STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0608
JOHN VESSEL
VERSUS
CB& I
Judgment Rendered: SEP 0 2 2020
On Appeal from the Office of Workers' Compensation In and for the Parish of West Feliciana District 5 State of Louisiana Docket No. 17- 05555
Honorable Jason Ourso, Judge Presiding
Brad 0. Price Counsel for Plaintiff/Appellee Denham Springs, Louisiana John Vessell
John J. Rabalais Counsel for Defendant/ Appellant Matthew D. Crumhorn CB& I Megan C. Gladner Covington, Louisiana
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ. McCLENDON, J.
Following a trial on the merits, plaintiff/ appellee was awarded workers'
compensation benefits in connection with a back injury he suffered after lifting and
moving heavy materials in the course of his employment with the defendant/ appellant.
For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
John Vessel' (" plaintiff") began working for Chicago Bridge and Iron (" CB& I") on
April 18, 2017. Although plaintiff was hired as a warehouse journeyman, his primary
duty was driving trucks. Plaintiff testified that the alleged accident occurred when he
assisted his foreman, David Shade, in physically lifting and moving steel beams or
girders. Plaintiff felt a " pop" and experienced pain through his mid lower back. The date
of the alleged accident herein is unclear, as plaintiff did not immediately file an accident
report, and did not recall the exact date he was injured. However, plaintiff believed that
the accident happened in June, shortly after midnight while working the night shift.
Plaintiff testified that he completed his shift and returned home before he reported to
the emergency department at West Feliciana Parish Hospital (" West Feliciana").
West Feliciana medical records reflect that at 12: 04 on June 5, 2017, plaintiff
complained of moderate back pain with an acute onset for the past few or past three
days, beginning after plaintiff worked thirteen consecutive days. On June 16, 2017,
plaintiff sought treatment with his primary care physician, Dr. Ernest Gene Thompson,
Jr. Medical records from this visit reflect that plaintiff complained of ' slight right
costovertebral angle] tenderness," i. e., lower right back pain, and flank2 pain beginning
a week prior. Dr. Thompson also provided plaintiff with a work excuse permitting
plaintiff to return to work on June 17, 2017. On June 29, 2017, plaintiff reported to the
Lane Regional Medical Center (" Lane") emergency department for acute moderate pain
to " upper/ mid back episodic over last [ two] weeks." Dr. Thompson' s records and the
Plaintiff's surname is spelled both " Vessel" and " Vessell" throughout the record. We use the spelling reflected on plaintiff's Louisiana commercial driving license, " Vessel," herein.
z Dr. Thompson explained that the term " flank" means "[ w] here the kidneys are, below the rib cage, laterally, lateral to the spine," and that the flank is part of the back, though flank pain is distinguished from spinal pain.
2 Lane records did not reference the mechanism of plaintiff's injury, though the Lane
records reflect that plaintiff denied trauma or other injury.
On July 8, 2017, plaintiffs foreman Mr. Shade requested that plaintiff complete
an employee disciplinary record citing absenteeism. Plaintiff did so, writing in the
employee comment section that he missed work due to hurting his back in a work
accident, specifically, " pulled muscles in my back from lifting on [ beams] in [ I] aydown."
Although plaintiff provided CB& I with a work excuse from Our Lady of the Lake Hospital
dated July 8, 2017, a second employee disciplinary record citing absenteeism was
completed on July 11, 2017. 3
Plaintiff was transferred from the warehouse department to the crane and
rigging department on July 18, 2017. Prior to the transfer, plaintiff had been driving a
new truck. After the transfer, plaintiff was given an " old yard dog" truck to drive.
Plaintiff testified that the older truck had " no shocks, no springs, no air ride, no
nothing" and was a "' real, real rough riding," which caused his back pain to worsen.
Less than a week after plaintiff began driving the yard dog truck, on July 23, 2017,
plaintiff visited Prime, CB& I's on- site medical care facility. Plaintiff recounted that when
he reported his injury to Prime, he was given a choice between Advil and Tylenol and
sent back to work.
