STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-94
DANIELLE C. GARRICK
VERSUS
WAL-MART STORES, INC., ET AL.
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 09-01238 CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and Shannon J. Gremillion, Judges.
AFFIRMED.
Keith Joseph Landry Allen & Gooch P. O. Box 81129 Lafayette, LA 70598-1129 Telephone: (337) 291-1420 COUNSEL FOR: Defendants/Appellees - Wal-Mart Stores, Inc. and Claims Management, Inc.
Tina Louise Wilson Cox, Cox, Filo, Camel & Wilson 723 Broad Street Lake Charles, LA 70601 Telephone: (337) 436-6611 COUNSEL FOR: Plaintiff/Appellant - Danielle C. Garrick THIBODEAUX, Chief Judge.
The plaintiff, Danielle Garrick, appeals the judgment of the Office of
Workers’ Compensation (OWC) finding that Ms. Garrick failed to meet her burden
of proving a work-related accident and/or injury. She seeks reversal of the OWC’s
judgment, an award of temporary total disability benefits from the date of the alleged
accident to the present, payment of all accident-related medical expenses, and
penalties and attorney fees for defendant Wal-Mart’s failure to properly investigate
and pay the claim. For the reasons below, we affirm the judgment of the OWC.
I.
ISSUE
We must decide whether the OWC erred by concluding that Ms. Garrick
failed to meet her burden of proving a work-related accident and/or injury.
II.
FACTS AND PROCEDURAL HISTORY
Ms. Garrick worked at Wal-Mart as a salesclerk, performing various
duties including stocking, zoning, assisting customers, answering phones, and
occasionally working as a cashier. In the course of her work, Ms. Garrick allegedly
suffered an unwitnessed accident on or about September 21, 2008. At trial, several
witnesses testified, and both parties introduced into evidence deposition testimony
of additional witnesses.
Ms. Garrick testified that while she was stocking merchandise during the
graveyard shift, she felt a sharp pain in her lower back. She testified that she told
Tarhonda Malbrough, the zone merchandise supervisor and overnight support
manager, and Robert Scothorn, an assistant manager, that her back was hurting. She
later told Ms. Malbrough that she was going home. Ms. Garrick testified that she reported to work the next day at 2:00 p.m., and she informed Paula Lessard, Human
Resources Personnel Manager, that she hurt her back. Ms. Garrick claims that Ms.
Lessard instructed her to complete a report by contacting the night crew. Ms. Garrick
testified that two days after the accident, she informed Lois Collins, another
employee, that she hurt herself at work, and Ms. Collins allowed Ms. Garrick to
answer the telephone while Ms. Collins worked on the floor. Ms. Collins testified
that she recalls making such a special allowance for Ms. Garrick, but she testified that
she was not aware that Ms. Garrick suffered a work accident.
Similarly, Mr. Scothorn and Ms. Malbrough testified that they were not
aware that Ms. Garrick suffered a work accident. Mr. Scothorn recalled, however,
that on the night of the alleged accident, Ms. Garrick left work early because she was
hurting. Ms. Malbrough, however, did not recall that Ms. Garrick left work early on
the night of the alleged accident, and Ms. Malbrough testified that if Ms. Garrick had
informed her that she had an accident, Ms. Malbrough would have been required to
fill out an accident report.
An accident report was made in October 2008, a full month following
the date of the alleged accident. Ms. Lessard testified that she had no independent
knowledge of Ms. Garrick telling her about a work-related accident, but she assumes
she was told of the incident on October 20, 2008, because that is the date of the
employer’s accident report.1 Further, documentary evidence indicates that Ms.
Garrick did not complete the paperwork required for a leave of absence until October
20, 2008.
1 Block number 7 on the accident report, however, indicates the employer knew of the injury on September 22, 2008.
2 Kenneth Beam, an assistant manager at Wal-Mart who supervised Ms.
Garrick, testified that he recalled discussing Ms. Garrick’s back issues with her. He
did not recall Ms. Garrick telling him that she suffered an injury at work.
