Hays v. Western Refractory Construction, Inc.

903 So. 2d 666, 2005 La. App. LEXIS 1466, 2005 WL 1279151
CourtLouisiana Court of Appeal
DecidedJune 1, 2005
DocketNo. 39,512-WCA
StatusPublished

This text of 903 So. 2d 666 (Hays v. Western Refractory Construction, 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
Hays v. Western Refractory Construction, Inc., 903 So. 2d 666, 2005 La. App. LEXIS 1466, 2005 WL 1279151 (La. Ct. App. 2005).

Opinion

JjDREW, J.

Western Refractory Construction, Inc. (“Western”) appeals a judgment awarding workers’ compensation benefits, attorney fees, and penalties to Pat Hays. We affirm the judgment, but remand for a determination of the number of weeks of workers’ compensation benefits that are subject to the La. R.S. 23:1225 offset for the receipt of unemployment benefits.

FACTS

Thomas Hays was hired by Western in April of 2003 to work as an industrial brick mason on a refractory maintenance project at a cement plant in Utah. Hays, who began working on April 2, 2003, was assigned to work the evening shift constructing a kiln at the plant. He was paid $23 an hour and worked 12 hours a day, seven days a week.

Hays’ job was to place bricks in an ascending circle that was approximately 16 to 18 feet in diameter. His position was known as the key man. Hays alleged that he was injured on April 12, 2003, while he was using a shim driver to drive a flat metal shim next to a key brick.1 The shim [668]*668driver is an air-driven hammer that by Hays’ estimate weighed between 40 and 50 pounds. Hays alleged that he was using the shim driver to drive a metal shim overhead when he felt a shock or pinch in his neck and a pain between his shoulder blades.

After suffering this injury, Hays spent the remainder of his shift operating a forklift. He returned to work the next night, Sunday, but left | ¡¡after working only a few hours because he was not feeling well and his shoulder was bothering him. He did not go to work on Monday night, and later that evening was informed that he was to return to Louisiana the next morning. Upon returning to Louisiana, Hays rested and tried to recuperate because he thought he could continue working as a brick mason. He obtained employment with an Arkansas company, but he was terminated on his first day when the company learned of his injury after his.boss questioned him about the manner in which he was using his right arm. Hays has not worked since.

Hays was treated by his primary-care physician, Dr. Doyle Hamilton, on May 6, 2003. The notes from that visit reflect that Hays complained of a stiff neck and pinched nerve. Dr. Hamilton wrote down “Utah” on the record for that visit, but otherwise Dr. Hamilton did not record anything else about how Hays incurred his injury. Hays continued to complain of a pinched nerve in his back, with the pain getting worse, when he was treated by Dr. Hamilton the next month.

Dr. Hamilton subsequently referred Hays to Dr. David Trettin at The Ortho-paedic Clinic of North Louisiana, where Hays was examined on June 27, 2003. Hays complained of trapezius pain and numbness down his right arm. Hays reported that he had suffered these ailments for the prior four months, with the numbness in the right arm becoming progressively more severe over the past six weeks. An MRI performed on August 7, 2003, revealed a C6-7 disc herniation on the right which was causing his right arm pain and numbness.

| oDr. Trettin referred Hays to Dr. Ronald Ellis for cervical epidural steroid injections. When Hays met with Dr. Ellis on August 26, 2003, Hays provided Dr. Ellis with a detailed history of how his injury occurred while he was working in Utah. Hays described his pain as starting in the posterior neck and upper back and radiating across the posterior shoulder and down the posterior aspect of the arm onto the lateral forearm to the middle three fingers. Hays also complained of numbness down the arm into those three fingers. Dr. Ellis’s impression was “chronic neck and right upper extremity pain secondary to right posterolateral C6-7 disc herniation with C7 nerve root impingement and secondary right upper back myofascial pain.”

On August 28, 2003, Hays filed a 1008 Disputed Claim for Compensation form seeking workers’ compensation benefits, medical treatment, attorney fees, and penalties. He asserted that he was running a jack hammer overhead and felt something pop in the middle of his back between his shoulder blades. In its answer, Western’s insurer, Zurich American Insurance Company, pled the La. R.S. 23:1225 offset.

Hays received cervical epidural steroid injections on three occasions in September of 2003, but they offered only limited relief for a short time. After Hays requested a referral for an evaluation for possible cervical surgery, he met with Dr. Bernie McHugh on January 13, 2004. Dr. McHugh ordered an MRI, which revealed mild spondylosis to the C5-7 levels and moderate superimposed right posterolateral disc herniation at C6-7 with compromise of the right neural foramen and C7 nerve root.

[669]*669|4Following the March 2004 trial, the WCJ found that Hays was temporarily totally disabled and ordered payment of weekly benefits of $416 due from April 13, 2003. Western was ordered to pay for medical treatment for Hays’ work injury. Western was also assessed penalties of $2,000, and was ordered to pay attorney fees of $6,000 and costs of the proceedings. The judgment did not address the La. R.S. 23:1225 offset.

DISCUSSION

Compensable Accident

Western’s first argument on appeal is that the WCJ erred in finding that Hays established the occurrence of a com-pensable accident. Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551.

In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. When there is a conflict in the 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 as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

| sWhen factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of review demands great deference to the trier of fact’s findings, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, supra.

A workers’ compensation claimant bears the burden of establishing by a preponderance of the evidence that he has received “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A); Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207.

The worker’s testimony alone may be sufficient to satisfy this burden, provided that two elements are satisfied: first, there must be no other evidence which discredits or casts serious doubt on the worker’s version of the incident; and second, the worker’s testimony must be corroborated by the testimony of fellow workers, spouses and other close family members, friends or the introduction of medical evidence. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992); Kidd v. Brown Radiator & Frame, 38,729 (La.App. 2d Cir.12/22/04), 890 So.2d 796, unit denied,

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Related

Bruno v. Harbert Intern. Inc.
593 So. 2d 357 (Supreme Court of Louisiana, 1992)
Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Hoy v. Gilbert
754 So. 2d 207 (Supreme Court of Louisiana, 1999)
Kidd v. Brown Radiator & Frame
890 So. 2d 796 (Louisiana Court of Appeal, 2004)
Arceneaux v. Domingue
365 So. 2d 1330 (Supreme Court of Louisiana, 1978)
Banks v. Indus. Roofing & Sheet Metal
696 So. 2d 551 (Supreme Court of Louisiana, 1997)
Nowlin v. Breck Const. Co.
715 So. 2d 112 (Louisiana Court of Appeal, 1998)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Lee v. Schumpert
836 So. 2d 1214 (Louisiana Court of Appeal, 2003)

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903 So. 2d 666, 2005 La. App. LEXIS 1466, 2005 WL 1279151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hays-v-western-refractory-construction-inc-lactapp-2005.