STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-0705
J. C. WHITE, JR.
VERSUS
RATCLIFF CONSTRUCTION COMPANY, LLC AND THE GRAY INSURANCE COMPANY
************
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2 PARISH OF RAPIDES, NO. 06-08361 HONORABLE JAMES L. BRADDOCK WORKERS’ COMPENSATION JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Jimmie C. Peters, Marc T. Amy, and James T. Genovese, Judges.
REVERSED AND RENDERED.
J. C. White, Jr. 907 6th Street Colfax, LA 71417 (318) 627-2453 IN PROPER PERSON
Eric J. Waltner Allen & Gooch Post Office Drawer 3768 Lafayette, LA 70502-3768 (337) 291-1400 COUNSEL FOR DEFENDANTS/APPELLANTS: Ratcliff Construction Company, LLC and The Gray Insurance Company PETERS, J.
The defendants, Ratcliff Construction Company and The Gray Insurance
Company, appeal the workers’ compensation judge’s finding that the plaintiff, J. C.
White, Jr., proved that he suffered a work-related injury to his left shoulder and that
he is entitled to indemnity benefits even though his doctor had released him to work
with no restrictions. For the following reasons, we reverse and render judgment in
favor of Ratcliff Construction Company and The Gray Insurance Company.
Ratcliff Construction Company (Ratcliff) hired J. C. White, Jr. to work as a
carpenter on its construction projects on September 18, 2006. White asserts in this
litigation that within two weeks after going to work for Ratcliff, he suffered a work-
related injury to his left shoulder while framing in a porch. White did not
immediately report his accident and injury to his employer. Instead, he continued to
work without physical complaint until fired by his employer on November 3, 2006.
White sought medical attention for his shoulder for the first time on November
6, 2006, when he was examined by Dr. Gordon Webb, a physician at Louisiana
Occupational Health Services Clinic in Alexandria, Louisiana. When completing the
history questionaire provided by Dr. Webb, White could not remember the date of his
injury. Dr. Webb performed a physical examination, found no evidence of an acute
injury, and released White to his regular duties.
Two days later, on November 8, 2006, Dr. Bruce Craig, a physician at the
Walk-In Medical Clinic in Alexandria, Louisiana, examined White and concluded
that he suffered from chronic shoulder and arm pain. Dr. Craig prescribed
medication. At a follow-up visit on December 1, 2006, Dr. Craig recommended that
White participate in physical therapy and that an MRI be performed. At the trial of White’s claim for workers’ compensation benefits, penalties, and
attorney’s fees, Ratcliff asserted that White did not suffer a work-related injury during
his employment with the company. In doing so, Ratcliff pointed out that White had
a history of injuries to his shoulder. After considering all of the evidence, the
workers’ compensation judge (WCJ) concluded that White had sustained a work-
related injury; that he was entitled to weekly indemnity benefits at the rate of $325.00
from November 6, 2006, forward; and that he was entitled to the payment of all past
medical treatment and to all reasonable, necessary, and related medical treatment by
the physician of his choice. However, the WCJ rejected White’s request for penalties
and attorney’s fees. Thereafter, Ratcliff perfected this appeal, asserting two
assignments of error:
1) The workers’ compensation judge committed error, either manifest or legal, in holding that White satisfied his burden of establishing a compensable accident;
2) The workers’ compensation judge committed error, either manifest or legal, in holding that White was entitled to indemnity benefits during the time period that he was released to full duty work.
Because we find merit in the first assignment of error, we do not consider the
second assignment of error.
Assignment of Error Number One
Louisiana Revised Statutes 23:1021(A) defines “accident” as 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 is more than simply a gradual deterioration or progressive
degeneration.” “[T]he plaintiff-worker in a compensation action has the burden of
2 establishing a work-related accident by a preponderance of the evidence.” Bruno v.
Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992).
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Worker’s Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by testimony of fellow workers, spouses or friends. Malone and Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the workers has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987).
Id.
The findings of a workers’ compensation judge pertaining to the burden of proof and
witness credibility are factual in nature and will not be reversed on appeal unless
clearly wrong or manifestly erroneous. Id.
