David v. Vermilion Shell & Limestone Co.

153 So. 3d 1045, 13 La.App. 3 Cir. 863, 2014 WL 551031, 2014 La. App. LEXIS 330
CourtLouisiana Court of Appeal
DecidedFebruary 12, 2014
DocketNo. WCA 13-863
StatusPublished

This text of 153 So. 3d 1045 (David v. Vermilion Shell & Limestone 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
David v. Vermilion Shell & Limestone Co., 153 So. 3d 1045, 13 La.App. 3 Cir. 863, 2014 WL 551031, 2014 La. App. LEXIS 330 (La. Ct. App. 2014).

Opinion

EZELL, Judge.

11 Harris David appeals a trial court judgment which dismissed his claim for workers’ compensation benefits against his former employer, Vermillion Shell and Limestone. Mr. David alleges he suffered a compensable injury on August 30, 2010, when his eighteen-wheeler truck was rear-ended by another eighteen-wheeler truck. The workers’ compensation judge found that Mr. David failed to prove by a preponderance of the evidence that he suffered any injury or disability as a result of the accident. For the following reasons, we affirm the judgment of the Office of Workers’ Compensation.

FACTS

Mr. David was employed as a driver for Vermillion Shell and Limestone for approximately three-and-one-half years prior to the vehicular accident on August 30, 2010. On the day of the accident, Mr. David was travelling east on Interstate 10 across the Atchafalaya Basin Bridge. Another truck owned by Averitt Express was also travelling in the same direction. Apparently the Averitt Express driver fell asleep at the wheel and rear-ended the vehicle driven by Mr. David. The accident broke the rear glass, blew out a tire, and broke a rim on Mr. David’s vehicle.

After the accident, Mr. David drove to Abbeville to have the tire and glass repaired. Mr. David then went home to get some rest; after which, he got up and completed the delivery job he was attempting before the accident. Mr. David did not seek medical treatment and continued working for Vermillion Shell and Limestone after, the accident for approximately ten months.

[1047]*1047On June 17, 2011, Cody Miller, Mr. David’s supervisor, reprimanded Mr. David for texting on his phone while driving his truck. Mr. David left work and [ 2never returned. He filed a claim for unemployment benefits which was denied because he left his job without good cause.

Mr. David sought medical treatment for the first time after he left employment with Vermillion Shell and Limestone. He initially sought treatment with his family doctor who does not treat workers’ compensation injuries. Mr. David then saw an orthopedic surgeon, Dr. Michel Heard, on July 6, 2011. Mr. David told Dr. Heard that he was not initially hurting after the accident but started having pain a couple of days later. The pain progressed to the point that he had to stop working. Mr. David reported. neck and shoulder pain that radiated into his left arm. He also complained of low back pain that radiated into his left paralumbar area and left posterior buttocks.

After an examination, x-rays, MRIs, and five visits, Dr. Heard noted some preexisting changes. An MRI indicated a cervical herniation at C6-7, which Dr. Heard opined was caused by the vehicular accident on August 30, 2010. Dr. Heard further opined that the accident made Mr. David’s neck and low back pain symptomatic.

Mr. David filed a disputed claim for compensation on July 8, 2011, alleging that the rear-end collision caused his injuries. A hearing was held on July 27, 2012. The workers’ compensation judge found that Mr. David failed to prove his case by a preponderance of the evidence and dismissed his claim. Mr. David then filed the present appeal.

COMPENSABLE ACCIDENT

Mr. David asserts that the workers’ compensation judge was clearly wrong in finding that he failed to meet his burden in proving that he suffered an injury as a result of the August 80, 2010 work accident. Mr. David argues that the workers’ | ¡¡compensation judge placed too much emphasis on the fact that he did not seek medical treatment until ten months after the accident. He argues that delays or gaps in medical treatment have been found by the courts to be of little significance.

In written reasons for judgment, the workers’ compensation judge noted several inconsistencies in Mr. David’s testimony. She observed that Mr. David had admittedly concealed the fact that he suffered with high blood pressure from his employer, noting that high blood pressure can prevent the issuance of a commercial driver’s license. She also noted that Mr. David had not disclosed a previous workers’ compensation injury to Dr. Heard. Furthermore, she observed that Mr. David told Dr. Heard he quit work due to pain as opposed to quitting over a reprimand. Based on these observations, the workers’ compensation judge did not find Mr. David to be very credible.

A workers’ compensation judge’s findings of fact are reviewed under the manifest error/clearly wrong standard of review and the findings will not be set aside unless clearly wrong after reviewing the record in its entirety. Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112. When there is a conflict in testimony, reasonable evaluations of credibility and inferences of fact will not be disturbed upon review even though the appellate court may disagree. Id. Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of the trier of fact, “for only the factfinder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said.”

[1048]*1048Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

An employee must establish a causal connection between the work-related accident and the resulting complained-of disability to prove an entitlement to |4workers’ compensation benefits. Ashworth v. Administaff, Inc., 10-318 (La.App. 3 Cir. 10/6/10), 48 So.3d 1178. The employee’s burden is by a preponderance of the evidence. Id. “[I]f the probability of causation is equally balanced based on the evidence presented, then the employee has not carried [his] burden of proof.” Id. at 1181.

In addition to the inconsistencies noted by the workers’ compensation judge, Mr. David also admitted that in 1991 he fell down some stairs while working for the Louisiana Department of Transportation and Development. As a result of the accident, he suffered a back injury and was taken off work for two years. He also filed a workers’ compensation claim at that time. Mr. David testified that he told Dr. Heard about the 1991 accident, but Dr. Heard denied knowledge of any previous accident in his deposition. Mr. David admitted he did not report any previous injuries on Dr. Heard’s questionnaire. He also denied previously having any type of x-ray testing to Dr. Heard. However, admitted he had a CT scan in 1991 after his fall. He testified that he did not think the 1991 accident was relevant. He agreed that he told Dr. Heard he stopped working in June 2011 because he was in too much pain while admitting that he actually quit after he was approached about texting while driving.

Mr. David also testified that he does not drink. On further questioning, he agreed that he talks about drinking on Facebook but stated that he is only joking. Lonnie Abshire, Mr. David’s first cousin, disagreed with Mr. David and testified that Mr. David likes to drink.

Mr. David argues that he is entitled to a legal presumption of causation. This court has explained the claimant’s burden of proof and application of the legal presumption as follows:

|fi“An employee in a worker’s compensation action has the burden of establishing a causal link between the work-related accident and the subsequent disabling condition.” Miller v. Roger Miller Sand, Inc., 94-1151, p. 6 (La.11/30/94), 646 So.2d 330, 334.

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Related

Dean v. Southmark Const.
879 So. 2d 112 (Supreme Court of Louisiana, 2004)
Marks v. 84 Lumber Co.
939 So. 2d 723 (Louisiana Court of Appeal, 2006)
Walton v. Normandy Village Homes Ass'n, Inc.
475 So. 2d 320 (Supreme Court of Louisiana, 1985)
Miller v. Roger Miller Sand, Inc.
646 So. 2d 330 (Supreme Court of Louisiana, 1994)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Ashworth v. Administaff, Inc.
48 So. 3d 1178 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
153 So. 3d 1045, 13 La.App. 3 Cir. 863, 2014 WL 551031, 2014 La. App. LEXIS 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-v-vermilion-shell-limestone-co-lactapp-2014.