Medical records reflect that plaintiff sought treatment for back pain at least three
more times in the following month. On July 24, 2017, plaintiff sought treatment at the
West Feliciana emergency department. Plaintiff complained of acute, moderate back a[
pain that began the day before. The medical records specifically documented ' r] ight
sided back pain from driving ' old truck' at a plant daily," "[ r] ight paraspinal muscles are
tight and tender to palpation," and that plaintiff " was seen here on [ June 5, 2017] for
same issue on same side." Plaintiff again reported to the West Feliciana emergency
department on July 31, 2017 with complaints of ' lingering right- sided lower back and
right flank pain for past month or so," and on August 23, 2017, with complaints of
bilateral lower back pain caused by a truck he was driving for work four weeks prior.
3 This record was signed on behalf of CB& I by David Summers. However, David Summers did not become plaintiffs supervisor until he was transferred from the warehouse department to the crane and rigging department on July 18, 2017.
3 Additionally, plaintiff contacted Dr. Thompson' s office twice by phone seeking treatment
for back pain. Dr. Thompson' s medical records document that plaintiff called on July 27,
2017, but was advised that Dr. Thompson did not handle workers' compensation claims.
Dr. Thompson' s office provided plaintiff with a July 31, 2017 medical work excuse,
restricting plaintiff to light duty until further notice due to " illness." Dr. Thompson' s
medical records also reflect that Plaintiff called on August 1, 2017.
In the interim, plaintiff reported to work on July 28, 2017. Though CB& I' s
records reflect that plaintiff worked 10. 5 hours, plaintiff testified that he was sent home
because CB& I did not have light duty available. CB& I' s records reflect that plaintiff was
terminated " for cause" on July 28, 2017, and a separation evaluation was completed on
August 17, 2017. On September 5, 2017, plaintiff filed a disputed claim for
compensation. 4
On September 18, 2017, plaintiff was treated by Dr. Samer Shamieh. The
medical records state that plaintiff presented with "[ w] ork injury while lifting beams to
put on a fork lift." The records additionally note that "[ p] hysical exam reveals
tenderness to palpation of the lumbar spine and loss of [ range of motion] as well as
palpable muscle spasms." Dr. Shamieh recommended that plaintiff undergo L4 -5- S1
TFESI ( transforaminal epidural steroid injection) with Dr. Sean Graham.
Plaintiff returned to the West Feliciana Parish Hospital emergency department on
September 23, 2017. An MRI revealed bulging discs and spinal stenosis. The emergency
department physician explained to plaintiff that he needed to see a specialist because
the emergency department was not equipped to offer treatment for his condition. On
October 7, 2017, plaintiff again reported to the West Feliciana Parish Hospital
emergency department with complaints of back pain.
On October 19, 2017, plaintiff was treated by Dr. Graham. Dr. Graham' s records
reflect that plaintiff complained of back pain caused by a work- related injury in June of
2017 when plaintiff was lifting steel beams with a coworker. Dr. Graham further noted
4 The claim form identified the date of plaintiffs injury as July 23, 2017, " at lay down 6 at Shintech in Plaquemine." The description of the accident and injury read "[ d] uring an off time, supervisor had plaintiff] help move beams and [ he] hurt his back while doing so." Plaintiff alleged that no wage benefits had been paid and no medical treatment had been authorized, and sought penalties, costs, attorney's fees, and judicial interest.
51 that plaintiff " began to have pain within hours of lifting" and " continued to work
through July driving a yard dog which worsened his pain." Plaintiff returned to Dr.
Graham on November 15, 2017; December 12, 2017; January 9, 2018; February 7,
2018; and May 1, 2018.
On March 20, 2018, plaintiff submitted to an examination by Dr. Alan Schroeder
for the purposes of obtaining a second medical opinion (" SMO"). Dr. Schroeder opined
that "[ plaintiff's] current back pain is not related to any one specific work episode lifting
a beam." Dr. Schroeder reported that he believed plaintiff was at maximum medical
improvement.