The WCJ found that White proved by a preponderance of the evidence that he
did in fact suffer a work-related accident. In doing so, the WCJ noted that
discrepancies existed in the different witnesses’s testimonies as to how the accident
occurred, but he found White’s version to be partially corroborated by one of the
witnesses as well as by Dr. Webb’s medical notes. The workers’ compensation judge
further relied on Bordelon v. Inland Industrial Contractors, 00-1132 (La.App. 3 Cir.
1/31/01), 783 So.2d 413, writ denied, 01-591 (La. 4/27/01), 791 So.2d 119, a case in
which this court affirmed a finding that the injured worker’s delay in reporting a
3 work-related accident and discrepancies in how the accident occurred did not defeat
his claim that he suffered a work-related injury.
In this assignment of error, Ratcliff argues that White failed to establish by a
preponderance of the evidence that he suffered a work-related injury. Specifically,
Ratcliff argues that White failed to present any evidence that corroborated his version
of the alleged accident and that what little evidence he did present discredited and
cast serious doubts on his version. We agree.
We first note that the evidence concerning the occurrence of the accident itself
does not, standing alone, discharge White’s burden of proof on that issue. While
White did testify concerning how the accident occurred, his was not the only
testimony on this issue as the accident was not unwitnessed. One of the two co-
workers present at the time of the alleged accident denied that an accident occurred,
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-0705
J. C. WHITE, JR.
VERSUS
RATCLIFF CONSTRUCTION COMPANY, LLC AND THE GRAY INSURANCE COMPANY
************
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2 PARISH OF RAPIDES, NO. 06-08361 HONORABLE JAMES L. BRADDOCK WORKERS’ COMPENSATION JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Jimmie C. Peters, Marc T. Amy, and James T. Genovese, Judges.
REVERSED AND RENDERED.
J. C. White, Jr. 907 6th Street Colfax, LA 71417 (318) 627-2453 IN PROPER PERSON
Eric J. Waltner Allen & Gooch Post Office Drawer 3768 Lafayette, LA 70502-3768 (337) 291-1400 COUNSEL FOR DEFENDANTS/APPELLANTS: Ratcliff Construction Company, LLC and The Gray Insurance Company PETERS, J.
The defendants, Ratcliff Construction Company and The Gray Insurance
Company, appeal the workers’ compensation judge’s finding that the plaintiff, J. C.
White, Jr., proved that he suffered a work-related injury to his left shoulder and that
he is entitled to indemnity benefits even though his doctor had released him to work
with no restrictions. For the following reasons, we reverse and render judgment in
favor of Ratcliff Construction Company and The Gray Insurance Company.
Ratcliff Construction Company (Ratcliff) hired J. C. White, Jr. to work as a
carpenter on its construction projects on September 18, 2006. White asserts in this
litigation that within two weeks after going to work for Ratcliff, he suffered a work-
related injury to his left shoulder while framing in a porch. White did not
immediately report his accident and injury to his employer. Instead, he continued to
work without physical complaint until fired by his employer on November 3, 2006.
White sought medical attention for his shoulder for the first time on November
6, 2006, when he was examined by Dr. Gordon Webb, a physician at Louisiana
Occupational Health Services Clinic in Alexandria, Louisiana. When completing the
history questionaire provided by Dr. Webb, White could not remember the date of his
injury. Dr. Webb performed a physical examination, found no evidence of an acute
injury, and released White to his regular duties.
Two days later, on November 8, 2006, Dr. Bruce Craig, a physician at the
Walk-In Medical Clinic in Alexandria, Louisiana, examined White and concluded
that he suffered from chronic shoulder and arm pain. Dr. Craig prescribed
medication. At a follow-up visit on December 1, 2006, Dr. Craig recommended that
White participate in physical therapy and that an MRI be performed. At the trial of White’s claim for workers’ compensation benefits, penalties, and
attorney’s fees, Ratcliff asserted that White did not suffer a work-related injury during
his employment with the company. In doing so, Ratcliff pointed out that White had
a history of injuries to his shoulder. After considering all of the evidence, the
workers’ compensation judge (WCJ) concluded that White had sustained a work-
related injury; that he was entitled to weekly indemnity benefits at the rate of $325.00
from November 6, 2006, forward; and that he was entitled to the payment of all past
medical treatment and to all reasonable, necessary, and related medical treatment by
the physician of his choice. However, the WCJ rejected White’s request for penalties
and attorney’s fees. Thereafter, Ratcliff perfected this appeal, asserting two
assignments of error:
1) The workers’ compensation judge committed error, either manifest or legal, in holding that White satisfied his burden of establishing a compensable accident;
2) The workers’ compensation judge committed error, either manifest or legal, in holding that White was entitled to indemnity benefits during the time period that he was released to full duty work.
