Butterfield v. Turner Industries

951 So. 2d 476, 6 La.App. 3 Cir. 1098, 2007 La. App. LEXIS 164, 2007 WL 397015
CourtLouisiana Court of Appeal
DecidedFebruary 7, 2007
Docket2006-1098
StatusPublished
Cited by11 cases

This text of 951 So. 2d 476 (Butterfield v. Turner 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
Butterfield v. Turner Industries, 951 So. 2d 476, 6 La.App. 3 Cir. 1098, 2007 La. App. LEXIS 164, 2007 WL 397015 (La. Ct. App. 2007).

Opinion

951 So.2d 476 (2007)

Timothy BUTTERFIELD
v.
TURNER INDUSTRIES.

No. 2006-1098.

Court of Appeal of Louisiana, Third Circuit.

February 7, 2007.

*477 Brian L. Coody, Lake Charles, LA, for Defendant-Appellant Turner Industries.

Mark Zimmerman, Lake Charles, LA, for Plaintiff-Appellee Timothy Butterfield.

Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.

PAINTER, Judge.

Defendant, Turner Industries, appeals the judgment of the Workers' Compensation Judge (WCJ) finding that a compensable work injury occurred and awarding Plaintiff, Timothy Butterfield ("Butterfield"), weekly indemnity benefits, medical benefits, penalties, and attorney's fees. Finding that the evidence does not support the WCJ's ruling that Butterfield suffered a compensable work-related accident, we reverse the judgment of the WCJ and render judgment in favor of Defendant, Turner Industries.

*478 FACTUAL AND PROCEDURAL BACKGROUND

Timothy Butterfield was employed by Turner Industries from April 29, 1998, through April 21, 2004. His job required him to inspect and measure pipes, which involved carrying equipment up scaffolds, bending, stooping, and twisting. He normally worked alone.

Prior to becoming employed by Turner Industries, Butterfield underwent a cervical fusion performed by Dr. Dale Bernauer on February 27, 1997, following a neck injury received in 1996 while working offshore for Mike Hooks. Following this surgery, Butterfield did not return to work until April 29, 1998, when he became employed by Turner Industries. Butterfield contends that he performed his job duties without any significant problems until June 2002 when he returned to Dr. Bernauer with complaints of neck, left shoulder, and back pain. It is at this time that Butterfield contends that he first injured his back in the course and scope of his employment with Turner Industries. Dr. Bernauer performed surgery on Butterfield's shoulder on July 1, 2003. Following this surgery, Butterfield did not return to work for Turner Industries until mid-August 2003. Butterfield further contends that he aggravated his back at work in December 2003 after bending over into a pipe rack in an awkward position and climbing down the scaffold. However, Butterfield continued to work at full duty. Butterfield returned to Dr. Bernauer on March 31, 2004. At an April 15, 2004 safety meeting, Butterfield told his supervisor that he slipped in the bathtub and hurt his back that morning. Butterfield also told his supervisor that he was having marital problems and would likely have to quit his job for a while to go to Oklahoma to try to resolve those problems. Despite that statement, Butterfield alleges that he was forced to quit working for Turner Industries on or about April 22, 2004, because of the worsening condition of his back. Butterfield contends that he did not know the extent of his back problems on April 15, 2004. Butterfield saw Dr. Bernauer on April 21, 2004, at which time Dr. Bernauer advised him of the need for a two-level lumbar fusion which would have a six-month recovery period.

Butterfield filed this claim for workers' compensation on May 14, 2004. Following trial, the WCJ rendered judgment in favor of Butterfield, finding that a compensable work injury occurred in December of 2003. The judgment awarded Butterfield the maximum weekly indemnity rate allowed at the time of the accident (which was $429.00) from the last day of his employment and payment of all reasonable and necessary medical care related to the on-the-job injury. The judgment also awarded penalties in the amount of $4,000.00 based on the finding that Turner Industries did not reasonably controvert the claim and was unreasonable in its denial of Butterfield's claim. Attorney's fees in the amount of $7,500.00 were also awarded. Defendant appeals, and Plaintiff has answered said appeal seeking an additional award of attorney's fees for work done on appeal. For the reasons that follow, we reverse and render.

DISCUSSION

Standard of Review

On appeal, Defendant asserts that the WCJ committed several "clear" or "reversible" errors in finding that a compensable work-related accident occurred based on its allegations that the WCJ made findings of fact based upon false information which was not in evidence. Thus, Defendant urges us to review this matter de novo. We disagree.

*479 In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court stated:

In worker's compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC's findings of fact is the "manifest error-clearly wrong" standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

This court, in Monceaux v. R & R Const., Inc., 05-533, p. 6 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, 799-800, writs denied, 06-585 (La.5/5/06), 927 So.2d 325, 06-636 (La.5/5/06), 927 So.2d 317, noted the following:

The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee's burden in proving a work-related injury:
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. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers' Compensation, § 253 (2d Ed.1980). Corroboration of the worker's testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson v. [Roadway Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.
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).

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951 So. 2d 476, 6 La.App. 3 Cir. 1098, 2007 La. App. LEXIS 164, 2007 WL 397015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butterfield-v-turner-industries-lactapp-2007.