Keith v. Office of Risk Management

516 So. 2d 440, 1987 WL 1497
CourtLouisiana Court of Appeal
DecidedNovember 10, 1987
DocketCA861244
StatusPublished
Cited by8 cases

This text of 516 So. 2d 440 (Keith v. Office of Risk Management) 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
Keith v. Office of Risk Management, 516 So. 2d 440, 1987 WL 1497 (La. Ct. App. 1987).

Opinion

516 So.2d 440 (1987)

Bernell L. KEITH,
v.
LOUISIANA STATE OFFICE OF RISK MANAGEMENT.

No. CA861244.

Court of Appeal of Louisiana, First Circuit.

November 10, 1987.
Rehearing Denied January 5, 1988.

*441 Joseph H. Simpson, Amite, for plaintiff-appellee.

Tom H. Matheny, Hammond, Stephen W. Cavanaugh, Baton Rouge, for defendant-appellant Louisiana State Office of Risk Management.

Before LANIER, CRAIN and LeBLANC, JJ.

LANIER, Judge.

This is a suit for worker's compensation benefits, medical expenses and statutory penalties. The employer denied liability, asserting the employee did not suffer a work-related accident. The trial court found as fact that the employee was injured by an accident which occurred during the course and scope of his employment but that the employer was not arbitrary and capricious in refusing to pay worker's compensation benefits. The trial court found the employee totally disabled and awarded him weekly benefit payments of $138.39 and medical expenses of $10,115.90. This suspensive appeal followed.

FACTS

Bernell Keith was an employee of Lallie Kemp Charity Hospital (Hospital) in Independence, Tangipahoa Parish, Louisiana. Keith's job title was Operator Engineer II. His responsibilities consisted of checking the Hospital's equipment to see if it was operating properly, installing air-conditioners, performing plumbing work and doing general maintenance.

In September of 1984, while helping the housekeeping supervisor, Deloris McLain, move a fifty-five gallon drum of wax, Keith slipped and fell on his buttocks. Plaintiff testified he felt pain when he fell, and, a few weeks after he fell, he started having pain in his leg. At the time of the accident, Keith did not report the incident to his employer. He continued to work following the accident until March 18, 1985, when he consulted Dr. Larry Ferachi because of increasing pain in his leg.

After examining the plaintiff, Dr. Ferachi's clinical impression was that Keith suffered from a herniated nucleus pulposis L5-S1 level on the right. Because of this finding, Keith was hospitalized on March 19, 1985. He underwent diagnostic testing and subsequent back surgery. The surgery was performed by Dr. J. Larry Fambrough. The surgery revealed that Keith had a ruptured disc at the L5-S1 level which impinged upon the dura. A disc fragment was removed, and Keith was discharged from the hospital on April 1, 1985.

SUFFICIENCY OF EVIDENCE OF LIABILITY

(Assignments of Error Numbers 1 and 3)

Defendant argues that the court erred in finding plaintiff's injury was work related. Defendant contends the evidence does not support the conclusion that the accident occurred within the course and scope of plaintiff's employment. Defendant further argues that the court erred in finding that Keith's injury was caused by the incident alleged. Defendant maintains that plaintiff did not prove by a preponderance of the evidence that the injury sustained was caused by the accident.

A worker's compensation claimant must establish the occurrence of a work-related accident by a preponderance of the evidence. Neldare v. Board of Supervisors of Southern University, 460 So.2d 26 (La.App. 1st Cir.1984); Johnson v. Louisiana State University, 417 So.2d 467 (La. App. 1st Cir.1982). A plaintiff in a worker's compensation suit has the burden of establishing by a preponderance of the evidence the causal connection between his disability and the accident. Robertson v. Scanio Produce & Institutional Foods, Inc., 449 So.2d 459 (La.1984); Bridgewater v. Crown Zellerbach, 449 So.2d 515 (La. App. 1st Cir.1984).

The trial court found that plaintiff "has established by a preponderance of the *442 evidence that he was actually injured in an accident while employed at Lallie Kemp Hospital; that the said accident occurred during the course and scope of his employment."

The factual findings of the district court as to work-related disability are entitled to great weight on appellate review and are not to be disturbed absent manifest error. Donald v. Big Three Industries, Inc., 426 So.2d 257 (La.App. 1st Cir.), writ denied, 429 So.2d 157 (La.1983); Lanieux v. Iberville Services, Inc., 391 So.2d 1282 (La. App. 1st Cir.), writ denied, 394 So.2d 1243 (La.1980).

After reviewing the record, we find no manifest error in the trial court's factual findings. The evidence amply supports the findings.

Keith testified that while at work, sometime during the month of September 1984, he was asked by the housekeeping supervisor to remove a drum of wax from the loading docks to a housekeeping storeroom. In the process of moving the drum, he slipped and fell on his buttocks. He felt pain when he fell, and he stayed sitting for a few minutes. A few weeks after the accident, he started having pain in his leg. The pain continued to worsen; therefore, on March 18, 1985, he sought Dr. Ferachi's help.

An eyewitness to the accident, Deloris McLain, testified that she did in fact witness the accident. She stated that plaintiff slipped when helping her move a fifty-five gallon drum of wax.

Keith's version of the accident was corroborated by the testimony of his wife. She stated that, on the evening of the accident, Keith told her of the accident. She also stated that, about two weeks after the accident, Keith started having pain in his leg. She further stated that she knew of no incident that happened between September of 1984 and March of 1985 that might have injured Keith's back other than the fall at the hospital.

Michael Wartberg and James Taylor, co-employees of Keith, testified that Keith told them of the accident. Wartberg testified that, when he relieved Keith on the evening of the accident, Keith told him about the accident. Keith told Wartberg that his back hurt when he fell. Wartberg further testified that when he next saw Keith, two weeks to a month after the accident, Keith looked like he was having trouble getting out of a chair.

Taylor testified that Keith told him of the accident when he relieved Keith, three days after the accident. He stated that Keith was complaining of back pain at that time.

Joseph Drago, an employee of the Hospital at the time of the accident and plaintiff's supervisor, testified that plaintiff did not report the accident to him, but he heard about it.

Dr. Fambrough, when questioned about the causal nexus between the accident and Keith's back operation and disability, responded as follows:

Three out of four discs are not precipitated by one traumatic episode. As a general rule the disc is worn out by the physiologic wear and tear of a long period of time, over a long period of time. He did give a history of having a couple of years history of lower back discomfort. Assuming he had the injury in September and acute exacerbation of discomfort, which persisted up until March then I think that you would assume that these were related.

The trial court's factual findings about the work-related injury and the causal nexus between the work-related injury and the disability are not manifestly erroneous.

These assignments of error are without merit.

EXTENT OF DISABILITY

(Assignment of Error Number 2)

Defendant asserts that the court erred in finding plaintiff to be totally disabled. The trial court found that plaintiff was totally disabled after March 18, 1985, but did not give reasons for this holding or quantify the disability as permanent or temporary.

*443

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Bluebook (online)
516 So. 2d 440, 1987 WL 1497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keith-v-office-of-risk-management-lactapp-1987.