STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-231
JOSEPH DEMAREST
VERSUS
NI WEDLING SUPPLY, LLC AND THE GRAY INSURANCE COMPANY
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3 PARISH OF CALCASIEU, NO. 19-05205 HONORABLE JONATHAN W. BROWN WORKERS’ COMPENSATION JUDGE
CHARLES G. FITZGERALD JUDGE
Court composed of Sylvia R. Cooks, Chief Judge, and Charles G. Fitzgerald and Gary J. Ortego, Judges.
AFFIRMED. Marcus M. Zimmerman 949 Ryan Street, Suite 110 Lake Charles, Louisiana 70601 (337) 474-1644 Counsel for Plaintiff/Appellant: Joseph Demarest
Jeremy N. Morrow Jennifer M. Ardoin Neuner Pate One Petroleum Center, Suite 200 1001 West Pinhook Road Lafayette, Louisiana 70503 (337) 237-7000 Counsel for Defendants/Appellees: NI Welding Supply, LLC The Gray Insurance Company FITZGERALD, Judge.
The issue here is whether the workers’ compensation judge (WCJ) manifestly
erred in denying compensation benefits.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Joseph Demarest, was formerly employed by NI Welding Supply
LLC. Joseph alleges that he hurt his back in the course of employment on July 25,
2019. Two weeks later, he filed a disputed claim for compensation against NI
Welding and its insurer, The Gray Insurance Company. Defendants reconvened,
claiming that Joseph willfully made false statements for the purpose of obtaining
compensation benefits.
Trial was held in June 2021. Many months later, in February 2022, the WCJ
issued a final judgment with accompanying written reasons. In essence, the WCJ
denied all claims. Joseph appealed.
On appeal, Joseph asserts the following assignments of error:
1. The WCJ committed manifest error in finding that [Joseph] failed to meet his burden of proving that he suffered a compensable work-related accident to his lower back in the mid- morning of July 25, 2019.
2. The WCJ committed manifest error in failing to award [Joseph] weekly temporary total disability benefits (TTD indemnity) from after his last day of work, August 6, 2019, with legal/judicial interest on the past due indemnity benefits.
3. The WCJ committed manifest error in failing to award [Joseph] medical benefits.
4. The WCJ committed manifest error in failing to award [Joseph] penalties and attorney fees.
5. The WCJ committed manifest error in failing to award [Joseph] reimbursement of litigation expenses. LAW AND ANALYSIS
The manifest error standard of review is the correct standard to be applied by
the appellate court in workers’ compensation cases. Dean v. Southmark Constr., 03-
1051 (La 7/6/04), 879 So.2d 112. The WCJ’s findings will not be set aside absent a
showing that they are clearly wrong. Alexander v. Pellerin Marble & Granite, 93-
1698 (La. 1/14/94), 630 So.2d 706. “The court of appeal may not reverse the
findings of the lower court even when convinced that had it been sitting as the trier
of fact, it would have weighed the evidence differently.” Blake v. Turner Indus. Grp.,
LLC, 12-140, p. 6 (La.App. 1 Cir. 9/21/12), 111 So.3d 21, 25, writ denied, 12-2288
(La. 11/30/12), 103 So.3d 376.
In general, a workers’ compensation claimant is entitled to compensation
under La.R.S. 23:1031(A) if he “receives personal injury by accident arising out of
and in the course of his employment.” The claimant “must establish that the accident
was work-related, that the accident caused the injury, and that the injury caused the
disability.” Lenox v. Cent. La. Spokes, LLC, 18-556, pp. 4-5 (La.App. 3 Cir. 2/13/19),
265 So.3d 834, 838. Thus, the claimant initially bears the burden of proving that an
accident occurred on the job and that he sustained an injury. Id. The claimant must
then prove a causal connection between the accident and the resulting disability. Id.
As explained in Lenox, 265 So.3d at 838 (citations omitted):
Even if the employee suffered from a pre-existing medical condition, he may still meet his burden of proof of causation if he proves that the reported accident aggravated, accelerated, or combined with the pre-existing condition to produce a compensable disability. He may be aided in meeting the foregoing burden by a presumption of causation, if he can prove that before the accident he had not manifested disabling symptoms, that such symptoms commenced with the accident and manifested themselves thereafter, and that either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and onset of the disabling symptoms.
2 In his first assignment of error, Joseph contends that the WCJ manifestly erred
in finding that he failed to meet his burden of proving that he suffered a compensable
work-related accident to his lower back on July 25, 2019.
