Galiano v. Lucky Coin Machine Co.

177 So. 3d 742, 15 La.App. 5 Cir. 101, 2015 La. App. LEXIS 2023, 2015 WL 6080905
CourtLouisiana Court of Appeal
DecidedOctober 14, 2015
DocketNo. 15-CA-101
StatusPublished
Cited by1 cases

This text of 177 So. 3d 742 (Galiano v. Lucky Coin Machine 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
Galiano v. Lucky Coin Machine Co., 177 So. 3d 742, 15 La.App. 5 Cir. 101, 2015 La. App. LEXIS 2023, 2015 WL 6080905 (La. Ct. App. 2015).

Opinion

STEPHEN J. WINDHORST, Judge.

| ;>Appellants/defendants, Lucky Coin Machine Company (“Lucky Coin”) and Amtrust North America appeal the workers’ compensation judgment finding that the claimant, Nunzio Galiano, sustained a work-related injury. For the reasons that follow, the workers’ compensation judgment is reversed and rendered.

Facts and Procedural History

Claimant was employed by Lucky Coin for twelve years as a pool table technician. Claimant’s job required him to move pool tables, pinball machines, and foosball machines. He was required to move these items, including the 200 lb. slates for the pool tables, up and down stairs. Claimant had the assistance of a co-employee to set up the equipment.

In late August 2013, claimant began experiencing low back pain. Despite the pain, claimant continued to work through September and October without complaining or reporting the pain to his employer, Lucky Coin. Claimant testified that he did not report his back pain to his employer because he feared he would be |3terminated from employment. In the third week of October 2013, claimant testified that he had several jobs in one week that required him to carry the 200 lb. slates up stairs. After that week, claimant experienced intense back pain.

Claimant informed his supervisor that he had back pain and needed to go to the doctor. Claimant’s supervisor told him that he was needed at work that day and claimant needed to provide a one-week notice before going to a doctor’s appointment. Claimant testified that he cancelled two or three appointments before he could no longer stand the pain and scheduled an appointment with his family physician, Dr. Aarti M. Pais. Claimant testified that he initially believed his back pain was related to kidney problems.

[744]*744On November 6, 2013, Dr. Pais informed claimant that he did not have any kidney problems. Claimant testified that Dr. Pais asked him what he did for a living and claimant stated he was a pool table technician. Claimant testified that Dr. Pais allegedly told him that his back pain was related to his work. Claimant was diagnosed with sacroiliac (SI) joint dysfunction and was released to return to work on November 7, 2013, with restrictions.1 Claimant testified that he did not think his back pain was work-related until after Dr. Pais told him it was not his kidneys. Claimant returned to work the same day, reported Dr. Pais’ diagnosis, and gave the work restriction to his employer. Claimant testified “I don’t think I ever talked to my employees [sic] to tell them that it was, you know, it was the back.” Claimant was immediately sent to his employer’s workers’ compensation physician. Claimant testified that the physician told him he was not able to return to work.2

|4On November 6, 2013, claimant stopped working for his employer.3 Claimant applied for and received short term disability and unemployment benefits. After his short term disability ended, claimant then filed this disputed claim for workers’ compensation benefits on March 25, 2014. Appellants requested a preliminary determination on whether claimant’s injury was work-related. On June 13, 2014, the workers’ compensation judge (WCJ) determined that claimant had a work-related accident. Appellants disputed the WCJ’s determination and moved to set the matter for trial. After a trial on the merits, the WCJ rendered judgment in favor of claimant and against appellants. This appeal followed.

Law and Analysis

In their first assignment of error, appellants contend the WCJ erred in finding that claimant sustained a work-related accident when the undisputed evidence leaves the question of a work-related accident open to speculation and conjecture. Appellants contend that claimant’s allegations are not specific enough as to the time of the alleged injury and the activity that caused the alleged injury to satisfy the requirements of an accident as defined in La. R.S. 23:1021(1). Appellants also contend that the medical evidence does not support claimant’s contention that his back pain was caused by a work-related accident.

In opposition, claimant contends that repetitive or cumulative trauma to his back from a series of jobs during the third week in October 2013, triggered his back pain to the point he was no longer able to work and was the work-related accident which the WCJ correctly found to have occurred. Alternatively, claimant contends that his medical records indicate serious problems with his lumbar and there is a reasonable possibility of a causal relationship between his injury and his ^occupation by fact he was required to lift 200 lb. slates and the series of events in October.

An.employee seeking workers’ compensation benefits must prove “personal injury by accident arising out of and in the [745]*745course 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).

A workers’ compensation claimant has the burden of establishing a work-related accident by a preponderance of the evidence. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La.7/2/12), 93 So.3d 1253, 1257. A claimant’s testimony alone may be sufficient to prove that an unwitnessed accident occurred in the course and scope of employment, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the claimant’s version of the accident, and (2) the claimant’s testimony is corroborated by the circumstances following the alleged accident. Id.; Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La.1/19/11), 56 So.3d 215, 218-219. Corroboration of the claimant’s testimony may be provided by the testimony of fellow workers, spouses, friends, or by medical evidence. Ardoin, 56 So.3d at 219.

In determining whether a claimant has discharged his burden of proof, the workers’ compensation court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of his testimony. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). The findings of the workers’ compensation judge will not be set aside by a reviewing court unless they are found to be clearly wrong or | ^manifestly erroneous in light of the record viewed in its entirety. Dean v. Southmark Constr., 03-1051 (La.7/6/04), 879 So.2d 112, 117.

We find the WCJ committed manifest error in finding that claimant sustained a work-related accident. A review of the testimony and evidence discredits or casts serious doubt upon the claimant’s version of the accident.

First, claimant did not inform his employer that he sustained an injury to his low back as a result of a work-related accident. Claimant testified that he informed his supervisor, Thomas Vercelli, “I need to go see a doctor.” Claimant also testified that he did not believe his pain was work-related until after he saw Dr. Pais on November 6, 2013. Claimant testified, “Well, at first I thought it was regular backache, but then it kept on going. I thought it was my kidneys.”4 Even after

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177 So. 3d 742, 15 La.App. 5 Cir. 101, 2015 La. App. LEXIS 2023, 2015 WL 6080905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galiano-v-lucky-coin-machine-co-lactapp-2015.