant; LCTA and Hanover are jointly and in solido liable for workers' compensation benefits for the `second' accident March *567 19th through 23rd of 2001. Regardless of whether there was a `second' accident on March 19th through 23rd of 2001 or the aggravation of the initial accident and/or injury on March 10, 2000, Hanover was at least partly liable for the second accident; "LCTA" did reasonably controvert whether or not a `second injury' accident or re-injury occurred.

Therefore, LCTA was not ordered to pay attorney's fees or penalties for its failure to pay benefits to Abadie.

DISCUSSION

LCTA argues that the workers' compensation judge erred in finding that a second accident had occurred without any evidence to support the occurrence of a subsequent work-related accident or injury and holding LCTA solidarily liable for workers' compensation benefits for Abadie's second work-related injury.

(New Accident during March 2001)

The appellant asserts Abadie failed to prove that an "accident" or specific event occurred in March of 2001. LCTA directs this court's attention to Abadie's testimony wherein he testified that his subsequent injury was not the result of a particular accident, but the result of overextending himself over the course of a three-week work period in March of 2001.

The standard of review for findings of fact by a hearing officer in a worker's compensation case is "manifest error," and it is the appellate court's duty to determine not whether the fact finder's conclusion was right or wrong, but whether it was reasonable. Where there are two permissible views of evidence, a fact finder's choice between them can never be manifestly erroneous or clearly wrong. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1164.

La. R.S. 23:1021(1) defines an employment related accident as follows:

[A]n unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

It is a well-settled principle that the provisions of the worker's compensation scheme should be liberally interpreted in favor of the worker. Bynum v. Capital City Press, Inc., 95-1395 (La.7/2/96), 676 So.2d 582, 586 (La.1996).

In order for the employee to recover, he must show that his employment somehow caused or contributed to the disability, but he need not establish the exact cause. Andrews v. Music Mountain Water Co., 25-634 (La.App. 2 Cir. 4/6/94), 637 So.2d 571, writ denied, 640 So.2d 1356 (La.1994). A claimant's own testimony may be sufficient to prove causation by a preponderance of evidence, provided (1) no other evidence discredits or casts serious doubt upon the claimant's version of the incident, and (2) the claimant's testimony is corroborated by circumstances surrounding the alleged incident. Corroboration may also be provided by medical evidence. Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992).

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845 So. 2d 564, 2002 La.App. 4 Cir. 2108, 2003 La. App. LEXIS 1107, 2003 WL 1879139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abadie-v-marsiglia-const-co-lactapp-2003.