The issues of whether an accident occurred and whether plaintiff sustained an
injury were presented to the workers' compensation judge (" WCJ") at a trial on the
merits on August 28, 2018. At the conclusion of the trial, the WCJ ruled from the bench
in favor of plaintiff. The WCJ found that an accident occurred on June 4, 2017, when
plaintiff lifted a pipe in the course and scope of his employment with CB& I. 5 The WCJ
further found that plaintiff sustained an injury to his lower back as a result of the
accident. The WCJ cast CB& I in judgment for supplemental earnings indemnity benefits,
medical expenses, and all costs of the proceedings. The WCJ executed a written
judgment consistent with the oral ruling on September 13, 2018, and issued the written
judgment together with written reasons for judgment. The written reasons, set forth
below, emphatically detailed the WCJ' s finding that plaintiff was credible:
The Court tried this case and ruled from the bench on August 28, 2018, and defendant requested written reasons thereafter. All evidence was thoroughly reviewed and the main issue in the case was addressing the credibility of the claimant as concerns the occurrence of an accident as provided by law. The Court had the opportunity to listen to the claimant live at trial and consider all other evidence. The Court specifically points out that this is an unsophisticated employee mainly employed as a truck driver and other manual labor his whole life. Given all of the circumstances, the Court makes a specific factual finding that the claimant was credible. This finding is based upon the Court listening and observing claimant testify in trial, including but not limited to his deportment, mannerisms, facial expressions, tone of voice, demeanor, composure,
answers to questions, reactions to questions, and considering and
comparing claimant's version of events with all other evidence at trial.
5 Concluding that the accident occurred on June 4, 2017, the WCJ clearly considered plaintiff's testimony that he sought medical treatment at West Feliciana the day after the accident together with the June 5, 2017 West Feliciana medical records documenting a connection between plaintiff's back pain and a work accident.
5 The Court finds that the claimant proved an accident occurred on June 4, 2017, wherein he assisted his foreman, Mr. David [ Shade], in lifting some extremely heavy pipes, iron beams, or other metal industrial construction materials, rather than using a forklift, crane, or other mechanical lifting device appropriate and required for employee safety reasons under the circumstances. This lifting act was an unsafe activity at the defendant's premises directed by defendant's foreman over claimant. Thereafter, the circumstances corroborate said accident and claimant' s lower back injury as a result thereof. Claimant's hospital emergency room record on the day after the accident shows he reported a back injury generally caused by work. It does not specifically give the details of the accident, but in general this medical record at least shows the claimant complained of his injury being work related. Although there was testimony of the claimant not reporting the accident, defendant's own employee and supervisor, Mr. Gary Ourso, ( no known family relationship to the undersigned judge) testified the claimant reported the accident to him at some point in time, he directed him [ to] the safety/ medical office on site, and watched claimant enter said office.
As concerns injuries, this Court makes a specific finding that claimant's lower back injury was caused by this accident due to extremely heavy lifting and medical treatment therefore is awarded. The Court further finds that the claimant has proven SEB is due at the maximum rate starting from July 31, 2017. As concerns penalties and attorney's fees, the Court finds that the matter was reasonably controverted by the employer; therefore, penalties and attorney[ s] fees are denied. Legal interest is awarded in accordance with law and all court costs assessed at defendant's costs.
CB& I then appealed this judgment, raising the following assignments of error:
1. The WCJ erred in finding an accident occurred on June 4, 2017.
2. The WCJ erred in finding the June 4, 2017 accident caused a compensable and identifiable injury.
3. The WCJ erred in finding plaintiff is entitled to supplemental earning benefits in the amount of $ 657. 00 per week starting July 31, 2017 to present. 6
RULE TO SHOW CAUSE
On September 3, 2019 this Court issued an ex proprio motu rule to show cause
order noting that the judgment executed by the WCJ did not specify the amount of
medical expenses awarded, and directing the parties to show cause whether the appeal
should be dismissed for lack of a final appealable judgment. The rule to show cause
was referred to the appeal panel. On December 18, 2019, this Court issued a limited
remand order allowing the WCJ to issue a judgment containing sufficient specificity. The
record was supplemented with an appropriately amended judgment on January 7,
2020, and this court maintained the appeal.
