Bartholomew v. Rhorer Mutual Industries

919 So. 2d 754, 5 La.App. 5 Cir. 315, 2005 La. App. LEXIS 2547, 2005 WL 3370607
CourtLouisiana Court of Appeal
DecidedDecember 13, 2005
DocketNo. 05-CA-315
StatusPublished

This text of 919 So. 2d 754 (Bartholomew v. Rhorer Mutual Industries) 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
Bartholomew v. Rhorer Mutual Industries, 919 So. 2d 754, 5 La.App. 5 Cir. 315, 2005 La. App. LEXIS 2547, 2005 WL 3370607 (La. Ct. App. 2005).

Opinion

JAMES L. CANNELLA, Judge.

|¡>The Defendants, Rhorer Mutual Industries (Rhorer) and its insurer, Louisiana Workers’ Compensation Corporation (LWCC), appeal from the judgment of the Office of Workers’ Compensation (OWC) rendered in favor of the Claimant, Allen Bartholomew. For the reasons which follow, we reverse.

On September 5, 2003, the Claimant filed a Disputed Claim for Compensation with the OWC. Therein he stated that he had started working for Rhorer on August 12, 2003 as an equipment operator. His average weekly wage was $600. Eight days later, on August 20, 2003, he claims that he sustained injuries to his ribs, back, knee, and ankle while in the course and scope of his employment, working near the tank farm, when he fell into a deep hole. He also contends that penalties and attorney fees are due because the Defendants-failed to reasonably controvert the claim. Bartholomew listed Jamie Labranche (La-branche) as a witness.

[756]*756laOn December 12, 2003, the Defendants answered the claim and denied all liability, contending that, upon investigation of the claim, no witnesses confirmed Bartholomew’s account or even the occurrence of the accident. Moreover, contrary to the Claimant’s assertions, statements by coworkers indicated that no accident took place.

Following a hearing conducted on October 25, 2004, judgment was rendered on December 6, 2004 in favor of Bartholomew, upon finding that: (1) Bartholomew was injured by accident during the course and scope of his employment on August 20, 2003; (2) Bartholomew is entitled to the payment of temporary total disability benefits from August 20, 2003 through November 30, 2003; (3) Bartholomew is entitled to the payment of supplemental earnings benefits from December 1, 2003 through April 18, 2003; (4) Bartholomew is entitled to the payment of all medical expenses, medication expenses and transportation expenses related to the injury sustained on August 20, 2003; (5) the Defendants were arbitrary and capricious in their refusal to pay worker’s compensation benefits; (6) the Defendants failed to reasonably controvert the claim; (7) penalties are due in the amount of $2000 for failure to pay worker’s compensation benefits; (8) attorney’s fees are due in the amount of $3000; and (9) credit is due to the Defendants for any benefits already paid and for any earnings by Bartholomew. It is from this judgment that the Defendants appeal.

On appeal the Defendants first argue that the trial court erred in finding that Bartholomew sustained a work related injury on August 20, 2003. They argue that there is no evidence in the record to support the claim except the self serving testimony of the Claimant. His testimony is not corroborated by any other testimony and, to the contrary, it is contradicted by the testimony and statements of his coworkers, supervisors and his own deposition. Therefore, the Defendants |4argue that the trial court judgment, finding that a work related accident occurred on August 20, 2003, is manifestly erroneous and should be set aside. We agree.