Because we find merit in the first assignment of error, we do not consider the
second assignment of error.
Assignment of Error Number One
Louisiana Revised Statutes 23:1021(A) defines “accident” as 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 is more than simply a gradual deterioration or progressive
degeneration.” “[T]he plaintiff-worker in a compensation action has the burden of
2 establishing a work-related accident by a preponderance of the evidence.” Bruno v.
Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992).
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Worker’s Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by testimony of fellow workers, spouses or friends. Malone and Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the workers has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987).
Id.
The findings of a workers’ compensation judge pertaining to the burden of proof and
witness credibility are factual in nature and will not be reversed on appeal unless
clearly wrong or manifestly erroneous. Id.
The WCJ found that White proved by a preponderance of the evidence that he
did in fact suffer a work-related accident. In doing so, the WCJ noted that
discrepancies existed in the different witnesses’s testimonies as to how the accident
occurred, but he found White’s version to be partially corroborated by one of the
witnesses as well as by Dr. Webb’s medical notes. The workers’ compensation judge
further relied on Bordelon v. Inland Industrial Contractors, 00-1132 (La.App. 3 Cir.
1/31/01), 783 So.2d 413, writ denied, 01-591 (La. 4/27/01), 791 So.2d 119, a case in
which this court affirmed a finding that the injured worker’s delay in reporting a
3 work-related accident and discrepancies in how the accident occurred did not defeat
his claim that he suffered a work-related injury.
In this assignment of error, Ratcliff argues that White failed to establish by a
preponderance of the evidence that he suffered a work-related injury. Specifically,
Ratcliff argues that White failed to present any evidence that corroborated his version
of the alleged accident and that what little evidence he did present discredited and
cast serious doubts on his version. We agree.
We first note that the evidence concerning the occurrence of the accident itself
does not, standing alone, discharge White’s burden of proof on that issue. While
White did testify concerning how the accident occurred, his was not the only
testimony on this issue as the accident was not unwitnessed. One of the two co-
workers present at the time of the alleged accident denied that an accident occurred,
and the other’s testimony is both internally inconsistent and inconsistent with White’s
version of the accident.
White testified at trial that he injured his left shoulder while carrying a large
beam up a ladder with the assistance of a co-worker, Paul Maxwell. According to
White, he and Maxwell were each climbing adjacent ladders while holding separate
ends of a two-inch by twelve-inch by thirty-two-foot beam. White testified that
Maxwell progressed up his ladder quicker than he did and that by the time Maxwell
was at the top of his ladder, he was only half way up his.
According to White, while looking directly at him, Maxwell then pulled the
beam towards himself and attempted to jerk it out of White’s hand. When White
yelled, Maxwell observed that the beam was wobbling in White’s hand, but turned
away, causing the beam to flip. When White bent down to catch the beam before it
4 hit the ground, he felt something pull loose from his shoulder to his elbow and was
jerked off the ladder. White testified that a co-worker helped Maxwell complete the
nailing of the beam.
Roderick Page, a co-worker who had also been fired by the company, testified
that he saw the accident occur. He testified that he was standing by White and
Maxwell as they were climbing the ladders and saw Maxwell drop his end.
According to Page, Maxwell’s end of the beam hit the ladder, and White, who was
still holding the other end, attempted to catch control of it before it fell on Maxwell.
He observed White catch the beam in the middle and without dropping his end. Page
testified that Maxwell and another employee finished nailing the beam in place.
When questioned by the WCJ, he could not remember when the accident occurred,
or even when he was fired by Ratcliff.