6 This was identified as CB& I' s second assignment of error on appeal. We present and consider the assignments of error out of order for ease of discussion.
0 STANDARD OF REVIEW
Whether the claimant has carried his burden of proof and whether testimony is
credible are questions of fact to be determined by the trier of fact. Lizana v. Gulf
Coast Pain Inst., 2003- 1672 ( La. App. 1 Cir. 5/ 14/ 04), 879 So. 2d 763, 765. In a
workers' compensation case, as in other civil cases, this court's review of factual
findings is governed by the manifest error or clearly wrong standard. Williams v.
Temple Inland, Inc., 2008- 2153 ( La. App. 1 Cir. 12/ 23/ 09), 30 So. 3d 760, 761. In
applying the manifest error -clearly wrong standard, this court must determine not
whether the trier of fact was right or wrong, but whether the factfinder's conclusion
was a reasonable one. Where there are two permissible views of the evidence, a
factfinder's choice between them can never be manifestly erroneous or clearly wrong.
Thus, if the factfinder's findings are reasonable in light of the record reviewed in its
entirety, the court of appeal may not reverse. This is true even if convinced that had it
been sitting as the trier of fact, it would have weighed the evidence differently. Albert
v. Strategic Restaurants Acquisition Co. LLC, 2014- 1001 ( La. App. 1 Cir.
12/ 23/ 14), 168 So. 3d 507, 514.
LAW AND DISCUSSION
The Workers' Compensation Act provides coverage to a worker for personal
injury by accident arising out of and in the course of his employment. LSA- R. S.
23: 1031( A). A worker must prove the chain of causation required by the workers'
compensation statutory scheme: he must establish by a preponderance of the evidence
that the accident' was work- related, that the accident caused the injury, and that the
injury$ caused the disability. Namias v. Sunbelt Innovative Plastics, LLC, 2015-
1380 ( La. App. 1 Cir. 2/ 24/ 16), 190 So. 3d 745, 752, writ denied, 2016- 0482 ( La.
5/ 2/ 16), 212 So. 3d 1168. While the workers' compensation laws are to be construed
An " accident" 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."
8 An " injury" is generally defined in LSA- R. S. 23: 1021( 8)( a) as follows: "' Injury' and personal injuries' include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted."
7 liberally in favor of the worker, that interpretation cannot lessen the worker's burden.
Id. at 753.
On appeal, CB& I challenges the trial court's findings on the issues of accident
and injury. CB& I primarily argues that plaintiff failed to carry his burden of proof
regarding both issues because the only evidence he presented in support of his claim
was his own self-serving testimony, and CB& I produced evidence that discredits
plaintiff's version of the account. Accordingly, this court will examine the evidence
presented by plaintiff to determine whether he met his burden of proving that, more
probably than not, an accident occurred which resulted in his injury. If there is evidence
indicating a reasonable possibility of the occurrence of an accident and a causal
connection between the accident and plaintiff's injury, then the WCYs factual finding
concerning this issue cannot be " clearly wrong" and cannot be overturned by this court.
See Dubuisson v. Amclyde Engineered Prod. Co., 2012- 0010 ( La. App. 1 Cir.
12/ 31/ 12), 112 So. 3d 891, 896.
Occurrence of an Accident
A worker's testimony alone may be sufficient to discharge his burden of proving
an accident, 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. Namias,
190 So. 3d at 753. Corroboration of the worker's testimony may be provided by the
testimony of co- workers, spouses, friends, or by medical evidence. Hayes v.
