Harvey v. Sol's Pipe & Steel, Inc.

180 So. 3d 486, 50 La.App. 2 Cir. 114, 2015 La. App. LEXIS 2093, 2015 WL 6495222
CourtLouisiana Court of Appeal
DecidedOctober 28, 2015
DocketNo. 50,114-WCA
StatusPublished
Cited by1 cases

This text of 180 So. 3d 486 (Harvey v. Sol's Pipe & Steel, 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
Harvey v. Sol's Pipe & Steel, Inc., 180 So. 3d 486, 50 La.App. 2 Cir. 114, 2015 La. App. LEXIS 2093, 2015 WL 6495222 (La. Ct. App. 2015).

Opinion

CALLOWAY, J., Pro Tempore.

12CIaimant, Carlos Harvey (“Harvey”), appeals a decision by a Workers’ Compensation Judge (“WCJ”) finding that he failed to. prove a work-related injury, and denying his claim for workers’ compensation benefits. ■ For -the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Harvey worked for Sol’s Pipe & Steel (“Sol’s”) from October,2007 to January 12, 2012, pulling steel weighing between five, and 550 pounds. ■ ¡While working at. Sol’s, Harvey allegedly injured his shoulder, and reported to LSU-E.A. Conway Memorial Hospital (“Conway”) several times for treatment. In a letter dated January 20, 2012, Dr. George Belehic, from the Orthopedic Clinic at LSU HSC Shreveport, stated that Harvey was .unable to return to work at that time.

On February 22, 2012, Harvey filed a disputed claim for workers’ compensation benefits (Form 1008), alleging that he had injured his shoulder in an on-the-job accident on, August 8, 2011. . He alleged that he reported this accident to two of his [488]*488supervisors, T.J. Anderson and Mark Price, and reported to Conway for treatment. He was instructed to return to the emergency room as needed, and given a November 23, 2011, appointment at the Orthopedic Clinic. Harvey returned to the hospital on September 16, 2011, November 8, 2011, and December 7, 2011. An MRI performed on November 18, 2011, showed a “partial tear of the distal supraspinatus tendon without complete rotator cuff tear or tendon retraction, a tear of the mid-to-upper anterior glenoid labrum, and a small joint effusion.”

| ¡¡On March 8, 2012, Sol’s representative, Jackie Rosenburg, filed an answer asserting that both Anderson and Price deny Harvey reported injuring his shoulder at work. Rather, Harvey informed Anderson and Price that he injured his shoulder while working on the transmission in his personal vehicle. Sol’s filed an amended and supplemental answer on May 18, 2012, denying that the August 8, 2011, accident occurred.

Harvey testified in his June 29, 2012, deposition that his shoulder never “bothered” him prior to the accident. He further testified that the accident did not occur on August 8, 2011, and that it actually happened in 2010. Baséd on Harvey’s assertion that the accident occurred in 2010, Sol’s filed an exception of prescription, on the grounds that more than two years had lapsed between the date of the accident and the filing of the claim. Sol’s also filed a motion for summary judgment, arguing that there was no genuine issue of material fact regarding the “non-occurrence” of the August 8, 2011, accident. Both matters were set for hearing on May 20, 2013.

At the hearing, Harvey stated that the date of injury was August 8, 2011. The WCJ subsequently denied Sol’s exception of prescription. Sol’s motion for summary judgment was also denied after the WCJ determined that the existence of an Augusts, 2011, hospital record raised a genuine issue of material fact.

Trial for this matter took place on February 28, 2014. Both Anderson and Price denied that Harvey reported a work-related accident. Instead, they testified that Harvey informed them that he injured his shoulder while working on a truck and that this injury “bothered” him when he worked.

|4On May 14,2015, the WCJ denied Harvey’s claim, after finding that he failed to prove that the accident occurred at his job. The WCJ also determined that Harvey failed to prove an occupational disease.

Harvey appeals, asserting two assignments of error.

LAW AND DISCUSSION

In his first assignment of error, Harvey argues that the trial court erred in finding that he did not meet his burden of proof that his disability was caused by an on-the-job injury. In his second assignment of error, Harvey argues that the trial court erred in denying his claim for workers’ compensation benefits. We will discuss these interrelated issues together.

An employee is entitled to workers’ compensation benefits if he receives personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031(A); Dow v. United Parcel Service, 48,310 (La.App.2d Cir.9/18/13), 124 So.3d 36; McLin v. Industrial Specialty Contractors, Inc., 2002-1539 (La.7/2/03), 851 So.2d 1135. An employment-related accident is 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 [489]*489is more than a 'gradual or progressive degeneration. La. R.S. 23:1021(1).

A workers’ compensation claimant has the burden of proving, by a preponderance of the evidence, that the disability suffered is related to an on-the-job injury. Dow, supra; Modicue v. Graphic Packaging, 44,049 (La.App.2d Cir.2/25/09), 4 So.3d 968; Taylor v. Columbian Chemicals, 32,411 (La.App.2d Cir.10/27/99), 744 So.2d 704. The causal connection between the disability and the on-the-job injury can be established when the employee proves that before the accident he was in good health, but commencing with the accident the symptoms of the disabling condition appeared. Dow, supra; Scott v. Super 1 Foods, 45,636 (La.App.2d Cir.9/29/10), 48 So.3d 1133.

A claimant’s own testimony may be sufficient to prove causation, provided (1) no other evidence discredits or casts serious doubt upon the claimant’s version of the incident, and (2) the claimant’s testimony is corroborated by circumstances surrounding the alleged incident. Bruno v. Harbert Int’l, Inc,, 593 So.2d 357 (La.1992); Dugan v. St. Francis Medical Center, 45,149 (La.App.2d Cir.4/14/10), 34 So.3d 1157. In determining whether the Bruno elements are satisfied, the commentators have articulated six pertinent factors the courts have considered: (1) late report, (2) supervisor and coworker testimony, (3) family and friends’ testimony, (4) medical evidence, (5) continuing to work, and (6) prior injuries. Dugan, supra; Sheppard v. Isle of Capri, 40,048 (La.App.2d Cir.8/17/05), 909 So.2d 699; Blair v. Wal-Mart Stores Inc., 2001-2211 (La. App. 4th Cir.5/15/02), 818 So.2d 1042, citing 13 H. Alston Johnson III, Workers’ Compensation Law & Practice (La. Civil Law Treatise) § 253 (4th ed.2002); 1 Denis Paul Juge, Louisiana Workers’ Compensation, § 8:1 (2d ed.2002).

It is a well-settled legal principle that the factual findings in workers’ compensation cases are entitled to great weight. Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed even |fithough the appellate court may feel that its own evaluations and inferences are as reasonable. The trier of fact’s factual -determination shall not be disturbed in the absence of a showing of manifest error. When the trier of fact’s findings are reasonable in light of the entire record, an appellate court may not reverse a choice between two permissible views of the evidence. Therefore, the appellate standard of review applicable to the findings of a WCJ is the manifest error-clearly wrong test. Buxton v. Sunland Const., 34,995 (La.App.2d Cir.8/22/01), 793 So.2d 526; Shelton v. Wall, 614 So.2d 828 (La.App. 2d Cir.1993).

In the instant case, when Harvey was asked in his June 29, 2012, deposition how he injured himself, he testified:

I had a big order and I was pulling it and putting — You know, it’s so many orders coming out.

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180 So. 3d 486, 50 La.App. 2 Cir. 114, 2015 La. App. LEXIS 2093, 2015 WL 6495222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harvey-v-sols-pipe-steel-inc-lactapp-2015.