Several medical professionals also testified in this matter. Dr. John
Colligan testified that he did not treat Ms. Garrick for a work-related accident.
Though Dr. Colligan gave Ms. Garrick an “off work” slip in March 2009 at her
request, and though the nurse wrote on the slip “severe back and leg pain,” Dr.
Colligan insisted that as of March 30, 2009, nothing indicated that Ms. Garrick
suffered a work-related accident. He simply considered Ms. Garrick to suffer from
chronic back pain.2 No medical records from the Southwest Center for Health
Services, Ms. Garrick’s primary treatment facility, indicate that Ms. Garrick suffered
a work accident. Dr. Isaac Freeborn, a physician at the clinic, testified, however, that
despite that fact, he remembers Ms. Garrick informing him that she suffered an
accident at Wal-Mart.
Jeremy Morris, a registered nurse at Lake Charles Memorial Hospital,
testified about Ms. Garrick’s visit to Memorial on September 30, 2008. The medical
record from that date indicates that Ms. Garrick was able to ambulate to the treatment
room with left-side low back pain, extending to both legs. According to the hospital
record, Ms. Garrick denied suffering a recent injury.
The workers’ compensation judge (WCJ) evaluated the testimony and
found that other evidence discredits or casts serious doubt on Ms. Garrick’s version
of the incident. She held that Ms. Garrick failed to establish that the workplace
incident was the most reasonable explanation for her injuries. Thus, the WCJ denied
2 It is undisputed that Ms. Garrick underwent back surgery in 2004. It is further undisputed that she continued to have lower back pain following the back surgery. Moreover, on April 28, 2008, Ms. Garrick was involved in a car accident. Records from Women & Children’s Hospital indicate that Ms. Garrick was a passenger in the collision. At that time, Ms. Garrick complained that she hit her knees and jerked her back due to the collision.
3 Ms. Garrick’s claim for workers’ compensation benefits. Ms. Garrick appeals that
judgment.
III.
LAW AND DISCUSSION
Standard of Review
The WCJ’s findings of fact are reviewed under the “manifest error –
clearly wrong standard.” Dean v. Southmark Const., 03-1051, p. 7 (La. 7/6/04), 879
So.2d 112, 117. We cannot disturb the WCJ’s findings of fact as long as they are
reasonable and supported by the record. Id. The WCJ’s findings as to whether the
claimant has met his burden of proof are factual and cannot be disturbed on review
unless clearly wrong or manifestly erroneous. Stutes v. Koch Services, Inc., 94-782
(La.App. 3 Cir. 12/7/94), 649 So.2d 987, writ denied, 95-846 (La. 5/5/95), 654 So.2d
335.
Proving an Unwitnessed Accident and/or Injury
“As a threshold requirement, a worker in a compensation action must
establish ‘personal injury by accident arising out of and in the course of his
employment.’” Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 360 (La.1992) (emphasis
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-94
DANIELLE C. GARRICK
VERSUS
WAL-MART STORES, INC., ET AL.
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 09-01238 CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and Shannon J. Gremillion, Judges.
AFFIRMED.
Keith Joseph Landry Allen & Gooch P. O. Box 81129 Lafayette, LA 70598-1129 Telephone: (337) 291-1420 COUNSEL FOR: Defendants/Appellees - Wal-Mart Stores, Inc. and Claims Management, Inc.
Tina Louise Wilson Cox, Cox, Filo, Camel & Wilson 723 Broad Street Lake Charles, LA 70601 Telephone: (337) 436-6611 COUNSEL FOR: Plaintiff/Appellant - Danielle C. Garrick THIBODEAUX, Chief Judge.
The plaintiff, Danielle Garrick, appeals the judgment of the Office of
Workers’ Compensation (OWC) finding that Ms. Garrick failed to meet her burden
of proving a work-related accident and/or injury. She seeks reversal of the OWC’s
judgment, an award of temporary total disability benefits from the date of the alleged
accident to the present, payment of all accident-related medical expenses, and
penalties and attorney fees for defendant Wal-Mart’s failure to properly investigate
and pay the claim. For the reasons below, we affirm the judgment of the OWC.