Louisiana State Penitentiary, 2006- 0553 ( La. App. 1 Cir. 8/ 15/ 07), 970 So. 2d 547,
554- 55, writ denied, 2007- 2258 ( La. 1/ 25/ 08), 973 So. 2d 758.
CB& I argues that plaintiff's failure to file an accident report undermines plaintiff's
assertions that an accident occurred. However, the jurisprudence is well- settled on the
issue of failure to immediately report an accident. The fact that an employee does not
notify his employer immediately that he suffered an accident does not prohibit a finding
that the employee sustained an accident. Haws v. Prof' I Sewer Rehab., Inc., 1998-
2846 ( La. App. 1 Cir. 2/ 18/ 00), 763 So. 2d 683, 688. Further, the fact that a claimant
does not realize or diagnose the full extent of his injury immediately after an accident should not bar him from recovery. Crawford v. Pontchartrain Materials, 2006- 1780
La. App. 1 Cir. 3/ 28/ 07), 960 So. 2d 946, 950. Nor should the claimant or any other
employee be penalized for trying to work as much as he can, despite the pain.
Middleton v. Int' I Maint., 1995- 0238 ( La. App. 1 Cir. 10/ 6/ 95), 671 So. 2d 420, 424,
writ denied, 1995- 2682 ( La. 1/ 12/ 96), 667 So. 2d 523. Thus, the fact that plaintiff did
not immediately report the June 4, 2017 accident did not preclude the trial court's
finding that the accident occurred.
CB& I also contends that plaintiff's medical records9 contradict plaintiff's claims
that a work accident occurred. CB& I points out that the Lane medical records dated
June 29, 2017 reflect that plaintiff denied trauma or injury, and that the medical
records as a whole do not describe the mechanism of the accident until plaintiff's visit
with Dr. Shamieh on September 18, 2017. However, the trial court correctly noted in its
written reasons that although the June 5, 2017 West Feliciana medical records do not
describe the specific mechanism by which plaintiff was injured, they do reflect that
plaintiff was injured in connection with his employment. The West Feliciana medical
records from July 24, 2017 and August 23, 2017, as well as Dr. Thompson' s July 27,
2017 note that plaintiff had been advised that Dr. Thompson did not accept workers'
compensation cases, further link plaintiff's medical complaints with his employment.
The medical records therefore provide two permissible views of the evidence,
establishing a reasonable basis for the trial court's finding that a work accident
occurred.
CB& I further asserts that witness testimony impeached plaintiff's allegations of
the June 4, 2017 accident. Plaintiff and Mr. Tommy Brown, a co- worker, were the only
witnesses called to testify live at trial. CB& I produced the deposition testimony of
several witnesses: Mr. Shade, the foreman plaintiff was working with at the time of the
alleged accident; Lorenzo Cooper, the safety supervisor; Thomas Soloway, a
construction manager; and Gary Ourso, also a foreman. However, the witness
9 On January 21, 2020, this Court issued an ex proprio motu order directing CB& I to supplement the appellate record with the exhibits accepted into evidence at the trial of this matter. CB& I failed to comply. Ultimately, the workers' compensation court supplemented the appellate record with the requested exhibits.
4 testimony did not consistently contradict plaintiff's claims; to the contrary, Mr. Soloway,
Mr. Ourso, and Mr. Brown directly corroborated plaintiff's allegations.
At trial, Tommy Brown testified that he worked at CB& I with plaintiff. Mr. Brown
recounted that plaintiff told him that he' d injured his back. Mr. Brown also recalled
overhearing plaintiff's telephone conversations with plaintiff's sister, during which
plaintiff spoke of back problems caused by lifting something in the pipe yard and by a
rough -driving truck." Mr. Brown also testified that he had seen plaintiff laying on a
bench in the break room because his back was bothering him. Plaintiff testified that he
believed he told Mr. Shade that he had been hurt before leaving his shift the day of the
accident, but was not sure. During Mr. Shade' s deposition, he stated that he recalled
lifting girders in the laydown yard with plaintiff, but he did not recall plaintiff lifting
pipes or beams, nor did he recall plaintiff complaining that he had been injured. Mr.
