Graham v. Nissan

907 So. 2d 213, 2005 WL 1522605
CourtLouisiana Court of Appeal
DecidedJune 29, 2005
Docket39,656-WCA
StatusPublished
Cited by14 cases

This text of 907 So. 2d 213 (Graham v. Nissan) 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
Graham v. Nissan, 907 So. 2d 213, 2005 WL 1522605 (La. Ct. App. 2005).

Opinion

907 So.2d 213 (2005)

Barbara GRAHAM, Plaintiff-Appellant
v.
McKinney NISSAN, Defendant-Appellee.

No. 39,656-WCA.

Court of Appeal of Louisiana, Second Circuit.

June 29, 2005.

*215 Barbara Graham, In Proper Person.

Hurlburt, Privat & Monrose, P.L.C., by M. Blake Monrose, Shannon Seiler Dartez, Lafayette, for Appellee.

Before WILLIAMS, GASKINS and PEATROSS, JJ.

GASKINS, J.

In this workers' compensation case, the claimant, Barbara Graham, contends that she was stung by an insect in the course and scope of her employment as a car salesperson. She appealed the ruling of the worker's compensation judge (WCJ) which denied her claim for benefits, penalties, and attorney fees. Her former employer answered the appeal, complaining of the WCJ's decision to not penalize the claimant for willful misrepresentations. We affirm in part, reverse in part and remand.

FACTS

On September 1, 2001, the claimant was working for McKinney Nissan in Bossier City. She got up from her desk, began to walk, and suddenly collapsed. She was taken to the hospital by ambulance. She was diagnosed with a syncopal episode with a possible seizure. She reported a history of diabetes, as well as suffering diarrhea and nausea after lunch. That same day, she told Dr. John Horan that she did not recall what happened. The next day, she told Dr. Gurleen Sikand that she was sitting at her desk and could not hear anything. Unable to speak, she wrote "diabetic" on her hand and walked to a co-worker. She remembered nothing after that. On September 3, 2001, while *216 still in the hospital, she saw Dr. William Eaves and told him she recalled having sharp chest pains. On September 5, 2001, she told Dr. Allen Cox she recalled seeing a wasp near her desk and feeling a sharp sting on her thigh. Dr. Cox observed a small welt with a small dark center on her leg. Dr. William Washburn, an allergy specialist, consulted but was unable to positively confirm a reaction to an insect sting. She was discharged from the hospital on September 7, 2001.

On September 24, 2001, she saw Dr. Cox in his office. He removed what appeared to be a stinger from her right thigh.

The claimant filed a claim with the Office of Workers' Compensation on February 8, 2002. She asserted that she was entitled to benefits because she was stung by a wasp or bee and went into anaphylactic shock while closing a deal on a car. She contended that she injured her neck, back and head when she fell to the floor. In a supplemental petition, she stated that medical expenses associated with her work-related injuries had not been paid by her employer and that the employer had not authorized medical treatments. According to the claimant, the employer was arbitrarily and capriciously denying her benefits; she requested penalties and attorney fees.

Due to the claimant's failure to attend a mediation, her claim was dismissed on September 25, 2002. It was reinstated on November 18, 2002.

In an answer filed in January 2003, the employer raised the affirmative defense of misrepresentations concerning benefits under La. R.S. 23:1208.

The matter was tried on June 3, 2004. The WCJ noted in his oral reasons for judgment that he had "a lot of problems with credibility of Ms. Graham." The WCJ did not believe that the claimant was "stung by anything" and found that the evidence presented did not demonstrate why she collapsed. The WCJ concluded that the claimant did not sustain an accident within the course and scope of her employment and that she was not entitled to workers' compensation benefits. The claimant's request for penalties and attorney fees was denied because the employer reasonably controverted her claims.

Concluding that the claimant was "confused," the WCJ declined to hold that she had committed fraud, stating that he was going to give her "a break." Finding a lack of "willful intent" on the claimant's part, he therefore concluded that she had not violated La. R.S. 23:1208.

Judgment was signed on June 22, 2004.