I.
ISSUE
We must decide whether the OWC erred by concluding that Ms. Garrick
failed to meet her burden of proving a work-related accident and/or injury.
II.
FACTS AND PROCEDURAL HISTORY
Ms. Garrick worked at Wal-Mart as a salesclerk, performing various
duties including stocking, zoning, assisting customers, answering phones, and
occasionally working as a cashier. In the course of her work, Ms. Garrick allegedly
suffered an unwitnessed accident on or about September 21, 2008. At trial, several
witnesses testified, and both parties introduced into evidence deposition testimony
of additional witnesses.
Ms. Garrick testified that while she was stocking merchandise during the
graveyard shift, she felt a sharp pain in her lower back. She testified that she told
Tarhonda Malbrough, the zone merchandise supervisor and overnight support
manager, and Robert Scothorn, an assistant manager, that her back was hurting. She
later told Ms. Malbrough that she was going home. Ms. Garrick testified that she reported to work the next day at 2:00 p.m., and she informed Paula Lessard, Human
Resources Personnel Manager, that she hurt her back. Ms. Garrick claims that Ms.
Lessard instructed her to complete a report by contacting the night crew. Ms. Garrick
testified that two days after the accident, she informed Lois Collins, another
employee, that she hurt herself at work, and Ms. Collins allowed Ms. Garrick to
answer the telephone while Ms. Collins worked on the floor. Ms. Collins testified
that she recalls making such a special allowance for Ms. Garrick, but she testified that
she was not aware that Ms. Garrick suffered a work accident.
Similarly, Mr. Scothorn and Ms. Malbrough testified that they were not
aware that Ms. Garrick suffered a work accident. Mr. Scothorn recalled, however,
that on the night of the alleged accident, Ms. Garrick left work early because she was
hurting. Ms. Malbrough, however, did not recall that Ms. Garrick left work early on
the night of the alleged accident, and Ms. Malbrough testified that if Ms. Garrick had
informed her that she had an accident, Ms. Malbrough would have been required to
fill out an accident report.
An accident report was made in October 2008, a full month following
the date of the alleged accident. Ms. Lessard testified that she had no independent
knowledge of Ms. Garrick telling her about a work-related accident, but she assumes
she was told of the incident on October 20, 2008, because that is the date of the
employer’s accident report.1 Further, documentary evidence indicates that Ms.
Garrick did not complete the paperwork required for a leave of absence until October
20, 2008.
1 Block number 7 on the accident report, however, indicates the employer knew of the injury on September 22, 2008.
2 Kenneth Beam, an assistant manager at Wal-Mart who supervised Ms.
Garrick, testified that he recalled discussing Ms. Garrick’s back issues with her. He
did not recall Ms. Garrick telling him that she suffered an injury at work.
Several medical professionals also testified in this matter. Dr. John
Colligan testified that he did not treat Ms. Garrick for a work-related accident.
Though Dr. Colligan gave Ms. Garrick an “off work” slip in March 2009 at her
request, and though the nurse wrote on the slip “severe back and leg pain,” Dr.
Colligan insisted that as of March 30, 2009, nothing indicated that Ms. Garrick
suffered a work-related accident. He simply considered Ms. Garrick to suffer from
chronic back pain.2 No medical records from the Southwest Center for Health
Services, Ms. Garrick’s primary treatment facility, indicate that Ms. Garrick suffered
a work accident. Dr. Isaac Freeborn, a physician at the clinic, testified, however, that
despite that fact, he remembers Ms. Garrick informing him that she suffered an
accident at Wal-Mart.
Jeremy Morris, a registered nurse at Lake Charles Memorial Hospital,
testified about Ms. Garrick’s visit to Memorial on September 30, 2008. The medical
record from that date indicates that Ms. Garrick was able to ambulate to the treatment
room with left-side low back pain, extending to both legs. According to the hospital
record, Ms. Garrick denied suffering a recent injury.
