STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 13-863
HARRIS DAVID
VERSUS
VERMILION SHELL & LIMESTONE CO.,INC.
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 4 PARISH OF VERMILION, NO. 11-05822 SHARON MORROW, WORKERS’ COMPENSATION JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Marc T. Amy, Billy Howard Ezell, and John E. Conery, Judges.
AFFIRMED.
Harry K. Burdette The Glenn Armentor Law Corporation 300 Stewart St. Lafayette, LA 70501 (337) 233-1471 COUNSEL FOR PLAINTIFF/APPELLANT: Harris David Mark D. Boyer Boyer, Hebert, Abels & Angelle, LLC 133 Aspen Square, Ste F Denham Springs, LA 70726 (225) 664-4335 COUNSEL FOR DEFENDANT/APPELLEE: Vermilion Shell & Limestone Co., Inc. EZELL, Judge.
Harris David appeals a trial court judgment which dismissed his claim for
workers’ compensation benefits against his former employer, Vermillion Shell and
Limestone. Mr. David alleges he suffered a compensable injury on August 30,
2010, when his eighteen-wheeler truck was rear-ended by another eighteen-
wheeler truck. The workers’ compensation judge found that Mr. David failed to
prove by a preponderance of the evidence that he suffered any injury or disability
as a result of the accident. For the following reasons, we affirm the judgment of
the Office of Workers’ Compensation.
FACTS
Mr. David was employed as a driver for Vermillion Shell and Limestone for
approximately three-and-one-half years prior to the vehicular accident on August
30, 2010. On the day of the accident, Mr. David was travelling east on Interstate
10 across the Atchafalaya Basin Bridge. Another truck owned by Averitt Express
was also travelling in the same direction. Apparently the Averitt Express driver
fell asleep at the wheel and rear-ended the vehicle driven by Mr. David. The
accident broke the rear glass, blew out a tire, and broke a rim on Mr. David’s
vehicle.
After the accident, Mr. David drove to Abbeville to have the tire and glass
repaired. Mr. David then went home to get some rest; after which, he got up and
completed the delivery job he was attempting before the accident. Mr. David did
not seek medical treatment and continued working for Vermillion Shell and
Limestone after the accident for approximately ten months.
On June 17, 2011, Cody Miller, Mr. David’s supervisor, reprimanded Mr.
David for texting on his phone while driving his truck. Mr. David left work and never returned. He filed a claim for unemployment benefits which was denied
because he left his job without good cause.
Mr. David sought medical treatment for the first time after he left
employment with Vermillion Shell and Limestone. He initially sought treatment
with his family doctor who does not treat workers’ compensation injuries. Mr.
David then saw an orthopedic surgeon, Dr. Michel Heard, on July 6, 2011. Mr.
David told Dr. Heard that he was not initially hurting after the accident but started
having pain a couple of days later. The pain progressed to the point that he had to
stop working. Mr. David reported neck and shoulder pain that radiated into his left
arm. He also complained of low back pain that radiated into his left paralumbar
area and left posterior buttocks.
After an examination, x-rays, MRIs, and five visits, Dr. Heard noted some
preexisting changes. An MRI indicated a cervical herniation at C6-7, which Dr.
Heard opined was caused by the vehicular accident on August 30, 2010. Dr. Heard
further opined that the accident made Mr. David’s neck and low back pain
symptomatic.
Mr. David filed a disputed claim for compensation on July 8, 2011, alleging
that the rear-end collision caused his injuries. A hearing was held on July 27, 2012.
The workers’ compensation judge found that Mr. David failed to prove his case by
a preponderance of the evidence and dismissed his claim. Mr. David then filed the
present appeal.
COMPENSABLE ACCIDENT
Mr. David asserts that the workers’ compensation judge was clearly wrong
in finding that he failed to meet his burden in proving that he suffered an injury as
a result of the August 30, 2010 work accident. Mr. David argues that the workers’
2 compensation judge placed too much emphasis on the fact that he did not seek
medical treatment until ten months after the accident. He argues that delays or
gaps in medical treatment have been found by the courts to be of little significance.
In written reasons for judgment, the workers’ compensation judge noted
several inconsistencies in Mr. David’s testimony. She observed that Mr. David
had admittedly concealed the fact that he suffered with high blood pressure from
his employer, noting that high blood pressure can prevent the issuance of a
commercial driver’s license. She also noted that Mr. David had not disclosed a
previous workers’ compensation injury to Dr. Heard. Furthermore, she observed
that Mr. David told Dr. Heard he quit work due to pain as opposed to quitting over
a reprimand. Based on these observations, the workers’ compensation judge did
not find Mr. David to be very credible.
