Bryan v. Allstate Timber Co.

724 So. 2d 853, 1998 WL 896243
CourtLouisiana Court of Appeal
DecidedDecember 16, 1998
Docket98-840
StatusPublished
Cited by16 cases

This text of 724 So. 2d 853 (Bryan v. Allstate Timber 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
Bryan v. Allstate Timber Co., 724 So. 2d 853, 1998 WL 896243 (La. Ct. App. 1998).

Opinion

724 So.2d 853 (1998)

Scott A. BRYAN, Plaintiff-Appellee-Appellant,
v.
ALLSTATE TIMBER COMPANY, Defendant-Appellant.

No. 98-840.

Court of Appeal of Louisiana, Third Circuit.

December 16, 1998.
Rehearing Denied January 29, 1999.

*854 Daniel G. Brenner, and William P. Polk, II, Alexandria, for Scott A. Bryan.

Peggy Dean St. John, Alexandria, for Allstate Timber Co.

Before COOKS, SAUNDERS and WOODARD, Judges.

COOKS, Judge.

The defendant appeals a ruling of the Office of Workers' Compensation awarding the claimant temporary total disability benefits and all reasonable and necessary medical expenses. The claimant also appeals, contesting the workers' compensation judge's failure to award penalties and attorney fees. For the following reasons, we affirm.

FACTS

On January 31, 1997, Scott Bryan filed a claim for workers' compensation benefits. He alleged, while engaged in the course of his employment with Jerry Wilson Logging (who was the subcontractor for defendant, Allstate Timber Company), he injured his neck and back operating a "skidder." Specifically, he asserted the skidder "dropped off a large stump and jammed [his] neck and back."

Defendant denied the claimant suffered a single identifiable accidental injury in the course and scope of his employment or that he was disabled. In her oral reasons for judgment, the workers' compensation judge noted there was no evidence of any single identifiable event that caused claimant's injury, however, she concluded "because of the operation of the skidder sometime in the period of work between the 1st of November and the 15th of November [claimant] suffered an accident ..." The workers' compensation judge further found it was "well documented that [claimant] suffered a cervical injury" for which he was entitled to medical treatment and indemnity benefits. Claimant was awarded temporary total disability payments of $266.66 retroactive to November 15, 1996, to continue "until further orders of [the] court." The court also ordered defendant to provide all necessary medical treatment associated with claimant's cervical injury. Penalties and attorney fees were denied.

As noted, defendant lodged this appeal arguing the workers' compensation judge *855 erred in finding claimant suffered an "accident" some time between November 1 and November 15, 1996, and in awarding benefits and medical treatment for this alleged accident. Claimant also appealed the judgment, contending the workers' compensation judge erred in not awarding penalties and attorney fees.

ANALYSIS

It is well settled in workers' compensation cases that appellate courts are required to apply the "manifest error—clearly wrong" standard of review. To determine whether manifest error occurred below, an appellate court must review the record in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94); 630 So.2d 706. Factual findings of the workers' compensation judge may not be set aside unless they are manifestly erroneous or clearly wrong. Key v. Insurance Co. of North America, 605 So.2d 675 (La.App. 2 Cir.1992). Great weight is given the workers' compensation judge's factual conclusions, reasonable evaluations of credibility, and reasonable inferences of fact. Dixon v. Louisiana Restaurant Ass'n, 561 So.2d 135 (La. App. 3 Cir.1990).

I. Benefits and Medical Treatment

La.R.S. 23:1031 requires a workers' compensation claimant to initially establish "personal injury by accident arising out of and in the course of his employment." Bruno v. Harbert International, Inc., 593 So.2d 357, 360 (La.1992). An accident, for purposes of workers' compensation law, is defined in La.R.S. 23:1021(1) as follows:

"Accident" means an 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.

To recover workers' compensation benefits, a claimant must establish by a preponderance of evidence that an accident occurred on the job site and that an injury was sustained. Garner v. Sheats & Frazier, 95-39 (La.App. 3 Cir. 7/5/95); 663 So.2d 57. A worker's testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Garner, 663 So.2d at 60. The evidence is viewed in a light most favorable to the claimant. When there is proof of an accident and attendant disability, without an intervening cause, it is presumed that the accident caused the disability. Additionally, the trier of fact's determination as to whether a compensable injury was suffered is a question of fact and will not be disturbed unless manifestly erroneous or clearly wrong. Dew v. V.I.S., Inc., 95-141 (La.App. 3 Cir. 11/2/95); 664 So.2d 693.

Defendant's basis for denying Bryan's claim was that he had no "identifiable accident" as required by La.R.S. 23:1021(1). A similar explanation for denial is given in a letter sent by Tracy Myrick, the claims adjuster for defendant's workers' compensation insurer, to the Office of Workers' Compensation, in which she states:

Mr. Bryan has alleged that during the first two weeks of November, 1996, he suffered back pain as a result of operating a bulldozer while employed for Allstate Timber Company. Based on the medical records we received, Mr. Bryan's recorded statement, and information from our insured, we have denied this claim based upon the fact that there is no "identifiable accident." At the time of Mr. Bryan's initial complaints, he had been employed with our insured for approximately four weeks from date of hire, October 4, 1996; therefore, it is our opinion that this is not an occupational injury. Some four months later, during the mediation of February 19, 1997, Mr. Bryan then recalled that on or about November 15, 1996 he had ran [sic] the bulldozer across a large stack of stumps and subsequently had back pain the next day.[1] He did not inform his employer of *856 this incident, nor do the medical records or his previous recorded statement support this statement. Therefore, we stand with our denial of this claim based upon the fact that there is no identifiable accident.

This position is not supported by the jurisprudence. In Dyson v. State Employees Group Benefits Program, 610 So.2d 953 (La. App. 1 Cir.1992), the plaintiff was a clerk whose job required her to stand all day making copies. After approximately one month of performing this duty, she began feeling some discomfort in her feet. Two months later, she felt a very sharp pain shoot through her feet as she turned to pick up a bundle of copies. The plaintiff was diagnosed with plantar fasciitis, an inflammation of the heel which was described as a cumulative trauma disorder, commonly found in persons who, like the plaintiff, are overweight, flat-footed, and are required to stand for prolonged periods of time. Notwithstanding that the root cause of the injury was cumulative trauma, the First Circuit held an accident nevertheless occurred, finding the event which precipitated the injury was the turning or pivoting described by the plaintiff. In discussing La.R.S. 23:1021(1), the court stated:

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Bluebook (online)
724 So. 2d 853, 1998 WL 896243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryan-v-allstate-timber-co-lactapp-1998.