Guidry v. Brewer

857 So. 2d 623, 2003 WL 22220190
CourtLouisiana Court of Appeal
DecidedSeptember 26, 2003
Docket2002 CA 2693
StatusPublished
Cited by5 cases

This text of 857 So. 2d 623 (Guidry v. Brewer) 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
Guidry v. Brewer, 857 So. 2d 623, 2003 WL 22220190 (La. Ct. App. 2003).

Opinion

857 So.2d 623 (2003)

Guy M. GUIDRY
v.
Clarence BREWER d/b/a Brewer's Construction

No. 2002 CA 2693.

Court of Appeal of Louisiana, First Circuit.

September 26, 2003.

*624 William R. Mustian, III, Metairie, Counsel for Plaintiff/Appellant Guy M. Guidry.

John J. Rabalais, Covington, Counsel for Defendant/Appellee Clarence Brewer d/b/a Brewer's Construction.

Before: PETTIGREW, DOWNING and McCLENDON, JJ.

DOWNING, J.

Guy Guidry (Guidry) appeals a judgment dismissing his workers' compensation action against his employer, Clarence Brewer, d/b/a Brewer's Construction Company (Brewer). The Workers' Compensation Judge (WCJ) found that Guidry failed to establish a work-related accident. Brewer answered the appeal alleging that the WCJ erred in failing to order the forfeiture of Guidry's benefits and in assessing Brewer with costs. Both parties contested dismissal of their respective penalty claims. For the following reasons, we affirm the workers' compensation judgment.

FACTS AND PROCEDURAL HISTORY

Brewer was renovating an apartment complex. He hired Guy Guidry as a contract labor employee to help with the repairs. Guidry claimed his back was injured on the job on April 18, 2001, while lifting a piece of sheetrock. The only witness to this event was his helper and friend, Marc Hammac. Guidry had worked sporadically for Brewer for several years, but Hammac was only hired one week prior to the incident. At the time, Guidry was taken to East Jefferson General Hospital, and on May 13, 2001, he went to the emergency room at the St. Tammany Parish Hospital for acute low back pain. At both hospitals he received medicine for pain and a muscle relaxant. He continued treatment for back pain. On August 29, 2001, an MRI confirmed that Guidry had a herniated disc at L 4-5. Brewer, however, disputed that Guidry incurred the injury while working as his employee.

The matter was tried October 2, 2002. Judgment was rendered October 22, 2002, dismissing the action. The WCJ concluded that Guidry failed to meet his burden of *625 proof to establish that he incurred a work-related accident. The WCJ further concluded that while there were inconsistent statements and misrepresentations on both sides, the discrepancies did not meet the criteria to impose penalties under La.R.S. 23:1208. He therefore dismissed each party's La.R.S. 23:1208 penalty claim. He cast Brewer with all costs of litigation. From that judgment, Guidry appealed and Brewer answered the appeal.

GUIDRY'S ASSIGNMENTS OF ERROR

Guidry alleges that the trial court erred:
In finding insufficient proof of an accident where an eyewitness testified to the details and that testimony was unchallenged.
In failing to assess penalties pursuant to La.R.S. 23:1208(D) where there was evidence that the employer schemed to provide perjured testimony to defeat the claim.
In not reaching issues of causation, extent of disability, compensation rate, medical bills and authorization for surgery.

BREWER'S ANSWER TO APPEAL

Brewer alleges that the trial court erred:

In failing to assess penalties and attorney fees against the employee pursuant to La.R.S. 23:1208. And failing to order employee to forfeit the benefit entitlement when the employee misrepresented his medical history and the facts of the accident.
In assessing the employer with all costs of the proceeding when the claimant did not prevail in his claim.

WORK-RELATED ACCIDENT

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. La.R.S. 23:1031. The employee who claims a right to collect workers compensation benefits has the burden of proving a work-related accident by a preponderance of the evidence. Issa v. LL&G Construction, Inc., 02-1215, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 912, 914. Pursuant to La.R.S. 23:1021(1) accident means 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 that is more than simply a gradual deterioration or progressive degeneration. Id. The claimant is not required to establish the exact cause of the disability, but the claimant must demonstrate that the accident had a causal connection with the disability. Quinones v. United States Fidelity and Guaranty Company, 93-1648, p. 6 (La.1/14/94), 630 So.2d 1303,1306-1307.

Guidry alleges that the trial court erred in finding insufficient proof that his herniated disc was incurred by an accident while working for Brewer. Guidry contends the evidence proved that when lifting a board of sheetrock, he felt a "pop" in his back and dropped to his knees in pain. Guidry argues that this incident should have been considered an accident by the WCJ because he was relatively symptom free before picking up the sheetrock and incapacitated afterwards. Guidry testified that Mark Hammac, his helper at the construction site, was an eyewitness. Guidry argues that the WCJ disregarded Hammac's testimony and also disregarded the testimony of Dr. Waguespack, his orthopedic surgeon.

We first address Hammac's deposition testimony. While Hammac might be truthful in his testimony, the recitation of facts, as he witnessed them, does not prove that a "precipitous event" caused Guidry's *626 herniated disc. Hammac merely confirmed that Guidry complained about his back hurting while carrying a board of sheetrock and that he dropped to his knees, nearly in tears with pain. This testimony fails to show that picking up the material caused Guidry's ruptured disc or that some other cause was not responsible for the injury.

Dr. Waguespack's deposition testimony might arguably have proven that an accident occurred because he did testify that in his opinion Guidry's back injury occurred when he picked up the sheetrock while working for Brewer. Dr. Waguespack's deposition testimony stated that Guidry had an MRI September 4, 2001, indicating a disc herniation at L 4-5 and that this injury was the cause of the pain in his back and down his left leg and foot.

The WCJ found, however, that Dr. Waguespack's opinion was based upon "faulty, incomplete medical histories provided by Guidry." The record reflects that Guidry made numerous inconsistent statements with respect to his prior medical history. Guidry omitted the fact that he was previously treated for similar back pain eight years earlier and for a urinary tract infection and sciatica manifesting similar symptoms six months prior to this incident. These omissions are in direct contradiction to medical records introduced into evidence. However, Guidry testified that after being conservatively treated following both of these incidents, he had no further symptoms until the accident while working for Brewer.

On October 12, 2000, Guidry went to the Washington-St. Tammany Medical Center complaining that he hurt his back when lifting a barbeque grill. This report, generated six months prior to the April 2001 alleged accident, did show some osteoporosis and degeneration of the spine, but the diagnosis was a urinary tract infection and sciatica. While Guidry's complaints to Dr. Nanjappa were similar to those alleged in the accident at issue, he was treated for the infection and not for spinal problems.

Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
857 So. 2d 623, 2003 WL 22220190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guidry-v-brewer-lactapp-2003.