Johnson v. Transamerican Waste Co.

741 So. 2d 764, 1999 WL 346598
CourtLouisiana Court of Appeal
DecidedJune 2, 1999
Docket99-190
StatusPublished
Cited by10 cases

This text of 741 So. 2d 764 (Johnson v. Transamerican Waste 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
Johnson v. Transamerican Waste Co., 741 So. 2d 764, 1999 WL 346598 (La. Ct. App. 1999).

Opinion

741 So.2d 764 (1999)

Oudrey JOHNSON, Plaintiff-Appellant,
v.
TRANSAMERICAN WASTE COMPANY and American Home Assurance Company, Defendants-Appellees.

No. 99-190.

Court of Appeal of Louisiana, Third Circuit.

June 2, 1999.

*766 Russell Louis Sylvester, Natchitoches, for Oudrey Johnson.

Samuel Newman Poole, Jr., Alexandria, for Transamerican, Inc.

BEFORE: THIBODEAUX, COOKS, and PICKETT, Judges.

THIBODEAUX, Judge.

Oudrey Johnson brought suit against his employer, Transamerican Waste Company (hereinafter "Transamerican"), for temporary total disability benefits, medical expenses, penalties, and attorney fees. Johnson alleged that he sustained an injury while working in the course of his employment on December 9, 1997 and exacerbated the injury on December 12, 1997. Following a trial on the merits, the workers' compensation judge denied Johnson's claim, finding that Johnson failed to prove that he sustained a work-related accident. For the reasons which follow, the judgment of the workers' compensation judge denying Johnson temporary total disability benefits, medical expenses, penalties, and attorney fees is reversed. We award $8,000.00 for attorney fees and remand to the Office of Workers' Compensation to determine the amount of the penalties for Transamerican's failure to pay disability and medical benefits to Johnson.

I.

ISSUES

We shall consider:

1. whether the workers' compensation judge was manifestly erroneous in finding that Johnson failed to prove the occurrence of a work-related accident, and
2. whether Johnson is entitled to an award of penalties and attorney fees.

II.

FACTS

Oudrey Johnson was employed as a garbage truck driver by Transamerican. Johnson alleges that he injured his back while attempting to lift a heavy bag on Tuesday, December 9, 1997. Johnson testified that he alerted his co-worker, Jesse Burton, of the injury and requested assistance in lifting the bag to the garbage truck. He completed his shift, but was careful not to engage in any other lifting. Because he believed he had suffered only a minor muscle strain, Johnson continued to work throughout the week.

Johnson alleges that he aggravated his back injury on Friday, December 12, 1997. Johnson claims that after assisting a co-worker, David Prejean, compact the trash in the back of the garbage truck, he experienced a severe increase of back pain. He alleges that his condition improved after resting for a few minutes, and he was able to complete his shift. He believed his condition would improve with rest over the weekend.

Johnson's condition did not improve over the weekend. On Monday, December 15, 1997, Johnson called his supervisor, Chris Nicholas, and informed him that he was having pain in his back and legs. Johnson said he was going to the doctor and would advise Nicholas of his condition. Nicholas testified that he did receive a phone call from Johnson, but claims that Johnson failed to inform him that the injury was sustained in a work-related accident. Nicholas stated that he was informed later that week of Johnson's allegation that he was injured in the course of his employment.

Johnson's family physician, Dr. Bryan Picou, testified in deposition as to Johnson's past medical history. He stated that in September of 1997, Johnson suffered a muscle strain in his lower back which resolved *767 itself in one week. He explained that the muscle strain was not an injury that would last for a significant period of time. He stated that Johnson had not returned to him with complaints of back pain until December of 1997.

Upon examining Johnson in December of 1997, Dr. Picou found that Johnson had a severe muscle spasm and a positive straight leg raising test. He explained that his clinical findings were much different from his findings in September of 1997. Dr. Picou instructed Johnson not to work for a week and to return for a follow-up visit. Johnson returned to Dr. Picou, complaining of continued pain in his back and legs. Dr. Picou testified that he believed Johnson had a disk injury and that he instructed Johnson to get an MRI. He stated that Johnson was not capable of working. He explained that he has not examined Johnson since January of 1998, but stated that if Johnson's condition has not improved, then he is still incapable of working. Johnson testified that due to the pain in his back and legs, he has not worked since December 12, 1997.

III.

LAW AND ARGUMENT

Standard of Review

An appellate court may not set aside the factual findings of a workers' compensation judge in the absence of manifest error or unless it is clearly wrong. Wackenhut Corrections Corp. v. Bradley, 96-796 (La.App. 3 Cir. 12/26/96), 685 So.2d 661. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Deference is due to the factfinder's determinations regarding the credibility of witnesses "for only the factfinder 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." Wackenhut Corrections Corp., 685 So.2d at 663 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). However, "the appellate court is not required by [the manifest error/clearly wrong] principle to affirm the trier of fact's refusal to accept as credible uncontradicted testimony ... where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles." Bruno v. Harbert Int'l Inc., 593 So.2d 357, 362 (La.1992) (quoting West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La. 1979)).

Temporary Total Disability Benefits

The plaintiff in a workers' compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Bruno, 593 So.2d 357. An "accident" is defined 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." La.R.S. 23:1021(1).

A plaintiff's testimony alone may be sufficient to discharge his burden of proving the occurrence of an accident where 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." Bruno, 593 So.2d at 361. The testimony of fellow workers or the medical evidence may corroborate the worker's testimony. Id. "In determining whether the worker 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.'" Id. (quoting West, 371 So.2d at 1147).

*768 In this case, Transamerican contends that Johnson's testimony alone is not sufficient to discharge his burden because internal inconsistencies in his testimony cast serious doubt on his version of the events. It emphasizes that although Johnson had the opportunity to report his injury during the week of December 9, 1997, he failed to do so until the following week.

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741 So. 2d 764, 1999 WL 346598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-transamerican-waste-co-lactapp-1999.