Shade' s denial that he was aware of plaintiff's claims of an accident was questioned in
light of the July 8, 2017 disciplinary report, which Mr. Shade had signed and on which
plaintiff described hurting his back lifting beams. Mr. Shade stated that he had signed
the disciplinary report but claimed not to have read it. Mr. Shade did, however,
remember plaintiff saying that driving the yard dog truck was hurting his back.
Mr. Soloway recalled plaintiff saying that he had previously hurt his back lifting a
beam, and that the yard dog truck he had been given to drive was hurting his back. Mr.
Soloway asked plaintiff whether he had reported the injury to his supervisor. Plaintiff
told Mr. Soloway that he had not reported it, and Mr. Soloway advised plaintiff that he
should.
Gary Ourso was a foreman at CB& I from June 23, 2017, through July 19, 2017.
Mr. Ourso testified during his deposition that plaintiff told him that he had hurt his back
and ' nobody wanted to do anything about it." Mr. Ourso recalled plaintiff saying that he
injured his back while lifting a beam with David Shade, and that the yard dog truck was
rough riding" and hurting plaintiff's back. Mr. Ourso immediately instructed plaintiff to
report the injury to safety. Mr. Ourso testified that he then watched plaintiff walk into
Prime, CB& I' s on- site medical facility. Further, Mr. Ourso stated that he '[ didn' t] think
David [ Shade] and John Vessel got along too good."
10 Plaintiff also maintained that he reported his injury several times to Mr. Cooper,
the safety supervisor, though he could not recall when. Mr. Cooper did not remember
plaintiff reporting an injury to him. However, Mr. Cooper did recall plaintiff telling him
that he was dissatisfied with the older truck.
Regarding Prime, Mr. Cooper testified that if plaintiff reported an injury he should
have been brought to Prime and the issue should have been reported to the safety
department. Further, Mr. Cooper stated that Prime should have records if an employee
stepped foot" in Prime and reported an injury. CB& I produced one note from Prime,
dated July 23, 2017, which documented that plaintiff sought treatment. Plaintiff testified
that he believed he had gone to Prime twice, and that this note was from the second
visit. As noted above, Mr. Ourso testified that he had watched plaintiff walk into Prime.
Mr. Ourso' s last day at CB& I was July 19, 2017, which predated the July 23, 2017 Prime
record. Thus, Mr. Ourso' s testimony supports plaintiff's claims that he reported to Prime
twice, and indicates that Prime failed to record one of those visits in contradiction of Mr.
Cooper' s explanation of CB& I' s policy. In addition, Mr. Cooper was presented with
plaintiff's June 16, 2017 work excuse during his deposition, and testified that he had
never seen the work excuse before. Mr. Cooper also stated that plaintiff's foreman
should have given the excuse to safety upon receipt. This testimony suggests that CB& I
did not follow their own safety policy, and moreover, is consistent with plaintiff's
statements to Mr. Ourso that no one at CB& I would address his injury.
As set forth above, when there are two permissible views of the evidence, the
WCJ' s factual finding concerning this issue cannot be " clearly wrong" and cannot be
overturned by this court. See Dubuisson, 112 So. 3d at 895. In this matter, there are
clearly two permissible views of the evidence. CB& I correctly argues that plaintiff did
not immediately report an accident and that plaintiff's earliest medical records do not
describe the mechanism of plaintiff's injury. However, plaintiff presented ample
evidence supporting his claims: plaintiff testified to the occurrence of the accident;
there are medical records linking plaintiff's complaints to a work accident; the July 8,
2017 disciplinary report contains plaintiff's written statement describing the accident;
Mr. Ourso and Mr. Soloway testified that plaintiff told them he had been hurt lifting a
11 beam at work, and that driving the yard dog truck had aggravated that injury; and Mr.
