Brown v. Blue Grass Liquor Co.

632 So. 2d 904, 1994 La. App. LEXIS 351, 1994 WL 51747
CourtLouisiana Court of Appeal
DecidedFebruary 23, 1994
Docket25552-CA
StatusPublished
Cited by10 cases

This text of 632 So. 2d 904 (Brown v. Blue Grass Liquor 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.

Bluebook
Brown v. Blue Grass Liquor Co., 632 So. 2d 904, 1994 La. App. LEXIS 351, 1994 WL 51747 (La. Ct. App. 1994).

Opinion

632 So.2d 904 (1994)

John S. BROWN, Plaintiff-Appellant,
v.
BLUE GRASS LIQUOR COMPANY, Defendant-Appellee.

No. 25552-CA.

Court of Appeal of Louisiana, Second Circuit.

February 23, 1994.

*906 Wilkinson, Carmody, Gilliam & Hussey by Mark E. Gilliam, Shreveport, for plaintiff-appellant.

Blanchard, Walker, O'Quin & Roberts by Robert A. Dunkelman, Shreveport, for defendant-appellee.

Before LINDSAY, HIGHTOWER and STEWART, JJ.

STEWART, Judge.

Plaintiff, John Brown, was injured during his employment with defendant, Blue Grass Liquor Company, on August 27, 1990. Blue Grass paid workers' compensation benefits from September 5, 1990 until April 16, 1991, when it determined that Brown received income from his sister's closely held corporation, Citadel, Inc.

After an administrative hearing, the hearing officer found that the money paid to Brown by Citadel constituted wages and not gifts or loans as contended by Brown. The hearing officer also determined that Brown's inability to provide consistent and reliable testimony about the details of his injury raised serious doubt about his disability and unemployability due to the instant accident. Brown appeals. We reverse on the issue of disability and entitlement to benefits, and remand for calculation of supplemental earnings benefits (SEB).

*907 FACTS

John S. Brown had been treated for back injury for several years before he began his employment with Blue Grass Liquor Company in 1985. In March 1988, Brown had a work-related accident which injured his lower back. Brown returned to work about two months later and worked until he was again injured on August 27, 1990 while pulling a load of beer over a curb. Brown received workers' compensation benefits for this August 1990 injury beginning in September 1990. On April 16, 1991, Blue Grass Liquor terminated payment of benefits because it determined that Brown was working for Citadel.

Brown filed this claim for additional workers' compensation benefits against Blue Grass Liquor and its insurer, Louisiana Employers Safety Association. At the hearing, Brown presented evidence that a work-related accident occurred in August 1990. He asserted that the termination of benefits was arbitrary because defendants had no medical evidence which indicated that he could return to work. Defendants presented evidence that Brown rendered services for and received income from Citadel. Brown contended that the income he received from Citadel was either gratuitous help from his sister, or loans, but was not earned income.

The administrative hearing officer concluded that Brown failed to establish that he has been unable to return to work at 90 percent or more of his pre-accident wages. The hearing officer also found as a fact that the income was for work he performed and was therefore wages. Finding "serious doubt as to the claimant's contentions of continued disability and unemployability as a result of the August 1990 accident," the hearing officer denied Brown's claim for additional workers' compensation benefits after April 16, 1991.

Brown appeals, asserting that the hearing officer erred in her conclusion that Brown failed to establish his inability to work, and in her determination that the income from Citadel was wages. We agree with Brown as to proof of his inability to work at 90 percent or more of his pre-injury wages, but disagree regarding the hearing officer's classification of his income from Citadel, Inc.

DISCUSSION

Brown urges that the occurrence of the August 27, 1990 work-related accident and its resultant disability is shown through the testimony of co-worker, James Wedgeworth, Jr., and treating physician Dr. James Lee Ethredge. Thus, Brown contends that he met his burden by showing that this work-related accident resulted in a disabling injury. We agree.

Disability: Legal Principles

The claimant in a workers' compensation case has the burden of establishing his disability and its causal relation with the employment accident by a preponderance of the evidence. Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320 (La. 1985); Gonzales v. Babco Farm, Inc., 535 So.2d 822 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988). Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. In order for the employee to recover, it must be determined that the employment somehow caused or contributed to his disability, but it is not necessary that the exact cause be found. Walton and Gonzales, cited supra.

A claimant's disability is presumed to have resulted from an accident if before the accident he was in good health, but commencing with the accident the symptoms of the disabling conditions appear and continuously thereafter manifest themselves, providing either that there is sufficient medical evidence to show there is a reasonable possibility of causal connection between the accident and the disabling condition, Allor v. Belden Corporation, 393 So.2d 1233 (La. 1981); Lucas v. Insurance Co. of N.A., 342 So.2d 591 (La.1977), or that the nature of the accident, when combined with other facts of the case, raises a natural inference through human experience that such a causal connection exists. Haughton v. Fireman's Fund American Insurance Cos., 355 So.2d 927 (La. 1978); Dunn v. Allen Pulpwood, 565 So.2d 516 (La.App. 2d Cir.1990); Patterson v. GNB *908 Battery, Inc., 569 So.2d 640 (La.App. 2d Cir. 1990), writ denied, 573 So.2d 1134 (La.1991); Walton and Gonzales, cited supra.

An employee's pre-existing disease or infirmity does not disqualify his workers' compensation claim if the work-related injury either aggravated or combined with, the disease or infirmity to produce the disability for which compensation is claimed. When a claimant proves that before the accident he had not manifested disabling symptoms, but that commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and that there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the activation of the disabling condition, a claimant's work injury is presumed to have aggravated, accelerated or combined with any pre-existing disease or infirmity to produce his disability. Haughton, Walton, Dunn, and Patterson, cited supra.

Whether the claimant has carried his burden of proof and whether the plaintiff's testimony is credible, are questions of fact to be determined by the trier of fact. It is well settled that a court of appeal may not set aside a trial court's factual determination in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Gonzales, supra. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell at 845; Stobart v. State Through the Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993).

Disability: Operative Facts

The administrative hearing officer indicates in her opinion that the contradictions and inconsistencies in Brown's testimony cast doubt upon the extent of his disability and his ability to work. However, even assuming that Brown's testimony is wholly discredited, the record contains the following evidence:

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632 So. 2d 904, 1994 La. App. LEXIS 351, 1994 WL 51747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-blue-grass-liquor-co-lactapp-1994.