CLAIMANT'S "ASSIGNMENTS"

The claimant appeals in proper person. She lists nine "assignments of error." They are: (1) the WCJ misstated her middle name as "June" instead of "Jan"; (2) the employer did not show that liquid was not poured down her throat causing her to have a seizure while she was unconscious; (3) the WCJ had "health problems" that "could have caused manifest error"; (4) the WCJ allowed fellow employee Retta Blanton's statement to paramedics about foam and liquid on the claimant's face; (5) the WCJ "committed manifest error in that [the claimant] had not known that a workmans compensation [sic] case can be filed anywhere but a workmans compensation court [sic]"; (6) the WCJ erred in its findings of fact; (7) the WCJ allowed "fraudulent papers" to be introduced; (8) the WCJ erred in not awarding hospital and medical bills, court costs, and "all awards due"; and (9) the WCJ erred because the claimant lost her house and her physical and emotional well being.

*217 The employer argues that since none of the claimant's assignments were argued in brief, they should all be deemed abandoned.

Assignments of error neither briefed nor argued in brief are deemed abandoned. URCA 2-12.4. Knotts v. Snelling Temporaries, 27,773 (La.App. 2d Cir.12/6/95), 665 So.2d 657; Brown v. Ruskin Mfg. Co., 33,015 (La.App. 2d Cir.4/5/00), 756 So.2d 667. At best, most of the claimant's "assignments" are only one-sentence complaints, and it is not even possible to discern the basis of some of them. However, in the interest of justice, we will construe the pro se claimant's "assignments" as presenting a single assignment of error challenging the WCJ's ruling that the claimant was not entitled to receive benefits.

ENTITLEMENT TO BENEFITS

Law

A plaintiff in a workers' compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Player v. International Paper Co., 39,254 (La.App. 2d Cir.1/28/05), 892 So.2d 781. If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the plaintiff fails to carry the burden of proof. Player, supra. Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Lewis v. Chateau D'Arbonne Nurse Care Center, 38,394 (La.App. 2d Cir.4/7/04), 870 So.2d 515.

Factual findings in a workers' compensation case are subject to the manifest error or clearly wrong standard of appellate review. Culotta v. A.L. & W. Moore Trucking Company, 35,344 (La.App. 2d Cir.3/5/03), 839 So.2d 1063, writ denied, XXXX-XXXX (La.5/30/03), 845 So.2d 1052.

When there is a conflict of testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel its own inferences and evaluations are reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The WCJ is afforded considerable discretion in evaluating expert testimony, and the decision to accept the testimony of one expert over the conflicting testimony of another can virtually never be manifestly erroneous. Kidd v. Brown Radiator & Frame, 38,729 (La.App. 2d Cir.12/22/04), 890 So.2d 796, writ denied, XXXX-XXXX (La.3/24/05), 896 So.2d 1042.

Insect bites or stings are compensable as "accidents" under the workers' compensation law. Oalmann v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Allen v. Graphic Packaging International, Inc.
211 So. 3d 1219 (Louisiana Court of Appeal, 2017)
Magee v. Williams
197 So. 3d 265 (Louisiana Court of Appeal, 2016)
Tingle v. Page Boiler, Inc.
186 So. 3d 220 (Louisiana Court of Appeal, 2016)
Davis v. GMTG Shreveport
162 So. 3d 522 (Louisiana Court of Appeal, 2015)
Stevens v. City of Shreveport
152 So. 3d 1071 (Louisiana Court of Appeal, 2014)
Greenwood Community Center v. Calep
132 So. 3d 470 (Louisiana Court of Appeal, 2014)
Goldsby v. PILGRIM'S PRIDE CORP.
33 So. 3d 969 (Louisiana Court of Appeal, 2010)
Rainwater v. TANGO TRANSPORT
32 So. 3d 1174 (Louisiana Court of Appeal, 2010)
Littleton v. Richardson Medical Center
954 So. 2d 812 (Louisiana Court of Appeal, 2007)
Brooks v. MADISON PARISH SERVICE DIST. HOS.
954 So. 2d 207 (Louisiana Court of Appeal, 2007)
Murphy v. Kavanaugh
940 So. 2d 693 (Louisiana Court of Appeal, 2006)
Franklin v. HealthSouth
940 So. 2d 83 (Louisiana Court of Appeal, 2006)
Reynolds Industrial Contractors v. Fox
935 So. 2d 783 (Louisiana Court of Appeal, 2006)
Hammock v. Weyerhaeuser
917 So. 2d 733 (Louisiana Court of Appeal, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
907 So. 2d 213, 2005 WL 1522605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-nissan-lactapp-2005.