Jackson v. Savant Ins. Co.

694 So. 2d 1178, 1997 WL 288829
CourtLouisiana Court of Appeal
DecidedMay 9, 1997
Docket96 CA 1424
StatusPublished
Cited by22 cases

This text of 694 So. 2d 1178 (Jackson v. Savant Ins. Co.) 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
Jackson v. Savant Ins. Co., 694 So. 2d 1178, 1997 WL 288829 (La. Ct. App. 1997).

Opinion

694 So.2d 1178 (1997)

Acy JACKSON, Jr.,
v.
SAVANT INSURANCE COMPANY and Contract Labor, Inc.

No. 96 CA 1424.

Court of Appeal of Louisiana, First Circuit.

May 9, 1997.

*1179 Ralph Brewer, Baton Rouge, for Plaintiff—Appellee Acy Jackson, Jr.

Michael C. Clegg, Baton Rouge, for Defendant—Appellant Heck Industries, Inc.

Before LOTTINGER, C.J., and FOIL and FOGG, JJ.

FOGG, Judge.

The defendants appeal a ruling of the workers' compensation hearing officer awarding the claimant total temporary disability benefits and all reasonable and necessary medical expenses. The claimant answered the appeal, contesting the hearing officer's finding that the defendants were not arbitrary and capricious in refusing to pay workers' compensation benefits.

Acy Jackson worked for Contract Labor, Inc., as a cement truck driver from June 8, 1988 until June 20, 1995. Testimony elicited at the hearing indicated that he was a very good employee. Jackson testified that, in January of 1995, he hurt his shoulders while delivering a load of concrete to a job site at a Uniroyal facility. He testified that the job *1180 site was muddy and, due to the muddy conditions, the cement truck he was driving had to be pulled into proper position by a bulldozer. While the truck was pulled backwards, the steering wheel jerked back and forth. As Jackson tried to hold the steering wheel straight, he felt a tingling in his arms. He continued to work that day and every day until his surgery. He first told his employer that he was injured on the job after he had the surgery.

After hearing all of the testimony and reading the exhibits, the hearing officer ruled in favor of Jackson, although she did state in her reasons that there was a very legitimate conflict between the claimant and the defendants. On appeal, the defendants argue that the hearing officer erred in determining that Jackson was involved in a work-related "accident."

LSA-R.S. 23:1031 requires a workers' compensation claimant to initially establish "personal injury by accident arising out of and in the course of his employment." Bruno v. Harbert International, Inc., 593 So.2d 357, 360 (La.1992). An accident, for purposes of workers' compensation law, is defined in LSA-R.S. 23:1021(1) as follows:

"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 which is more than simply a gradual deterioration or progressive degeneration.

In order for a claimant to be entitled to recover workers' compensation benefits, he must establish by a preponderance of evidence that an accident occurred on the job site and that an injury was sustained. Garner v. Sheats & Frazier, 95-39 (La.App. 3 Cir. 7/5/95); 663 So.2d 57. 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. Garner, 663 So.2d at 60. The evidence is to be viewed in a light most favorable to the claimant. When there is proof of an accident and of a following disability, without an intervening cause, it is presumed that the accident caused the disability. Additionally, the trier of fact's determination as to whether a compensable injury was suffered is a question of fact and will not be disturbed unless manifestly erroneous or clearly wrong. Dew v. V.I.S., Inc., 95-141 (La.App. 3 Cir. 11/2/95); 664 So.2d 693.

The manifest error test requires the reviewing court to consider the record as a whole to ascertain whether the trier of fact's findings constituted manifest error. Since the trier of fact's findings are accorded great weight on appeal, the Louisiana Supreme Court has set forth a two-part test for use by appellate courts in applying the manifest error standard of review. First, the appellate court must conclude from the record that a reasonable factual basis does not exist for the trier of fact's findings. Second, the appellate court must determine that the findings were clearly wrong based on the record. Stobart v. State Through DOTD, 617 So.2d 880 (La. 1993).

In the instant case, the record clearly reflects that Jackson saw a doctor for shoulder pain as early as 1990. In December of 1994, he saw Dr. Louis F. Hargus for shoulder pain. Early in January of 1995, he saw Dr. Hector Mena for shoulder pain and received cortisone shots. Subsequent to the date of the accident, Dr. Mena ordered a MRI which indicated Jackson suffered from a torn right rotator cuff. Dr. Mena then referred Jackson to Dr. William F. Hagemann.

Dr. Hagemann testified in his deposition that he first saw Jackson on March 1, 1995. On that date, Jackson told him that the pain started four months earlier, which would have been in November, two full months prior to the date Jackson states the accident occurred. Further, Dr. Hagemann testified that Jackson described a sort of slow, gradual onset of these problems. At no time did Jackson refer to any one particular incident that he was aware of that may have caused his problems. Additionally, on the questionnaire from Dr. Hagemann, Jackson stated that this was not a job-related injury.

*1181 Although he could not determine how long the condition had existed, Dr. Hagemann testified that while operating on Jackson he observed that it definitely looked chronic. He also stated that Jackson had some arthritis of his acromioclavicular joint which caused some spurring that impinged on the rotator cuff. Dr. Hagemann referred to Jackson's condition as rotator cuff disease, a condition that is usually degenerative. However, he stated that something can happen to aggravate rotator cuff disease; he stated that the injury could have transpired the way Jackson described it.

Based on Dr. Hagemann's testimony, the appellants aver that the claimant suffered from a gradual deterioration or progressive degeneration and, therefore, the terms of the definition of accident are not met. Furthermore, the appellants aver that the claimant was not symptom-free prior to the incident in question.

The hearing officer found that Jackson did have a pre-existing condition that was aggravated by the accident and accelerated by the accident to the point where it actually caused the rotator cuff to tear. She determined, based on the testimony of Jackson and of Dr. Hagemann, that although the rotator cuff had deteriorated a great deal this particular incident probably pushed it over the brink and caused it to become symptomatic. Based on a complete review of the record, we cannot say that this finding was manifestly erroneous.

In the instant case, the claimant testified as follows:

Q. NOW, DID YOU GET HURT ON THE JOB WHILE YOU WERE WORKING FOR CONTRACT LABOR?
A. WELL, I THOUGHT I DID. I MEAN, THAT'S WHEN I REALLY FELT MY PAINS WHEN I WAS DRIVING THE TRUCK. THAT'S WHEN IT REALLY HIT ME.
Q. AND DO YOU KNOW WHAT PARTICULAR DAY THAT WAS?
A. I DON'T KNOW EXACTLY WHAT DATE, BUT I KNOW IT WAS DURING THE MIDDLE PART OF JANUARY OR SOMETHING LIKE AROUND THE 15TH, 16TH, 17TH, 18TH, OR 19TH, SOMEWHERE UP IN THAT AREA.
Q. OF WHAT YEAR?
A. `95.
Q. AND WHERE WAS IT THAT THIS ACCIDENT OCCURRED?
A.

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694 So. 2d 1178, 1997 WL 288829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-savant-ins-co-lactapp-1997.