As stated by the WCJ, Joseph “failed to prove by a preponderance of evidence
that an injury arising out of and in the course of his employment which was causally
related to his work has occurred.” The WCJ’s finding was based on conflicting
evidence. A summary of the record evidence is set forth below.
At trial, Joseph testified that he worked for NI Welding as a commercial driver
for approximately seventeen years. In addition to driving, his job duties included
ordering cylinder tanks, picking up the tanks from one location and delivering them
to another, and filling the tanks with different gases and delivering them to customers.
Joseph’s supervisor was Gil Arabie II.
Joseph testified that on the day of his injury, he went to a facility operated by
Targa, a customer, where he was supposed to pick up one empty helium tank. Yet
the delivery ticket shows that Joseph was there to retrieve thirteen tanks, including
the empty helium tank; and this was confirmed by the testimony of his supervisor,
Gil, at trial. Joseph also testified that the empty helium tank weighed approximately
150 pounds and was tan or dark brown. In contrast, Gil testified that all helium tanks
are yellow.
Joseph then explained that while he was at the Targa facility, he was assisted
by one of its employees: an unnamed white male who was in his forties. Joseph
further explained that he picked up the bottom of the cylinder tank while the Targa
employee held the top of it, and together they pulled the tank out of the rocks and
placed it upon the liftgate of Joseph’s work truck, which was approximately ten feet
away. By contrast, Gil testified that all NI Welding employees, including Joseph,
3 are prohibited from eliciting the help of nonemployees due to liability and safety
concerns. Gil noted that Joseph could have rolled the empty cylinder tank to the
liftgate rather than asking a customer’s employee to help pick it up.
Nevertheless, Joseph testified that after the cylinder tank was secured in the
truck bed, he told the Targa employee that he had injured his back. Yet Gil testified
that NI Welding never received any documentation from Targa about the alleged
accident. Moreover, during Joseph’s deposition, he testified that the Targa employee
signed the delivery ticket after the job was finished. But Gil disputed this at trial,
explaining that the delivery ticket had not been signed by any Targa employee. And
the delivery ticket itself, which was admitted into evidence, confirms Gil’s testimony.
Next, Joseph testified that immediately after the accident, he returned to NI
Welding and told Gil what had happened: that he was involved in an accident, that
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-231
JOSEPH DEMAREST
VERSUS
NI WEDLING SUPPLY, LLC AND THE GRAY INSURANCE COMPANY
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3 PARISH OF CALCASIEU, NO. 19-05205 HONORABLE JONATHAN W. BROWN WORKERS’ COMPENSATION JUDGE
CHARLES G. FITZGERALD JUDGE
Court composed of Sylvia R. Cooks, Chief Judge, and Charles G. Fitzgerald and Gary J. Ortego, Judges.
AFFIRMED. Marcus M. Zimmerman 949 Ryan Street, Suite 110 Lake Charles, Louisiana 70601 (337) 474-1644 Counsel for Plaintiff/Appellant: Joseph Demarest
Jeremy N. Morrow Jennifer M. Ardoin Neuner Pate One Petroleum Center, Suite 200 1001 West Pinhook Road Lafayette, Louisiana 70503 (337) 237-7000 Counsel for Defendants/Appellees: NI Welding Supply, LLC The Gray Insurance Company FITZGERALD, Judge.
The issue here is whether the workers’ compensation judge (WCJ) manifestly
erred in denying compensation benefits.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Joseph Demarest, was formerly employed by NI Welding Supply
LLC. Joseph alleges that he hurt his back in the course of employment on July 25,
2019. Two weeks later, he filed a disputed claim for compensation against NI
Welding and its insurer, The Gray Insurance Company. Defendants reconvened,
claiming that Joseph willfully made false statements for the purpose of obtaining
compensation benefits.
Trial was held in June 2021. Many months later, in February 2022, the WCJ
issued a final judgment with accompanying written reasons. In essence, the WCJ
denied all claims. Joseph appealed.
On appeal, Joseph asserts the following assignments of error:
1. The WCJ committed manifest error in finding that [Joseph] failed to meet his burden of proving that he suffered a compensable work-related accident to his lower back in the mid- morning of July 25, 2019.
2. The WCJ committed manifest error in failing to award [Joseph] weekly temporary total disability benefits (TTD indemnity) from after his last day of work, August 6, 2019, with legal/judicial interest on the past due indemnity benefits.