In his testimony, Paul Maxwell disputed White’s assertion that an accident
even occurred. Maxwell testified that neither he nor White had dropped or lost
control of the beam which according to him, weighed approximately one hundred
pounds. According to Maxwell, he and White nailed the board in place without
anyone’s help.
Thus, White’s version was that he caught the one hundred pound beam before
it hit the ground and this action on his part caused him to be jerked off the ladder.
However, neither Maxwell nor Page corroborated his claim that he fell from the
ladder. As pointed out by the WCJ, Page’s version of the accident is somewhat
confusing. According to Page, when Maxwell dropped his end, it struck one of the
ladders. He did not say which ladder. Page then suggested that White somehow
reached over and caught the beam in the middle without dropping his end and
5 remained on the ladder. We find that the WCJ’s conclusion that Page supported
White’s version of how the accident occurred was manifestly erroneous.
Furthermore, while we agree that the decision in Bordelon supports a finding
that an injured worker’s delay in not reporting a work-related accident will not, by
itself, defeat a claim for workers’ compensation benefits, White’s action in not
immediately reporting the accident is suspect given the other evidence in the record.
White testified that from the accident forward, he could not use his left hand and that
he complained daily to Maxwell. However, he complained to no one else and he does
not suggest he could not perform his duties. He did suggest that because he only
performed carpentry work for two more weeks, he was able to continue to work.
According to White, most of the work that followed entailed nothing more than
hauling and grading dirt and driving a tractor.
Ronnie Kerr, White’s supervisor, testified that Ratcliff has a policy that any
accident must be reported to a supervisor immediately so that an accident report can
be completed, and that the company conducted bi-weekly safety meetings during
which this policy was consistently emphasized. The written safety manual which was
made available to every new employee included language that stated the required
company policy that an employee report an on-the-job accident to a supervisor
immediately, but no later than the end of the day when the injury occurred. Both he
and Maxwell testified that Ratcliff supervisors held regular safety meetings with the
employees, and the issue of immediate reporting of work-related accidents was
always brought up. While Kerr could not state specifically that White attended these
meetings (although he suggested that White probably did, given company policy),
Maxwell remembered specifically that White did attend the meetings. White
6 acknowledged that on the day he was hired, he received a copy of the safety manual,
but claims to have never read it. While claiming that he was unable to use his left
hand after the accident, his stated reason for not immediately reporting the accident
to his supervisor was his fear of both he and Maxwell losing their jobs.
Kerr testified that on November 3, 2006, he confronted White about missing
work the previous day. According to Kerr, White was late that day, and when
confronted, White initially told him that he did not feel like working the day before.
However, he changed his story, telling Kerr that he had been arrested for driving
while intoxicated and that the day before he had been handling a matter pertaining to
his arrest. Initially, Kerr told White to go to work, but changed his mind after he
went to his office. He then called White back in and told him that he was not working
out as a carpenter. In fact, Kerr wanted to fire White because he believed White had
misrepresented his skills as a carpenter. The only reason he offered White a laborer’s
job was because he knew White and Maxwell rode to work together and he was
concerned that firing White would cause Maxwell to have to quit. When White
refused to work as a laborer, Kerr fired him. It was at this point, according to Kerr,
that White told him that he had injured his arm over a month before. Kerr told White
to report the injury to the office and made a notation on White’s payroll report.
According to White, he told Kerr that he had missed the previous day because
his shoulders were bothering him. He denied having missed work because of his
criminal charge, but suggested that he was fired because he had been arrested. He
acknowledged that Kerr told him that his position was being changed from carpenter
to laborer and his pay was being cut from $15.00 per hour to $7.00 per hour.
7 According to White, he informed Kerr that he would rather quit or be fired than work
as a laborer.
White finally reported the accident as instructed by Kerr, but he did so three
days later. On November 6, 2006, White informed Christine Drerup, an accountant
with Ratcliff, that he had injured his arm and needed to see a doctor. However, in
identifying when the accident occurred, White informed Ms. Drerup that the accident
had occurred the week before. Ms. Drerup testified that she immediately sent him to
the Louisiana Occupational Health Services Clinic for treatment. Additionally, she
notified an adjustor at the employer’s insurer of the claimed accident and forwarded
an Employer Report of Injury/Illness to the adjustor. Thus, the evidence surrounding
the reporting issue is conflicting.