A workers’ compensation judge’s findings of fact are reviewed under the
manifest error/clearly wrong standard of review and the findings will not be set
aside unless clearly wrong after reviewing the record in its entirety. Dean v.
Southmark Const., 03-1051 (La. 7/6/04), 879 So.2d 112. When there is a conflict
in testimony, reasonable evaluations of credibility and inferences of fact will not be
disturbed upon review even though the appellate court may disagree. Id.
Furthermore, when factual findings are based on determinations regarding the
credibility of witnesses, the manifest error standard demands great deference to the
findings of the trier of fact, “for only the factfinder can be aware of the variations
in demeanor and tone that bear so heavily on the listener’s understanding and
belief in what is said.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).
An employee must establish a causal connection between the work-related
accident and the resulting complained-of disability to prove an entitlement to
3 workers’ compensation benefits. Ashworth v. Administaff, Inc., 10-318 (La.App. 3
Cir. 10/6/10), 48 So.3d 1178. The employee’s burden is by a preponderance of the
evidence. Id. “[I]f the probability of causation is equally balanced based on the
evidence presented, then the employee has not carried [his] burden of proof.” Id.
at 1181.
In addition to the inconsistencies noted by the workers’ compensation judge,
Mr. David also admitted that in 1991 he fell down some stairs while working for
the Louisiana Department of Transportation and Development. As a result of the
accident, he suffered a back injury and was taken off work for two years. He also
filed a workers’ compensation claim at that time. Mr. David testified that he told
Dr. Heard about the 1991 accident, but Dr. Heard denied knowledge of any
previous accident in his deposition. Mr. David admitted he did not report any
previous injuries on Dr. Heard’s questionnaire. He also denied previously having
any type of x-ray testing to Dr. Heard. However, admitted he had a CT scan in
1991 after his fall. He testified that he did not think the 1991 accident was relevant.
He agreed that he told Dr. Heard he stopped working in June 2011 because he was
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
WCA 13-863
HARRIS DAVID
VERSUS
VERMILION SHELL & LIMESTONE CO.,INC.
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 4 PARISH OF VERMILION, NO. 11-05822 SHARON MORROW, WORKERS’ COMPENSATION JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Marc T. Amy, Billy Howard Ezell, and John E. Conery, Judges.
AFFIRMED.
Harry K. Burdette The Glenn Armentor Law Corporation 300 Stewart St. Lafayette, LA 70501 (337) 233-1471 COUNSEL FOR PLAINTIFF/APPELLANT: Harris David Mark D. Boyer Boyer, Hebert, Abels & Angelle, LLC 133 Aspen Square, Ste F Denham Springs, LA 70726 (225) 664-4335 COUNSEL FOR DEFENDANT/APPELLEE: Vermilion Shell & Limestone Co., Inc. EZELL, Judge.
Harris David appeals a trial court judgment which dismissed his claim for
workers’ compensation benefits against his former employer, Vermillion Shell and
Limestone. Mr. David alleges he suffered a compensable injury on August 30,
2010, when his eighteen-wheeler truck was rear-ended by another eighteen-
wheeler truck. The workers’ compensation judge found that Mr. David failed to
prove by a preponderance of the evidence that he suffered any injury or disability
as a result of the accident. For the following reasons, we affirm the judgment of
the Office of Workers’ Compensation.
FACTS
Mr. David was employed as a driver for Vermillion Shell and Limestone for
approximately three-and-one-half years prior to the vehicular accident on August
30, 2010. On the day of the accident, Mr. David was travelling east on Interstate
10 across the Atchafalaya Basin Bridge. Another truck owned by Averitt Express
was also travelling in the same direction. Apparently the Averitt Express driver
fell asleep at the wheel and rear-ended the vehicle driven by Mr. David. The
accident broke the rear glass, blew out a tire, and broke a rim on Mr. David’s
vehicle.
After the accident, Mr. David drove to Abbeville to have the tire and glass
repaired. Mr. David then went home to get some rest; after which, he got up and
completed the delivery job he was attempting before the accident. Mr. David did
not seek medical treatment and continued working for Vermillion Shell and
Limestone after the accident for approximately ten months.
On June 17, 2011, Cody Miller, Mr. David’s supervisor, reprimanded Mr.