Brown testified that he overheard plaintiff tell the same story to his sister. Corroboration
of the worker's testimony may be provided by the testimony of co- workers, spouses,
friends, or by medical evidence. Hayes, 970 So. 2d at 555. This evidence can be found
to reasonably corroborate the plaintiffs account of the unwitnessed and unreported
accident. Thus, given plaintiffs testimony, the corroborative evidence, and the WCJ' s
specific determination that plaintiff was a credible witness, the WCJ' s finding that an
accident occurred on June 4, 2017, was reasonably supported by the record and we
cannot say that it was manifestly erroneous. We therefore affirm the WCJ' s finding that
a work- related accident occurred. See Namias, 190 So. 3d at 754. This assignment of
error lacks merit.
Causation of Injury
Causation is not necessarily and exclusively a medical conclusion. It is usually the
ultimate fact to be found by the fact finder based on all credible evidence. Harrison v.
Baldwin Motors, 2003- 2682 ( La. App. 1 Cir. 11/ 3/ 04), 889 So. 2d 313, 316, writ
denied, 2005- 0249 ( La. 4/ 1/ 05), 897 So. 2d 609. An employee' s work- related accident is
presumed to have caused his disability when the claimant proves that before the
accident, he had not manifested his disabling symptoms; that commencing with the
accident, disabling symptoms appeared; and that there is either medical or
circumstantial evidence indicating a reasonable possibility of a causal connection
between the accident and the disabling condition. Dubuisson, 112 So. 3d at 896.
In this matter, plaintiff presented the trial court with proof that he had not
manifested symptoms prior to the June 4, 2017 accident. During Dr. Thompson' s
deposition, he was asked whether plaintiff ever sought treatment for complaints related
to his back or spine prior to 2017. Dr. Thompson testified that plaintiff had not. lo
Additionally, CB& I produced pre- employment health screens and questionnaires
completed by plaintiff for the years 2012, 2013, 2015, 2016, and 2017. Each set of
io Although Dr. Thompson' s medical records reflected that plaintiff reported three days of thoracic back pain during an April 14, 2015 visit, Dr. Thompson affirmatively distinguished between the previous thoracic pain, which involves the area around the rib cage, and plaintiff's current complaints of lumbar pain, which involves the lower back.
12 records affirmatively reflected that plaintiff did not have a history of back injury or back
pain.
As to whether the accident caused plaintiff's injury, as with the issue of whether
an accident occurred, evidence was presented supporting two permissible views of the
evidence. Dr. Schroeder diagnosed plaintiff with low back pain and lumbar degenerative
disc disease. Dr. Schroeder noted that plaintiff did not report the mechanism of his
injury as the lifting accident until September of 2017, and opined " that is not felt to be
a history of an episode at work documented in the records in a timely fashion as there
are other reports which document no specific injury." Dr. Schroeder's opinion was that
plaintiff's " current back pain [ was] not related to any one specific work episode lifting a
beam," and he recommended no additional treatment. Dr. Schroeder also found
evidence of " symptom exaggeration and/ or somatic complaints."
However, Dr. Graham believed otherwise. Dr. Graham was tendered as an expert
in the field of pain management. Dr. Graham first saw plaintiff on October 19, 2017, on
referral from Dr. Shamieh. Dr. Graham confirmed that the MRI findings of bulging discs
and spinal stenosis could be caused or aggravated by lifting a heavy object. Dr. Graham
explained that the degenerative changes seen on plaintiff's MRI were expected after
age thirty, and that an MRI does not always show evidence of an acute injury,
concluding " there' s nothing really truly objective that you could say on an MRI is, haha
sic], that's new or that's old." Dr. Graham also essentially testified that plaintiff's
complaints and symptoms were consistent with a lifting injury and not a degenerative
condition. He stated that the mechanics of a lifting injury are more likely to cause a
lumbar disc injury, and such an injury is likely irritated by sitting with flexed legs as
when driving a truck. In contrast, degenerative conditions are less painful in a sitting
position. Dr. Graham also stated that if there were no lifting accident, driving an older
truck without substantial shocks could be enough to aggravate or exacerbate plaintiff's
conditions in his lumbar spine. Dr. Graham treated plaintiff with prescriptions, physical
therapy, and behavior modifications in the form of work restrictions. Dr. Graham
restricted plaintiff to light duty at work, and stated that he would restrict plaintiff from
sitting for longer than thirty minutes at a time. Dr. Graham also reviewed Dr.
