Alexander v. Peerless Cleaners

134 So. 3d 189, 13 La.App. 3 Cir. 1104, 2014 WL 852686, 2014 La. App. LEXIS 612
CourtLouisiana Court of Appeal
DecidedMarch 5, 2014
DocketNo. 13-1104
StatusPublished

This text of 134 So. 3d 189 (Alexander v. Peerless Cleaners) 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.

Bluebook
Alexander v. Peerless Cleaners, 134 So. 3d 189, 13 La.App. 3 Cir. 1104, 2014 WL 852686, 2014 La. App. LEXIS 612 (La. Ct. App. 2014).

Opinion

THIBODEAUX, Chief Judge.

_JjThe claimant, Cleo Alexander, appeals the judgment of the Office of Workers’ Compensation dismissing his suit against his employer, Peerless Cleaners (“Peerless” or “the laundry”). The workers’ compensation judge concluded that Mr. Alexander did not prove the occurrence of a compensable accident. We affirm the judgment.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in finding that Mr. Alexander did not meet his burden of proving that he suffered a compensable accident while in the course and scope of his employment with Peerless Cleaners; and
(2) whether Mr. Alexander filed a frivolous appeal and is therefore liable for sanctions.

II.

FACTS AND PROCEDURAL HISTORY

The case before us is particularly difficult because of the unusual relationship between the claimant, Mr. Cleo Alexander, and the Peerless owner, Mr. Johnny Regard. Mr. Alexander, age fifty-three, and Mr. Regard, age sixty-eight, worked together side by side in the back of the laundry for many years. Mr. Regard’s grandfather started the business, and Mr. Regard had run it for over forty years. Mr. Regard testified that Mr. Alexander was one of the best employees that he had ever had. He was smart and dependable, and he had been employed there for fourteen years. Mr. Alexander had two years of college and had done other | ^things, but he liked being at home in the afternoons; and he was a good shade-tree mechanic. Basically, he worked from 7:00 a.m. until noon at the laundry Tuesday through Friday; he also worked for a couple of hours on Monday mornings when the laundry was closed.

Mr. Alexander arrived first every morning and started the operation of washing, handling buckets of detergent and starch, and then pressing and ironing. Sometimes he did dry cleaning duty. The female employees usually arrived at 7:30 a.m., took turns working in the back, and then worked the front counter until 5:00 p.m. It was a small operation, and teamwork was evident. Mr. Alexander wrapped up the laundry operations in the back, turned everything off, and was last to leave the area, clocking out around twelve, give or take an hour. If something came up later in the day, Mr. Regard would call, and Mr. Alexander would come back with help if the task required moving anything heavy.

Such was the case on Tuesday, February 28, 2012. Mr. Alexander clocked out at 1:21 p.m. after helping two deliverymen offload an electronic carousel that Mr. Regard had purchased for the laundry. It was a long, gangly piece of equipment, disassembled, and only about two feet high, but over ten feet long, with a motor at one end, and weighing around 200 pounds altogether. After it was offloaded from the trailer, the equipment sat in the parking lot in front of the laundry. Mr. Regard called Mr. Alexander around 3:30 p.m. and asked him to come back with a [191]*191couple of men to help move the carousel into the storage building across the street from the laundry.

Mr. Alexander went to the home of Ricky and Logan Channel, two brothers who had helped move things in the past. Ricky Channel went with Mr. Alexander. Logan did not arrive timely. Mr. Alexander, Mr. Regard, and Ricky 13Channel ultimately moved the equipment themselves. Ricky Channel, an apparently robust and able-bodied sixty-two-year-old, took the heavy end, and Mr. Alexander, a slighter built individual, took the lighter end. Mr. Regard helped with the light end and in the middle with a dolly. The three men pushed the equipment across the pavement, over some grass or shells, and finally into the storage building, a total of at least eighty yards. The carousel fell off the dolly a few times and had to be realigned. No one complained of being hurt during or after the offloading process around noon, and no one complained of being hurt during or after moving the equipment into storage later that afternoon.

Mr. Alexander worked every day as usual. He later complained that his back hurt, but he did not report an injury. He thought he had pulled a muscle and sought medical attention on his own at Huey P. Long Hospital (Huey P. Long), where he denied trauma or injury of any kind. Mr. Alexander subsequently asserted that he told Mr. Regard that he was hurt at work, which Mr. Regard denies.

Mr. Alexander filed a 1008 in November 2012, asserting that he sustained a work injury in mid-February; that no benefits had been paid; that no medical care had been authorized; and that he was unable to work more than half days due to disabling pain. Mr. Regard answered the suit asserting that Mr. Alexander was still fully employed; that he was not disabled; that he had not reported a work injury; and that he had not asked for medical authorization.

Mr. Alexander was paid $8.00 an hour for thirty-six hours per week. Pursuant to his time cards, he worked only twenty hours per week. He testified that he received $70.00 or $80.00 per week in additional cash in a separate envelope through December 2012, though this amount is not documented. Except |4for holidays, Mr. Alexander missed five days of work in 2012. On one of those days he had a colon screening at Huey P. Long; and the last day missed was the day after Thanksgiving. Mr. Alexander continued to work through March 2018.

On March 27, 2013, thirteen months after the incident on February 28, 2012, Mr. Alexander wrote a letter to Mr. Regard, stating that he was unable to work any longer. There were no medical reports to support a disability.

On April 3, 2013, pursuant to a court-ordered evaluation by his physician of choice, Mr. Alexander saw Baton Rouge orthopedist Dr. Kevin McCarthy. Dr. McCarthy related Mr. Alexander’s problems to the incident with the carousel based upon the history given, but his concerns were with Mr. Alexander’s cervical and thoracic spine, not his lower back.

Following a June 2013 trial and the testimony of co-workers, family members, and Ricky Channel, the trial court found in favor of Peerless Cleaners and dismissed Mr. Alexander’s claims. For the following reasons, we must affirm.

III.

STANDARD OF REVIEW

In deciding workers’ compensation cases where, as here, the accident is unwitnessed, Bruno v. Harbert Int’l Inc., [192]*192593 So.2d 357, 361 (La.1992), has enunciated the trial court’s function and the appellate court’s standard of review:

In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on preview unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farms, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases)....

Attempting to give meaning to the nebulous terms “clearly wrong” and “manifest error,” we recently enunciated the following general principles ...:

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Related

Bruno v. Harbert Intern. Inc.
593 So. 2d 357 (Supreme Court of Louisiana, 1992)
Prim v. City of Shreveport
297 So. 2d 421 (Supreme Court of Louisiana, 1974)
Holiday v. Borden Chemical
508 So. 2d 1381 (Supreme Court of Louisiana, 1987)
Broussard v. Union Pacific Resources Co.
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Nelson v. Roadway Exp., Inc.
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Gonzales v. Babco Farm, Inc.
535 So. 2d 822 (Louisiana Court of Appeal, 1988)
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West v. Bayou Vista Manor, Inc.
371 So. 2d 1146 (Supreme Court of Louisiana, 1979)
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948 So. 2d 1250 (Louisiana Court of Appeal, 2007)

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Bluebook (online)
134 So. 3d 189, 13 La.App. 3 Cir. 1104, 2014 WL 852686, 2014 La. App. LEXIS 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-peerless-cleaners-lactapp-2014.