3. The WCJ committed manifest error in failing to award [Joseph] medical benefits.
4. The WCJ committed manifest error in failing to award [Joseph] penalties and attorney fees.
5. The WCJ committed manifest error in failing to award [Joseph] reimbursement of litigation expenses. LAW AND ANALYSIS
The manifest error standard of review is the correct standard to be applied by
the appellate court in workers’ compensation cases. Dean v. Southmark Constr., 03-
1051 (La 7/6/04), 879 So.2d 112. The WCJ’s findings will not be set aside absent a
showing that they are clearly wrong. Alexander v. Pellerin Marble & Granite, 93-
1698 (La. 1/14/94), 630 So.2d 706. “The court of appeal may not reverse the
findings of the lower court even when convinced that had it been sitting as the trier
of fact, it would have weighed the evidence differently.” Blake v. Turner Indus. Grp.,
LLC, 12-140, p. 6 (La.App. 1 Cir. 9/21/12), 111 So.3d 21, 25, writ denied, 12-2288
(La. 11/30/12), 103 So.3d 376.
In general, a workers’ compensation claimant is entitled to compensation
under La.R.S. 23:1031(A) if he “receives personal injury by accident arising out of
and in the course of his employment.” The claimant “must establish that the accident
was work-related, that the accident caused the injury, and that the injury caused the
disability.” Lenox v. Cent. La. Spokes, LLC, 18-556, pp. 4-5 (La.App. 3 Cir. 2/13/19),
265 So.3d 834, 838. Thus, the claimant initially bears the burden of proving that an
accident occurred on the job and that he sustained an injury. Id. The claimant must
then prove a causal connection between the accident and the resulting disability. Id.
As explained in Lenox, 265 So.3d at 838 (citations omitted):
Even if the employee suffered from a pre-existing medical condition, he may still meet his burden of proof of causation if he proves that the reported accident aggravated, accelerated, or combined with the pre-existing condition to produce a compensable disability. He may be aided in meeting the foregoing burden by a presumption of causation, if he can prove that before the accident he had not manifested disabling symptoms, that such symptoms commenced with the accident and manifested themselves thereafter, and that either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and onset of the disabling symptoms.
2 In his first assignment of error, Joseph contends that the WCJ manifestly erred
in finding that he failed to meet his burden of proving that he suffered a compensable
work-related accident to his lower back on July 25, 2019.
As stated by the WCJ, Joseph “failed to prove by a preponderance of evidence
that an injury arising out of and in the course of his employment which was causally
related to his work has occurred.” The WCJ’s finding was based on conflicting
evidence. A summary of the record evidence is set forth below.
At trial, Joseph testified that he worked for NI Welding as a commercial driver
for approximately seventeen years. In addition to driving, his job duties included
ordering cylinder tanks, picking up the tanks from one location and delivering them
to another, and filling the tanks with different gases and delivering them to customers.
Joseph’s supervisor was Gil Arabie II.
Joseph testified that on the day of his injury, he went to a facility operated by
Targa, a customer, where he was supposed to pick up one empty helium tank. Yet
the delivery ticket shows that Joseph was there to retrieve thirteen tanks, including
the empty helium tank; and this was confirmed by the testimony of his supervisor,
Gil, at trial. Joseph also testified that the empty helium tank weighed approximately
150 pounds and was tan or dark brown. In contrast, Gil testified that all helium tanks
are yellow.
Joseph then explained that while he was at the Targa facility, he was assisted
by one of its employees: an unnamed white male who was in his forties. Joseph
further explained that he picked up the bottom of the cylinder tank while the Targa
employee held the top of it, and together they pulled the tank out of the rocks and
placed it upon the liftgate of Joseph’s work truck, which was approximately ten feet
away. By contrast, Gil testified that all NI Welding employees, including Joseph,
3 are prohibited from eliciting the help of nonemployees due to liability and safety
concerns. Gil noted that Joseph could have rolled the empty cylinder tank to the
liftgate rather than asking a customer’s employee to help pick it up.
Nevertheless, Joseph testified that after the cylinder tank was secured in the
truck bed, he told the Targa employee that he had injured his back. Yet Gil testified
that NI Welding never received any documentation from Targa about the alleged
accident. Moreover, during Joseph’s deposition, he testified that the Targa employee
signed the delivery ticket after the job was finished. But Gil disputed this at trial,
explaining that the delivery ticket had not been signed by any Targa employee. And
the delivery ticket itself, which was admitted into evidence, confirms Gil’s testimony.