13 Schroeder's report and affirmatively stated that he disagreed with Dr. Schroeder's
opinion that plaintiff was at maximum medical improvement.
CB& I argues extensively that the June 5, 2017 West Feliciana Parish Hospital
medical records identify plaintiff's complaint as " flank pain," and therefore contradict his
testimony that he injured his back. However, these arguments are misleading. While
the medical records state in part that plaintiff's chief complaint is flank pain, the records
immediately and repeatedly afterwards reflect that plaintiff reported "[ b] ack pain, right
lumbar paraspinal musculature." Further, as noted above, the medical records went on
to specifically document that plaintiff sought medical attention for back pain. We
additionally note that plaintiff testified that he does not know what the term " flank pain"
means.
The record reflects contradictions regarding whether plaintiff's injury was caused
by the June 4, 2017 accident. However, the WO may have simply found plaintiff to be
a poor historian, noting that plaintiff was an unsophisticated employee who had been
employed as a manual laborer his entire life. Further, the WO made a specific factual
determination of plaintiff's credibility, and chose to assign greater weight to plaintiff's
testimony and to the evidence plaintiff offered in support of his case. Given plaintiff's
testimony and the expert witness deposition of Dr. Graham, as well as the medical
records and lay witness testimony linking plaintiff's injury with the accident as set forth
in the previous section, the WO had a reasonable basis to support his findings.
Moreover, our review of the record in its entirety does not indicate that this finding was
clearly wrong. Therefore, we cannot say that the WCJ' s finding that plaintiff sustained
injuries to his back as a result of the June 4, 2017 accident was unsupported by the
record and therefore manifestly erroneous. As such, we affirm the WCJ' s finding that a
work- related accident occurred on June 4, 2017 and resulted in injuries to the plaintiff's
lower back.
Entitlement to Supplemental Earnings Benefits
As an assignment of error on appeal, CB& I challenges the trial court's award of
SEB to plaintiff in the amount of $ 657. 00 per week starting July 31, 2017 to present.
However, CB& I does not address the merits of this assignment of error beyond arguing
14 that plaintiff is not entitled to compensation benefits because he did not prove an
accident and injury. Having found no merit in CB& I's assignments of error regarding the
occurrence of an accident and an injury caused by same, and being presented with no
other arguments regarding this assignment of error, we accordingly find this
assignment of error lacks merit."
CONCLUSION
For the above and foregoing reasons, the January 7, 2020 judgment of the
workers' compensation judge is affirmed in all respects. Costs associated with this
appeal are assessed against defendant -appellant, CB& I.
APPEAL MAINTAINED; AFFIRMED.
11 We note that Rule 1- 3 of the Uniform Rules of Louisiana Courts of Appeal provides, and our jurisprudence generally establishes, that this Court's review is limited to those issues that were submitted to the trial court and that are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise. Bezou v. Bezou, 2015- 1879 ( La. App. 1 Cir. 9/ 16/ 16), 203 So. 3d 488, 493, writ denied, 2016- 1869 ( La. 12/ 5/ 16), 210 So. 3d 814. Additionally, Rule 2- 12. 4( 8)( 4) of the Uniform Rules of Louisiana Courts of Appeal provides that "[ a] II assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed." This assignment of error was not briefed, and could therefore also be found abandoned.