Finally, we also find that the WCJ erred in concluding that White’s version of
the accident was supported by Dr. Webb’s medical notes. In fact, as is the case with
the other evidence, all of the medical evidence in the record is replete with
inconsistencies and contradictions.
When he first went to work for Ratcliff, White completed a health
questionnaire wherein he denied having suffered any previous work-related injury
and denied having ever received any workers’ compensation or medical benefits.
These statements were false. In fact, White had injured both shoulders and suffered
multiple skull fractures in a work-related injury in 1998. As a result of the injuries
sustained in that accident, he received both weekly compensation benefits and
medical care. When confronted with these falsehoods, White testified that he had
answered the questions in the negative at Maxwell’s advice.
8 When White first saw Dr. Webb, he completed a questionnaire wherein he
stated that the accident occurred when “on a Ladder Paul droped[sic] Lumber on His
End And I was holding The other End.” He also denied in the questionnaire that he
had ever suffered a prior injury to his left shoulder. Dr. Webb’s notes state that White
and a co-worker were holding a board, which the co-worker twisted and caused to fall
from White’s hands. His notes state that White grabbed and caught the board with
his fingertips, which jerked his entire left side and caused pain from his neck to his
forearm. Dr. Webb’s notes reflect White’s complaints to be pain in his shoulder,
especially at night, for the previous five to six weeks. He further noted that White
had suffered no previous injury to his shoulder or arm, other than a fracture to his
wrist when he was fifteen.
X-rays taken by Dr. Webb revealed a normal left shoulder, considering White’s
age. Dr. Webb did note in his records that the x-ray showed that the humerus was
apparently elevated within the acetabulum and that there appeared to be new bone
growth at the inferior glenoid. He concluded that White’s complaints were related
to an old left rotator cuff tear, that there was no evidence of an acute injury, and that
the problem was not work-related. He discharged White with no restrictions and no
scheduled return.
Two days later White presented himself to Dr. Craig, who saw him
twice—once on November 8 and again on December 1, 2006. Dr. Craig recorded in
his notes that White complained of left shoulder and arm pain caused when “[a] wide
board was dropped and [White] caught it and it jerked.” Dr. Craig initially prescribed
muscle relaxers and pain medication. When White returned in December, he related
the same complaints. Considering White’s complaints to be “chronic,” Dr. Craig
9 recommended physical therapy and suggested that an MRI be performed. The MRI
was originally scheduled for December 6, 2006, but the record contains no
documentation to suggest that it was ever performed.
On March 21, 2007, White appeared at the Louisiana Health Care Services
Division, Huey P. Long Medical Center in Pineville, Louisiana, complaining of sharp,
throbbing pain radiating into his lower back and pain in his left shoulder. X-rays
taken of his lumbosacral spine, left shoulder, and left humerus were all normal. He
was diagnosed with osteoarthritis and received a steroid injection before being
discharged.
Thus, the medical evidence reflects no suggestion of a recent work-related
injury other than the statements of White himself. The findings of both Dr. Webb and
the physicians at Huey P. Long Medical Center were within normal limits, and neither
found that White was disabled for any reason. The suggestions of Dr. Craig are
inconclusive, given the lack of follow-up on the testing suggested. To the extent that
Dr. Webb’s notes support White’s assertion that he sustained an injury, they do so on
nothing more than the medical history given to the doctor by White. We find that the
WCJ erred in concluding that Dr. Webb’s medical notes supported White’s claim.
After reviewing the evidence, we find that it was manifestly erroneous for the
WCJ to find that White suffered a work-related accident. The evidence presented
casts serious doubts upon White’s version of the accident, and his testimony is not
corroborated by the circumstances following the alleged accident. Bruno, 593 So.2d
357.
10 DISPOSITION
For the foregoing reasons, we reverse the judgment of the workers’
compensation judge and render judgment in favor of Ratcliff Construction Company
and The Gray Insurance Company dismissing the claim of J .C. White, Jr. for
workers’ compensation benefits. We assess all costs of these proceedings against J.
C. White, Jr.