Next, Joseph testified that immediately after the accident, he returned to NI
Welding and told Gil what had happened: that he was involved in an accident, that
he suffered a back injury, and that he needed to see a doctor. Gil, in turn, testified
that Joseph never told him about an injury or accident on July 25, 2019. Instead,
Joseph told him that he needed to leave to see a doctor. Gil explained that he did
not pry into the reason for the doctor visit out of respect for Joseph’s privacy,
especially since Joseph did not complain of a work-related injury and there were
other employees who could cover for him. Gil testified that he first received notice
of the alleged accident when NI Welding was served with Joseph’s disputed claim.
Gil was then asked about company protocols for employee accidents.
According to Gil, when a work-related accident is reported, company policy
involves completing an accident report, notifying general counsel, and drug testing
the injured employee. None of this happened in this instance. By contrast, accident
reports were prepared in 2005 and 2015 for previous work-related injuries sustained
by Joseph.
4 Thomas Gary, another WI Welding employee, also testified at trial. Thomas
and Joseph were co-workers and friends. According to Thomas, Joseph never
mentioned that he had a work-related accident or sustained a back injury.
In addition to the witness testimony, numerous medical records were admitted
into evidence. For example, the medical records of Dr. William Lowry dated July
26, 2019 (one day after the incident), state that Joseph “is here for a recheck of low
back pain. He denies any injury or trauma, but says he has been doing some heavy
lifting at work and felt that has increase[d] his pain. Says he has had pain since
2018.” But at trial, Joseph testified that Dr. Lowry’s records were incorrect.
Regardless, Dr. Lowry excused Joseph from work until July 31, 2019.
Joseph testified that he returned to work on July 31, 2019, but the pain grew
worse causing him to return to Dr. Lowry the very next day. And this time, Dr.
Lowry excused Joseph from work until August 5, 2019. Dr. Lowry also ordered an
MRI. Thereafter, Joseph worked on August 5 and August 6, 2019. Gil testified that
Joseph performed all work duties without restrictions on those days.
The record contains two texts messages from Joseph to Gil. In the first text
message, which is dated August 6, 2019, Joseph states that his MRI results are bad
and that he would be seeing Dr. Lowry the following day. In the second text message,
which is dated August 7, 2019, Joseph states that Dr. Lowry has excused him from
work until September 5, 2019. But neither text message states that his injuries were
caused by a work-related accident.
The record also contains Joseph’s request for accommodation plan dated
August 7, 2019, along with Dr. Lowry’s corresponding physician information sheet.
Therein, Dr. Lowry states that Joseph’s job duties should be limited to operating a
motor vehicle. In response, on August 12, 2019, NI Welding agreed to this
5 accommodation. Yet the next day, NI Welding received an amended physician
information sheet from Dr. Lowry, notifying that even driving is too much.
As stated above, Joseph filed his disputed claim for compensation on August
7, 2019, which is the same day that NI Welding received Joseph’s first request for
accommodation. NI Welding contends that this is when it was first notified of
Joseph’s alleged work-related accident and injury.
The record also contains the examination report of Dr. Clark Gunderson dated
May 21, 2020. In this report, Dr. Gunderson states that he examined Joseph on May
19, 2020, for low back pain after he “was injured in July of 2019 while lifting a 150
pound cylinder while at work.” Joseph’s medical history, as stated in the report, was
provided by Joseph during his examination. And the report specifically refers to an
October 2018 incident when Joseph “woke up one morning with lower back
complaints[.]”
As to his 2018 back pain, Joseph testified at trial that he woke up experiencing
back pain in October of that year. Medical records from October 25, 2018, indicate
that Joseph’s back pain was not related to an accident. Rather, it was acute and
recurrent with no known injury. At trial, Joseph testified that he could not say that
his 2018 symptoms were work related. But in his deposition, Joseph stated that his
2018 back pain was work-related because it started while he was at work.
In summary, there are two permissible views of the evidence. The WCJ
believed Defendants’ version, finding that Joseph did not prove that his back
symptoms were caused or aggravated by a work-related accident on July 25, 2019.
“[W]here there is conflict in the testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon review, even though the
appellate court may feel that its own evaluations and inferences are as reasonable.”
6 Rosell v. ESCO, 549 So.2d 840, 845 (La.1989). And when two permissible views
of the evidence exist, the factfinder’s choice between them cannot be manifestly
erroneous or clearly wrong. Id.
In the end, the WCJ did not manifestly err in finding that Joseph failed to meet
his burden of proof as to causation. Consequently, Joseph’s remaining assignments
of error are now moot.
DISPOSITION
For the above reasons, the judgment of the workers’ compensation judge is
affirmed. All costs of this appeal are assessed to Joseph Demarest.
AFFIRMED.