Crockerham v. Weyerhaeuser Holden Wood Products

223 So. 3d 533, 2016 La.App. 1 Cir. 0331, 2017 WL 2399482, 2017 La. App. LEXIS 1046
Louisiana Court of Appeal·Decided June 2, 2017·No. NUMBER 2016 CA 0331·Published·Cited by 7 cases

Opinions

WHIPPLE, C.J.

2This matter is before us on appeal by defendanVemployer, Weyerhaeuser Holden Wood Products, from a judgment of the Office of Workers’ Compensation (“OWC”) in favor of elaimant/employee, Reginald Crockerham. For the reasons that follow, we affirm in part, vacate in part, and remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

Claimant was employed by defendant for approximately eighteen years, primarily in the position of forklift operator. On November 25,2013, claimant filed a disputed claim for compensation contending that he suffered a lower back injury caused by driving a forklift with bad tires and a broken seat. According to claimant, in 2012 and 2013, every time he would hit a.pothole or hit the lift side to side while operating the forklift, it would “jar” his lower back and send a sharp shooting pain down his right side to his big toe. He contends that this “ongoing process” of enduring these incidents caused his preexisting degenerative' condition to worsen, resulting in his lower lumbar back injuries. After conservative treatment in the form of multiple lumbar epidural steroid injections, claimant eventually underwent a discecto-my and a two-level fusion at L4-L5 and L5-S1 on October 10, 2013.

The matter was tried before the OWC on October 12, 2015, with the parties stipulating to all issues except, primarily, whether claimant suffered a work-related accident within the course and scope of his employment with defendant.1 Following the filing of post-trial memoranda, the OWC rendered judgment on December 18, 2015, finding that claimant proved by a preponderance of the evidence that he suffered multiple accidents beginning in 2012, which arose out of and occurred during the course of his employment with defendant, and that, as a ^result of these accidents, claimant suffered injury to his lumbar spine. The OWC awarded claimant tempo[536]*536rary total disability (TTD) benefits from April 2, 2013, and continuing forward, in the amount of $394.13 per week, plus legal interest; granted defendant a credit in the amount of $8,442.34 against the amount owed for TTD benefits; and awarded claimant past and future medical expenses incurred for the,lumbar spine, with interest.-

The judgment of the OWC was accompanied by written reasons for judgment, also issued on December 18, 2015. After hearing from the witnesses and considering the documentary evidence presented, the OWC issued the following findings:

The accident(s) at issue occurred when claimant was operating “forklift number One” that had “bad tires” and a “broken seat”. These two problems of that particular forklift combined with the potholes, which remained' despite claimant’s reporting to supervisors, caused excessive jarring of claimant’s body which resulted in repeated accidents to claimant’s-lumbar spine. Despite claimant’s notifications to his supervisors about these accidents, nothing was done to correct these problems and no reports were written despite claimant’s reporting, which began in 2012.
These problems of “bad tires”, “broken seat” and “pot holes” do not compromise job activities that cause a “gradual deterioration or progressive degeneration of the body” under La. R.S. 23:1021 which defines an accident. These problems were not corrected by the employer and they continued to cause accidents to claimant. Employer’s failure to recognize or acknowledge these accidents does not diminish the facts.
Claimant cannot read or write. His wife of many years testified at trial that it is she that handles all of the managerial aspects of the family. This includes almost, if not all, of medical questionnaires, etc. that claimant had to. fill out during this long process of seeking medical treatment. Claimant’s wife is a special education teacher in the Tangipahoa Parish school system.
When claimant initially sought medical treatment for his lumbar spine, he was told that he had arthritis. There was no recognition that claimant was suffering these work-related accidents and claimant’s limited educational abilities did not help clarify this to the initial physicians. Claimant’s limited mental skills should be taken into account when the facts of this case are considered. He is not being given any ^advantage but the circumstances of the reporting, forms filled out, discussions as to the events by and involving claimant were considered with his mental limitations being a part of the equation when determinihg what actually happened.
Claimant last worked for defendant on April 1, 2013 when his injuries from the repeating accidents finally resulted in his inability to perform his work duties. On April 1, 2013, claimant’s injuries had “developed” into a disability that rendered his work status as Temporarily Totally Disabled.

Defendant now appeals from the judgment of the OWC contending that the OWC erred in: (1) disregarding and/or misinterpreting applicable .statutes and controlling precedent so as to find that multiple unspecified accidents in 2012 and 2013 developed into a work-i’elhted injury, when claimant’s claim failed to meet the statutory definitions of “accident” or “developing injury,” and when the claim was otherwise excluded as an occupational disease; (2) finding claimant’s limited mental skills allowed the disregard of unrefuted evidence showing the absence of any accident; (3) denying defendant’s exception of prescription; and (4) awarding unspecified [537]*537past medical expenses and future medical expenses not yet incurred.

DISCUSSION

Assignment of Error Number One

In its first assignment of error, defendant contends that the OWC erred in finding that claimant suffered “repeated accidents,” as defined by LSA-R.S. 23:1021, and that his injuries were not attributable to degenerative disc disease, which defendant contends is specifically excluded as an occupational disease pursuant to LSA-R.S. 23:1031.1.

A workers’ compensation claimant bears the initial burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Magee v. Abek, Inc., 2004-2554 (La.App. 1st Cir. 4/28/06), 934 So.2d 800, 806, writ denied, 2006-1876 (La. 10/27/06), 939 So.2d 1287. “Accident”'is defined in LSA-R.S. 23:1021(1) as “an unexpected or unforeseen factual, 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.” "Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 2004-0600 (La.App. 1st Cir. 3/24/05), 907 So.2d 86, 88.

Factual findings in a workers’ compensation case are subject to the manifest error-clearly wrong standard of review. McCray v. Delta Industries, Inc., 2000-1694 (La.App. 1st Cir. 9/28/01), 809 So.2d 265, 269. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551, 556.

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Crockerham v. Weyerhaeuser Holden Wood Products, 223 So. 3d 533, 2016 La.App. 1 Cir. 0331, 2017 WL 2399482, 2017 La. App. LEXIS 1046 (La. Ct. App. 2017).

223 So. 3d 533 (Crockerham v. Weyerhaeuser Holden Wood Products) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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