David for texting on his phone while driving his truck. Mr. David left work and never returned. He filed a claim for unemployment benefits which was denied
because he left his job without good cause.
Mr. David sought medical treatment for the first time after he left
employment with Vermillion Shell and Limestone. He initially sought treatment
with his family doctor who does not treat workers’ compensation injuries. Mr.
David then saw an orthopedic surgeon, Dr. Michel Heard, on July 6, 2011. Mr.
David told Dr. Heard that he was not initially hurting after the accident but started
having pain a couple of days later. The pain progressed to the point that he had to
stop working. Mr. David reported neck and shoulder pain that radiated into his left
arm. He also complained of low back pain that radiated into his left paralumbar
area and left posterior buttocks.
After an examination, x-rays, MRIs, and five visits, Dr. Heard noted some
preexisting changes. An MRI indicated a cervical herniation at C6-7, which Dr.
Heard opined was caused by the vehicular accident on August 30, 2010. Dr. Heard
further opined that the accident made Mr. David’s neck and low back pain
symptomatic.
Mr. David filed a disputed claim for compensation on July 8, 2011, alleging
that the rear-end collision caused his injuries. A hearing was held on July 27, 2012.
The workers’ compensation judge found that Mr. David failed to prove his case by
a preponderance of the evidence and dismissed his claim. Mr. David then filed the
present appeal.
COMPENSABLE ACCIDENT
Mr. David asserts that the workers’ compensation judge was clearly wrong
in finding that he failed to meet his burden in proving that he suffered an injury as
a result of the August 30, 2010 work accident. Mr. David argues that the workers’
2 compensation judge placed too much emphasis on the fact that he did not seek
medical treatment until ten months after the accident. He argues that delays or
gaps in medical treatment have been found by the courts to be of little significance.
In written reasons for judgment, the workers’ compensation judge noted
several inconsistencies in Mr. David’s testimony. She observed that Mr. David
had admittedly concealed the fact that he suffered with high blood pressure from
his employer, noting that high blood pressure can prevent the issuance of a
commercial driver’s license. She also noted that Mr. David had not disclosed a
previous workers’ compensation injury to Dr. Heard. Furthermore, she observed
that Mr. David told Dr. Heard he quit work due to pain as opposed to quitting over
a reprimand. Based on these observations, the workers’ compensation judge did
not find Mr. David to be very credible.
A workers’ compensation judge’s findings of fact are reviewed under the
manifest error/clearly wrong standard of review and the findings will not be set
aside unless clearly wrong after reviewing the record in its entirety. Dean v.
Southmark Const., 03-1051 (La. 7/6/04), 879 So.2d 112. When there is a conflict
in testimony, reasonable evaluations of credibility and inferences of fact will not be
disturbed upon review even though the appellate court may disagree. Id.
Furthermore, when factual findings are based on determinations regarding the
credibility of witnesses, the manifest error standard demands great deference to the
findings of the trier of fact, “for only the factfinder can be aware of the variations
in demeanor and tone that bear so heavily on the listener’s understanding and
belief in what is said.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).
An employee must establish a causal connection between the work-related
accident and the resulting complained-of disability to prove an entitlement to
3 workers’ compensation benefits. Ashworth v. Administaff, Inc., 10-318 (La.App. 3
Cir. 10/6/10), 48 So.3d 1178. The employee’s burden is by a preponderance of the
evidence. Id. “[I]f the probability of causation is equally balanced based on the
evidence presented, then the employee has not carried [his] burden of proof.” Id.
at 1181.
In addition to the inconsistencies noted by the workers’ compensation judge,
Mr. David also admitted that in 1991 he fell down some stairs while working for
the Louisiana Department of Transportation and Development. As a result of the
accident, he suffered a back injury and was taken off work for two years. He also
filed a workers’ compensation claim at that time. Mr. David testified that he told
Dr. Heard about the 1991 accident, but Dr. Heard denied knowledge of any
previous accident in his deposition. Mr. David admitted he did not report any
previous injuries on Dr. Heard’s questionnaire. He also denied previously having
any type of x-ray testing to Dr. Heard. However, admitted he had a CT scan in
1991 after his fall. He testified that he did not think the 1991 accident was relevant.
He agreed that he told Dr. Heard he stopped working in June 2011 because he was
in too much pain while admitting that he actually quit after he was approached
about texting while driving.
Mr. David also testified that he does not drink. On further questioning, he
agreed that he talks about drinking on Facebook but stated that he is only joking.
