Esthay v. Manpower

627 So. 2d 182, 1993 La. App. LEXIS 2090, 1993 WL 188829
CourtLouisiana Court of Appeal
DecidedJune 2, 1993
DocketNo. 92-1130
StatusPublished

This text of 627 So. 2d 182 (Esthay v. Manpower) 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
Esthay v. Manpower, 627 So. 2d 182, 1993 La. App. LEXIS 2090, 1993 WL 188829 (La. Ct. App. 1993).

Opinion

KNOLL, Judge.

Plaintiff, Phillip Esthay, filed a worker’s compensation claim against his employer, Manpower, Inc., and its insurer, Aetna Casualty & Surety Company, for injuries he sustained in a work related accident on December 7, 1988. Aetna paid worker’s compensation benefits and medical expenses from December 1988, until October 30,1990. Esthay then filed this compensation claim, seeking worker’s compensation benefits, penalties, and attorney’s fees. On March 10, 1992, the hearing officer awarded Esthay temporary total disability benefits in the amount of $120 per week from December 7, 1988, continuing for the duration of the disability, subject to a credit for all amounts previously paid. He also awarded Esthay all necessary medical, surgical, and hospital expenses, and denied Esthay’s claim for penalties and attorney’s fees.

On March 13, 1992, defendants filed a motion for a new trial on the basis of newly discovered evidence, a comparison of x-rays of plaintiffs rib fractures taken after an earlier accident with those taken in connection with this present accident. The hearing officer denied the motion. Thereafter, defendants suspensively appealed the judgment, asserting that the hearing officer erred in finding that Esthay met his burden of proving that he had suffered a compensable injury and the hearing officer abused his discretion in denying their motion for a new trial. Esthay answered the appeal and filed his own appeal, seeking penalties and attorney’s fees.

For reasons which follow, we affirm the judgment of the hearing officer, and amend the judgment to award penalties and attorney’s fees.

FACTS

In his worker’s compensation claim form, Esthay claims that he injured his legs, head, neck, and lumbar spine in a fall on December 7, 1988, while working for Manpower as a laborer at $4.50 per hour. At the hearing, he testified that as he was sweeping an aisle, he either tripped over a tumbuckle, a steel curb approximately 3^1 feet wide and 4 inches high, or slipped on something. He contends that an unknown oil-like substance caused or contributed to the accident and that a couple of days after the accident,, he found axle grease on his right shoe. He testified that he hit his middle torso on the steel curb, broke his ribs and hurt his back.

The record shows that prior to this injury, Esthay injured his back on August 18, 1986, in a fall while working for a company in Houston. Additionally, he had fractured his fifth, sixth, and seventh ribs on the left side in 1987, while working on a car at his home. Dr. Alexander Gol took x-rays on February 16, 1987, which showed a herniated disc at the L4-5 level and fractures of his ribs. On February 19, 1987, Dr. Clark A. Gunderson performed a lumbar laminectomy on Esthay.

After the 1988 fall, Esthay went to the emergency room at Lake Charles Memorial Hospital. Based on x-rays taken of Esthay at the emergency room of Memorial Hospital, Dr. Marcus Pittman, III, evaluated Es-thay’s condition as irritation of the cartilage where the rib cage meets the breast bone, and old left fifth and seventh rib fractures. Dr. Pittman recommended that his findings be correlated with the clinical findings.

Subsequently, Esthay saw Dr. Ford on December 12 and 19 of 1988. Dr. Ford took x-rays, which showed his rib fracture. Dr. Ford’s x-rays of Esthay showed what appeared to be a fracture of the seventh rib on the left side. His opinion that the fracture appeared to be recent differed from that of Dr. Pittman.

In addition to the rib fracture, Esthay claims that he suffered a lower back injury. Although the trial record does not contain much evidence concerning the back injury, documentary evidence from Dr. Gunderson indicates that on May 19,-1990, Esthay underwent a repeat lumbar laminectomy and [184]*184discectomy L4-5 with repair of pseudarthro-sis L4 to sacrum. Dr. Gunderson, in a memo dated November 14, 1990, indicated that Es-thay was currently disabled and would remain disabled for an undetermined length of time.

COMPENSATION BENEFITS

Defendants contend that the hearing officer was clearly erroneous in his conclusion that Esthay proved by a preponderance of the evidence that he suffered a compensa-ble work related accident. They argue that Esthay staged the accident and attempt to, attack his credibility.

The version of LSA-R.S. 23:1031 in effect at the time of Esthay’s injury provides:

“If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.”

The Louisiana Supreme Court, in Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992), articulated the burden of proof and standard of review in worker’s compensation cases:

“Despite the liberal construction of the statute afforded the worker in a compensation action, the worker’s burden of proof is not relaxed. Rather, as in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. A worker’s testimony 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. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.
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.’ The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.” (Citations omitted.)

In Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989), the Louisiana Supreme Court stated:

“When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” (Citations omitted).

The record bears out that the hearing officer was presented with Esthay’s consistent assertion that he was injured on the job, as well as evidence which questioned Es-thay’s character.

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Bluebook (online)
627 So. 2d 182, 1993 La. App. LEXIS 2090, 1993 WL 188829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esthay-v-manpower-lactapp-1993.