It is well settled and acknowledged by the Defendants that an appellate court may not set aside the factual findings of a workers’ compensation judge in the absence of manifest error or unless it is clearly wrong. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La.3/4/98), 708 So.2d 375, 380; Barbarin v. TLC Home Health, 02-1054, p. 3 (La.App. 5th Cir.4/29/03), 845 So.2d 1199, 1202; Campbell v. Gootee Const Co., 99-913, p. 9 (La.App. 5th Cir.1/12/00), 756 So.2d 449, 453. It is the claimant’s burden, in a workers’ compensation case, to prove a work-related accident and a resulting injury by a preponderance of the evidence. Ratliff v. Brice Bldg. Co., 03-624 (La.App. 5th Cir.11/12/03), 861 So.2d 613. While the court may view the circumstances from the perspective of the worker, the claimant’s burden of proof is not relaxed. Shaw v. Arc of St. Charles, 00-1193 (La.App. 5th Cir.11/28/00), 776 So.2d 542. The claimant’s testimony alone may be sufficient to satisfy this burden of proof, as long as there is no other evidence that discredits or casts serious doubt upon his version of the incident, and his testimony is corroborated by circumstances following the alleged accident. Ratliff, supra; Head v. Wimu-Dixie, Inc., 01-467 (La.App. 5th Cir.10/17/01), 800 So.2d 992; Shaw, supra. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Corroboration may also be provided by medical evidence. Ratliff, supra; Shaw, supra.

In the present case, we find that the only evidence of the accident was the testi[757]*757mony of the Claimant, which was not corroborated by any other evidence and, to the contrary, was discredited by the testimony of his co-workers.

The Claimant was the only witness to testify in support of his claim. The evidence shows that he was a 31 year old male when hired by Rhorer as an | ñequipment operator eight days prior to the alleged accident. The record establishes that the Claimant worked a full day on August 20, 2003 and was terminated after one-half of the next day, on August 21, 2003. The Claimant testified that he was injured in the morning of the 20th while spraying a field when he fell into a deep hole and sustained injuries. He testified that his co-worker, Labranche, came to his aid and helped him up out of the hole. He also testified that Labranche went and got his supervisor, Donnie White (White), and the Claimant explained to him what happened. The Claimant testified that he rested for about two hours, until about noon, and then finished his afternoon shift that day. He also testified that Chester Rothkamn, the risk manager or safety manager, brought him some aspirin later that afternoon and was informed of the earlier accident. The Claimant testified that he did not report the accident officially because White discouraged him from doing so, expressing concern that too many accidents had been occurring and the company could be in danger of losing its contract.

The following day, the Claimant again reported to work. During the morning shift, while driving a tractor, he struck the arm of the tractor sprayer against a post, breaking the arm, and making the third incident the Claimant was involved in during his nine days of employment. The Claimant heard that he was going to be terminated at the end of the day and went to the office at noon on the 21st to find out if he was going to be fired that afternoon. Upon being told that he was going to be terminated for lack of necessary experience to do the assigned work, the Claimant asked if he could leave at that time instead. His supervisor, Christopher Clausen (Clausen), allowed him to leave immediately and he was clocked out and terminated at noon on August 21, 2003. The Claimant contends that he informed Clausen at that time of the accident. Following his termination, the Claimant consulted an attorney who sent him to a physician, Dr. Erwin J. 1 fjDeiparine. Dr. Deiparine saw the Claimant initially six days after the accident, on August 26, 2003, and for treatment thereafter. The medical records were admitted into evidence. No witnesses were called to corroborate the Claimant’s testimony about the accident.

Perhaps, as evidenced by the Defendants, the Claimant called no corroborative witnesses because there were none.

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Related

Ratliff v. Brice Bldg. Co.
861 So. 2d 613 (Louisiana Court of Appeal, 2003)
Campbell v. Gootee Const. Co.
756 So. 2d 449 (Louisiana Court of Appeal, 2000)
Shaw v. Arc of St. Charles
776 So. 2d 542 (Louisiana Court of Appeal, 2000)
Chaisson v. Cajun Bag & Supply Co.
708 So. 2d 375 (Supreme Court of Louisiana, 1998)
Head v. Winn-Dixie, Inc.
800 So. 2d 992 (Louisiana Court of Appeal, 2001)
Barbarin v. TLC Home Health
845 So. 2d 1199 (Louisiana Court of Appeal, 2003)

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Bluebook (online)
919 So. 2d 754, 5 La.App. 5 Cir. 315, 2005 La. App. LEXIS 2547, 2005 WL 3370607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartholomew-v-rhorer-mutual-industries-lactapp-2005.