Lonnie Abshire, Mr. David’s first cousin, disagreed with Mr. David and testified
that Mr. David likes to drink.
Mr. David argues that he is entitled to a legal presumption of causation.
This court has explained the claimant’s burden of proof and application of the legal
presumption as follows:
4 “An employee in a worker’s compensation action has the burden of establishing a causal link between the work-related accident and the subsequent disabling condition.” Miller v. Roger Miller Sand, Inc., 94-1151, p. 6 (La.11/30/94), 646 So.2d 330, 334. An employee’s disability is presumed to have resulted from the accident if before the accident, the injured employee was in good health, but commencing with the accident, symptoms of the disabling condition appeared and continuously manifested themselves afterwards. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). However, the presumption requires either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection. Id.
Marks v. 84 Lumber Co., 06-358, pp. 3-4 (La.App. 3 Cir. 9/27/06), 939 So.2d 723,
727.
The workers’ compensation judge found that Mr. David was not entitled to
the presumption of causation because the presumption requires an immediate onset
of symptoms after the accident, or at least close in time to the accident, with a
continual manifestation. The workers’ compensation judge explained that the
accident becomes a diminishing possibility as an explanation when ten months
intervene between the accident and the complaints and disability.
While Mr. David and his wife testified that he suffered with neck pain after
the accident and had to take an extreme amount of Ibuprofen to alleviate the pain,
the workers’ compensation judge was very adamant that she did not place stock in
the testimony. The workers’ compensation judge explained that “[i]n order to
accept that an injured worker can work his full duty without restriction, without
complaint, and without medical treatment for 10 months, some higher degree of
credibility and corroboration would be expected than was observed by the
[workers’ compensation judge].”
5 Only Mr. David and his family offered any proof of a disability following
the accident. Mr. David testified that he started having headaches two to three
days after the accident and his left shoulder started bothering him. As long as he
was taking Ibuprofen, he could manage. His pain was never below a nine out of
ten every day. Mr. David’s wife Cynthia testified her husband had a headache
when he got home after the accident. She testified that he would take twenty
Ibuprofen pills at a time, every four hours, to relieve the pain. He did this every
day after the accident. Yet, he never sought medical treatment during this time
period. Mrs. David explained that her husband continued working because they
were experiencing financial difficulties due to a repayment plan bankruptcy. Mr.
David’s daughter and son-in-law, who live with him, testified that he was fine
before the accident and in a lot of pain after the accident.
Mr. David’s supervisor and several co-workers testified at the hearing.
Testimony revealed that Mr. David never complained about his neck or back
hurting while working. Mr. David had to use a manual tarp to cover the load on
his truck. He would have to operate a hand crank to get the tarp in place every day
he had load to deliver. He coworkers saw him working this hand crank by himself
on many occasions. Mr. David was also responsible for maintenance on his
vehicle like changing the oil or tires. Mr. David would also sometimes drive five
to six hours at a time, depending on where he had to deliver materials. On
occasion, Mr. David would run the front-end loader and help move culverts. Just
before Mr. David quit, he was working full time with overtime.
Mr. David’s testimony about his injury, his previous back injury, and the
circumstances involving the timing of his workers’ compensation claim all cast
serious doubt on Mr. David’s testimony. Other than Mr. David’s own self-serving
6 testimony and that of his family, there is no other testimony that Mr. David
suffered with such serious neck problems after the accident. While a co-worker
testified that he saw Mr. David taking Ibuprofen pills all the time after the accident,
he also saw him taking Ibuprofen before the accident. Even though Mr. David and
his wife testified that the pain was so bad he had to take twenty Ibuprofen pills
every four to six hours every day, Mr. David continued to work after the accident
for ten months. He had to drive long hours, change an occasional tire, hand crank
the tarp on the truck, and even move some pipe. He never complained to anyone at
work that his neck hurt. It was not until Mr. David quit his job and was denied
disability that he decided to seek medical attention. Due to his lack of credibility,
it is possible that some intervening cause could have occurred in the ten months
after the accident that Mr. David failed to disclose which caused his injury. It is
also possible that he was in pain before the accident since a coworker observed
him taking Ibuprofen pills before the accident. We find no manifest error in the
workers’ compensation judge’s decision that Mr. David failed to establish that he
suffered an injury as a result of the accident.
The judgment of the Office of Workers’ Compensation is affirmed. Costs of
this appeal are assessed to Harris David.