Dellavalle v. Dynegy Midstream Services

848 So. 2d 716, 2002 La.App. 4 Cir. 2479, 2003 La. App. LEXIS 1702, 2003 WL 21299829
CourtLouisiana Court of Appeal
DecidedMay 28, 2003
DocketNo. 2002-CA-2479
StatusPublished
Cited by3 cases

This text of 848 So. 2d 716 (Dellavalle v. Dynegy Midstream Services) 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
Dellavalle v. Dynegy Midstream Services, 848 So. 2d 716, 2002 La.App. 4 Cir. 2479, 2003 La. App. LEXIS 1702, 2003 WL 21299829 (La. Ct. App. 2003).

Opinions

MAMES F. McKAY III, Judge.

The claimant, Anthony Dellavalle, appeals the judgment of the Office of Workers’ Compensation (OWC) judgment denying his claim for benefits. The OWC judge found that the claimant failed to meet his burden of proof by a preponderance of the evidence that he was entitled to OWC benefits.

[718]*718The defendant, Dynegy Midstream Services (Dynegy), employed Anthony Della-valle for the past ten years in the area of electrical maintenance. His daily job activities involved lifting heavy weights and manual labor. It is alleged that on April 28, 2000, Mr. Dellavalle suffered a heart attack, which resulted in an emergency angioplasty and stint insertion.1 On May 1, 2000, his doctor, Shmuel Shapira, discharged him and placed him in cardiac rehabilitation. On June 22, 2000, he returned to his job at Dynegy, after being compelled to return by the plant manager, Mr. Bryan Crimson; apparently, the requisite company paperwork and procedure had not been completed.2 On July 16, 2000, he assisted a co-worker, Stanley Dousette, in the removal of a sponge oil pump motor, which entailed | {.removing bolts from a motor. During this activity, Mr. Dellavalle allegedly experienced upper torso pain or chest pains and neck pains. His supervisor and plant manager, Bryan Crimson, ordered him home and suggested that he make an appointment with his cardiologist. He made an appointment with his cardiologist, Dr. Saroj T. Tampira, who ordered additional testing. On July 27, 2000, Dr. Tampira conducted an angio-gram. The following day he performed a second angioplasty in an attempt to alleviate Mr. Dellavalle’s pain; these procedures did not alleviate Mr. Dellavalle’s pain. He visited Dr. Tampira again on August 14, 2000 and August 18, 2000, complaining of severe pain. Dr. Tampira ordered x-rays to rule out any possible causes of pain other than cardiac pain. The x-ray revealed two ruptured discs. He was referred to a neurosurgeon, Dr. Bryant G. George, Sr., and a pulmonologist, Dr. Joe Johnson. Dr. George ordered an MRI, which was performed on September 6, 2000. The MRI revealed a left side disc herniation at the C5-6 and C6-7 levels. Dr. George recommended surgery.3 Mr. Dellavalle made a claim for workers’ compensation benefits relevant to his asserted work related accident, which he claims occurred on July 16, 2000. Dynegy rejected this demand.

The matter went to trial on May 16, 2002. The OWC judge held that the claimant failed to prove by a preponderance of the evidence that an accident occurred at work. Claimant’s motion for a new trial was denied. Mr. Dellavalle now appeals the judgment of the OWC.

pOn appeal, Mr. Dellavalle contends that the OWC erred in its findings that he had not carried his burden of proof that his injury was work related.

It is a well-settled principle that the provisions of the workers’ compensation scheme should be liberally interpreted in favor of the worker. Bynum v. Capital City Press, Inc., 96-1395 p. 5-6 (La.7/2/96), 676 So.2d 582, 586.

The standard of review for findings of fact by a hearing officer in a workers’ compensation case is “manifest error,” and it is the appellate court’s duty to determine not whether the factfinder’s conclusion was right or wrong, but whether it was reasonable. Where there are two permissible views of the evidence, a factfin-der’s choice between them can never be manifestly erroneous. Seal v. Gaylord [719]*719Container Corp., 97-0688, p. 4 (La. 12/2/97), 704 So.2d 1161, 1164.

The Louisiana Supreme Court determined that the same standard of review applicable to factual findings of district courts is also applicable to factual findings of a workers’ compensation judge. Jurisprudence clearly establishes that in workers’ compensation cases, the appropriate standard of review to be applied by appellate courts is the “manifest error-clearly wrong” standard. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556; Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710; Brown v. Coastal Construction & Engineering, Inc., 96-2705, p. 4 (La.App. 1st Cir.11/7/97), 704 So.2d 8, 10. For an appellate court to reverse a workers’ compensation judge’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the |4workers’ compensation judge or that the record establishes that the finding is clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the workers’ compensation judge’s finding. The reviewing court must review the record in its entirety to determine whether the workers’ compensation judge’s finding was clearly wrong or manifestly erroneous. See Stobart, supra at 882.

In order to recover workers’ compensation benefits, a worker must first prove that he suffered an injury by an accident arising out of and in the course of his employment. La.R.S. 23:1031(A). An accident is defined as 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.” La.R.S. 23:1021(1).

La. R.S. 23:1031 provides compensation if an employee sustains personal injury as the result of an accident arising out of and in the course of employment. Daspit v. Southern Eagle Sales & Services, Inc., 98-1685 (La.App. 4 Cir. 1/20/99), 726 So.2d 1079. To recover workers’ compensation benefits, an employee must show that he received a personal injury by an accident arising out of and in the course and scope of his employment, and that his injury necessitated medical treatment or rendered the employee disabled, or both. Haws v. Professional Sewer Rehabilitation, Inc. 98-2846 (La.App. 1 Cir. 2/18/00), 763 So.2d 683. The claimant has the burden of proof to establish a work-related injury by a preponderance of the evidence. Daspit, supra. Claimants in a workers’ compensation proceeding have the initial burden of proof as to causation. Dean v. K-Mart Corp., 97-2850 (La.App. 4 Cir. 7/29/98), 720 So.2d 349, unit denied 98-2314 (La.11/13/98), 731 So.2d 265. The workers’ compensation claimant must prove by a preponderance of the evidence that an employment accident had a causal relationship -to the disability; if the testimony leaves the probabilities evenly balanced, the claimant has failed to carry the burden of persuasion. Harvey v. Bogalusa Concrete, Inc., 97-2945 (La.App. 1 Cir. 9/25/98), 719 So.2d 1130. Once the injured employee carries his initial burden of proving a causal connection between the accident and his disabling condition, the burden shifts to the employer to produce evidence that it is more probable than not that the injury was not caused by a work related accident. [720]*720Burrell v. Evans Industries, 99-1194 (La.App. 5 Cir. 4/25/00), 761 So.2d 618, writ denied 2000-1493 (La.6/30/00), 766 So.2d 545.

The primary issue presented for decision on appeal is whether appellant proved by a preponderance of the evidence, before the OWC, that he had an accident under La. R.S. 23:1031(A).

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Bluebook (online)
848 So. 2d 716, 2002 La.App. 4 Cir. 2479, 2003 La. App. LEXIS 1702, 2003 WL 21299829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dellavalle-v-dynegy-midstream-services-lactapp-2003.