Garrick v. Wal-Mart Stores, Inc.

66 So. 3d 594, 11 La.App. 3 Cir. 94, 2011 La. App. LEXIS 703, 2011 WL 2135565
CourtLouisiana Court of Appeal
DecidedJune 1, 2011
Docket11-94
StatusPublished

This text of 66 So. 3d 594 (Garrick v. Wal-Mart Stores, Inc.) 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
Garrick v. Wal-Mart Stores, Inc., 66 So. 3d 594, 11 La.App. 3 Cir. 94, 2011 La. App. LEXIS 703, 2011 WL 2135565 (La. Ct. App. 2011).

Opinion

THIBODEAUX, Chief Judge.

hThe 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 12reported 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. Malb-rough 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 *596 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.

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 |4Ms. 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 es *597 tablish ‘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 1 aversion 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.

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Related

Bruno v. Harbert Intern. Inc.
593 So. 2d 357 (Supreme Court of Louisiana, 1992)
Dean v. Southmark Const.
879 So. 2d 112 (Supreme Court of Louisiana, 2004)
Stutes v. Koch Services, Inc.
649 So. 2d 987 (Louisiana Court of Appeal, 1994)

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66 So. 3d 594, 11 La.App. 3 Cir. 94, 2011 La. App. LEXIS 703, 2011 WL 2135565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrick-v-wal-mart-stores-inc-lactapp-2011.