Atwood v. Ewing Timber, Inc.

774 So. 2d 1140, 2000 La. App. LEXIS 3352, 2000 WL 1838755
CourtLouisiana Court of Appeal
DecidedDecember 15, 2000
Docket34,045-WCA
StatusPublished
Cited by13 cases

This text of 774 So. 2d 1140 (Atwood v. Ewing Timber, Inc.) 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
Atwood v. Ewing Timber, Inc., 774 So. 2d 1140, 2000 La. App. LEXIS 3352, 2000 WL 1838755 (La. Ct. App. 2000).

Opinion

774 So.2d 1140 (2000)

Cecil E. ATWOOD, Plaintiff-Appellee,
v.
EWING TIMBER, INC., Defendant-Appellant.

No. 34,045-WCA.

Court of Appeal of Louisiana, Second Circuit.

December 15, 2000.
Rehearing Denied January 18, 2001.

*1142 Bobby L. Culpepper & Associates by Bobby L. Culpepper, Jonesboro, Counsel for Appellant.

Flournoy, Doggett & Losavio by Knight E. Doggett, Alexandria, Counsel for Appellee.

Before BROWN, WILLIAMS and STEWART, JJ.

WILLIAMS, Judge.

The defendant, Ewing Timber, Inc. ("Ewing"), appeals a judgment awarding the claimant, Cecil Atwood, temporary total disability benefits of $367 per week from October 4, 1998 through April 30, 1999, and from December 1, 1999 continuing until he is released to return to work. The workers' compensation judge (WCJ) also awarded claimant supplemental earnings benefits (SEB) from May 1, 1999 through November 30, 1999, based on claimant's actual earnings during the period. The defendant was ordered to pay all related medical expenses and to reimburse *1143 claimant for travel and pharmacy expenses. For the following reasons, we amend and affirm as amended.

FACTS

On October 2, 1998, the claimant was a statutory employee of Ewing and he worked as a truck driver. While helping to cut logs to complete a load for his truck, the claimant stepped over the log which he had been cutting when another worker using a loader grabbed and lifted an end of the log. According to claimant, the log struck the inside of his leg, lifting his feet off of the ground. The log then fell and struck the claimant in the back of the legs. After delivering the load of logs to the mill, claimant reported the incident to his supervisor, Larry Hatten. When he returned home, the claimant was in pain. Two days later he sought medical treatment for low back pain at the Winn Parish Medical Center emergency room. The claimant filed a disputed claim for compensation and the defendant answered, denying that an on-the-job accident or injury had occurred.

After a hearing, the WCJ issued oral reasons for judgment, finding that the claimant's average weekly wage was $550 and that he had been injured in an accident during the course and scope of his employment. The WCJ, finding that claimant's testimony concerning his injury was credible, determined that claimant was entitled to temporary total disability ("TTD") benefits starting on October 4, 1998, and SEB based on zero earnings, with defendant receiving a credit for any income earned by claimant. The WCJ ordered claimant to submit the amount of his earnings to defendant by a specified date.

Subsequently, judgment was rendered awarding the claimant TTD benefits of $367 per week from October 4, 1998 through April 30, 1999, and from December 1, 1999 continuing until he is released to return to work. The claimant was also awarded SEB from May 1, 1999 through November 30, 1999, based on his actual earnings during the period. The judgment assessed legal interest from the due date of each installment until paid. The defendant was ordered to pay all related medical expenses and to reimburse claimant for travel and pharmacy expenses, together with legal interest. Defendant's motion for modification of judgment and new trial was denied. The defendant appeals the judgment.

DISCUSSION

The defendant contends the trial court erred in finding that an on-the-job accident occurred. Defendant argues that the claimant gave various versions of the incident and failed to establish that a work accident occurred.

The term "accident" is defined as an unexpected actual, identifiable event which at the time produces objective findings of injury. LSA-R.S. 23:1021(1); McConnell v. City of Ruston, 27,154 (La. App.2d Cir.8/23/95), 660 So.2d 100. Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was reasonable in light of the record as a whole. Freeman, supra; Stobart v. State, 617 So.2d 880 (La.1993).

Here, although there was some variation in the claimant's descriptions of the incident, he was consistent in the basic details. Claimant consistently stated that after he had cut a log, he stepped over and straddled the log as another worker began picking up the log, which lifted claimant off of his feet. The log then fell, hitting him in the back of the leg. The testimony of the other workers who were present generally corroborates the claimant's description of events.

*1144 Lain Womack, who was working with the claimant, testified that when the loader picked up the log, it "bumped" claimant, who was straddling the log. Lain stated that the log lifted claimant's foot off the ground, causing him to lose his balance and seemingly drop the saw. At trial, Bobby Womack, who was operating the loader, testified that he did not see claimant being lifted off the ground by the raised log. However, Womack acknowledged that in a prior statement, he had said that when he picked up the log, it "might have lifted" claimant off the ground. In addition, Dwight Moody, an employee of Bobby Womack, testified that he was nearby at the time of the accident and saw claimant stumble over a log, but that he did not know if it moved. However, in a prior recorded statement, Moody stated that claimant was stepping over a log when it "hit him on the leg."

The WCJ heard the testimony and weighed the credibility of the witnesses. Based upon this record, we cannot say the WCJ was clearly wrong in finding that claimant experienced an accident within the course and scope of his employment, causing injury for which he sought medical treatment shortly thereafter. The assignment of error lacks merit.

Temporary Total Disability

The defendant contends the WCJ erred in finding that claimant was entitled to temporary total disability ("TTD") benefits. An employee seeking TTD benefits must prove by clear and convincing evidence that he is physically unable to engage in any employment, regardless of its nature, and including employment while working in pain. LSA-R.S. 23:1221(1). To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable. Knotts v. Snelling Temporaries, 27,773 (La.App.2d Cir.12/6/95), 665 So.2d 657.

A workers' compensation claimant may prove disability through medical and lay testimony. The WCJ must weigh all of the evidence to determine if the claimant has met his burden of proving temporary total disability. Thomas v. Gould Street Logging, 27,192 (La.App.2d Cir.9/27/95), 661 So.2d 546.

In the present case, the claimant did not produce any medical testimony at trial, but introduced into evidence the medical records of his visits to several physicians. The records of Winn Parish Medical Center show that on October 4, 1998, claimant reported to the emergency room complaining of severe low back pain resulting from a work injury. The physical examination found muscle spasms in the right lumbar paraspinals. The clinical impression was noted as acute myofascial strain of the lumbar region. The attending physician recommended that claimant not report to work for five days.

On October 6, 1998, claimant visited his own physician, Dr. Julio Iglesias. After an examination, Dr.

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Bluebook (online)
774 So. 2d 1140, 2000 La. App. LEXIS 3352, 2000 WL 1838755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atwood-v-ewing-timber-inc-lactapp-2000.