The workers’ compensation judge (WCJ) evaluated the testimony and
found that other evidence discredits or casts serious doubt on Ms. Garrick’s version
of the incident. She held that Ms. Garrick failed to establish that the workplace
incident was the most reasonable explanation for her injuries. Thus, the WCJ denied
2 It is undisputed that Ms. Garrick underwent back surgery in 2004. It is further undisputed that she continued to have lower back pain following the back surgery. Moreover, on April 28, 2008, Ms. Garrick was involved in a car accident. Records from Women & Children’s Hospital indicate that Ms. Garrick was a passenger in the collision. At that time, Ms. Garrick complained that she hit her knees and jerked her back due to the collision.
3 Ms. Garrick’s claim for workers’ compensation benefits. Ms. Garrick appeals that
judgment.
III.
LAW AND DISCUSSION
Standard of Review
The WCJ’s findings of fact are reviewed under the “manifest error –
clearly wrong standard.” Dean v. Southmark Const., 03-1051, p. 7 (La. 7/6/04), 879
So.2d 112, 117. We cannot disturb the WCJ’s findings of fact as long as they are
reasonable and supported by the record. Id. The WCJ’s findings as to whether the
claimant has met his burden of proof are factual and cannot be disturbed on review
unless clearly wrong or manifestly erroneous. Stutes v. Koch Services, Inc., 94-782
(La.App. 3 Cir. 12/7/94), 649 So.2d 987, writ denied, 95-846 (La. 5/5/95), 654 So.2d
335.
Proving an Unwitnessed Accident and/or Injury
“As a threshold requirement, a worker in a compensation action must
establish ‘personal injury by accident arising out of and in the course of his
employment.’” Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 360 (La.1992) (emphasis
added) (quoting La.R.S. 23:1031). Though Louisiana courts view the question of
whether an accident occurred from the worker’s perspective, the worker’s burden of
proof is not relaxed. Id.
The plaintiff in a compensation action has the burden of proving a work-
related accident by a preponderance of the evidence. “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
4 version of the incident; and (2) the worker’s testimony is corroborated by the
circumstances following the alleged incident.” Bruno, 593 So.2d at 361.
Here, the WCJ found that Ms. Garrick failed to meet the burden
articulated in Bruno. We agree that credible evidence cast serious doubt on Ms.
Garrick’s version of the events. Though Ms. Garrick’s testimony was loosely
corroborated by other witnesses, inconsistencies abound. For example, Ms. Collins
corroborated Ms. Garrick’s testimony that Ms. Garrick answered the telephones while
Ms. Collins worked the sales floor, but Ms. Collins was not aware that Ms. Garrick
suffered a work-related accident. Similarly, though Dr. Freeborn testified that Ms.
Garrick informed him that she suffered a work-related accident, he could not recall
when she made that statement, and he was unable to testify whether her condition was
due to trauma or if her condition was due to her chronic back condition.
Moreover, other credible witnesses and documentary evidence cast
serious doubt on Ms. Garrick’s version of the events. To support Ms. Garrick’s
version of the events, one would be required to disregard the seemingly credible
testimony of her co-workers and the documentary evidence. Ms. Malbrough, the
supervisor present the night of the alleged incident, did not recall Ms. Garrick
informing her that she needed to leave work early due to a work injury. Similarly,
Mr. Scothorn, an assistant manager, did not recall that Ms. Garrick suffered a work-
related injury. While the employer’s report of injury indicates that Ms. Garrick
suffered an injury in September 2008, the report was not completed until October
2008, when Ms. Garrick completed documents for a leave of absence from Wal-Mart.
Witnesses who observed Ms. Garrick in a medical setting also cast doubt
on her claim. Dr. Colligan testified that he did not treat Ms. Garrick for a work-
related accident, and emergency room records of Lake Charles Memorial Hospital on
5 September 30, 2008, do not indicate that Ms. Garrick was involved in a work-related
accident.
Thus, we find that the WCJ did not manifestly err in finding that Ms.
Garrick failed to meet her burden of proving a work-related accident and/or injury.
IV.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the WCJ. Costs
of this appeal are assessed to Ms. Garrick.