Kelley v. Stone Container Corp.

734 So. 2d 848, 1999 La. App. LEXIS 1329, 1999 WL 274105
CourtLouisiana Court of Appeal
DecidedMay 5, 1999
Docket31790-WCA
StatusPublished
Cited by4 cases

This text of 734 So. 2d 848 (Kelley v. Stone Container Corp.) 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
Kelley v. Stone Container Corp., 734 So. 2d 848, 1999 La. App. LEXIS 1329, 1999 WL 274105 (La. Ct. App. 1999).

Opinion

734 So.2d 848 (1999)

Irma KELLEY, Plaintiff-Appellee,
v.
STONE CONTAINER CORPORATION, Defendant-Appellant,

No. 31790-WCA.

Court of Appeal of Louisiana, Second Circuit.

May 5, 1999.

*849 John C. Blake, Jonesboro, Counsel for Appellant.

Bobby Culpepper, Jonesboro, Counsel for Appellee.

Before BROWN, STEWART and DREW, JJ.

STEWART, J.

The sole issue presented in this appeal by Stone Container Corporation ("Stone") is whether the worker's compensation hearing officer ("WCHO") erred in finding that Irma Kelley proved, by a preponderance of the evidence, that she was injured in a work-related accident and suffered a disability entitling her to benefits. For the reasons discussed herein, we reverse the WCHO's ruling.

FACTS

Irma Kelley filed a disputed claim for worker's compensation benefits on September 18, 1996, alleging that she injured her back on September 28, 1995, while employed at Stone as the sixth hand on the Number 5 paper machine. Ms. Kelley claimed the injury occurred at approximately 2:30 p.m., when her back "gave way" while she was using a pry bar to separate two rolls of paper that were stuck together. According to Ms. Kelley, the incident occurred near the end of her shift and was not witnessed by co-employees. Ms. Kelley testified that she told a co-employee, Eddie Mills, that she injured her back. Mills denied that Ms. Kelley said anything to him about an injury. Although Ms. Kelly knew that Stone required its employees to report injuries to a supervisor, she did not report the injury. Ms. Kelley was able to complete her shift and none of her co-employees noticed anything suggesting that Ms. Kelly was injured or in pain.

Because of a long weekend, Ms. Kelley was not expected back at work until Monday night. Ms. Kelley testified that her injury worsened over the weekend. However, she was able to travel to Natchitoches *850 on Saturday with her husband, Steve Kelley. On Sunday, a second incident affecting Ms. Kelley's back occurred. While helping to care for her elderly parents, Ms. Kelley bent down to lift her father who had fallen in the bathtub. She testified that she did not lift him due to her back pain.

On Monday, October 2, 1995, Ms. Kelley sought relief from Dr. Jeff Brockman, a chiropractor. Medical records from Brockman Chiropractic Clinic indicate that Ms. Kelley was injured at work. Because the pain persisted, Ms. Kelley was unable to work Monday night as scheduled, so her husband called her supervisor, Tom Goss, to report that she would not be at work. Mr. Kelley told Goss that Ms. Kelley injured her back while lifting her father from the bathtub. The next day Ms. Kelley sought treatment from Dean L. Kirby, M.D., and thereafter, began physical therapy. Dr. Kirby's records indicate that Ms. Kelley developed back pain while lifting something at work and that her pain worsened when she attempted to lift her invalid father. Physical therapy records from October 3, 1995 indicate the same. Medical records also indicate that Ms. Kelley was treated for lumbar strain and sciatica in July 1995. Ms. Kelley explained that she injured her back in July 1995 while lifting a wheel barrel at work and that she did not report the injury.

After seeing Dr. Kirby, Ms. Kelley and her husband went to Stone and filed a claim with Aetna, the group insurer. The Kelleys claim that Mr. Kelley spoke with Theresa Boddie, a nurse employed by Stone, who told them that it was too late to file a worker's compensation claim and advised them to say that an accident occurred so that the group insurance would provide coverage. Theresa Boddie testified that the Kelleys came in together and asked for disability papers and a leave of absence form and that they never mentioned that Ms. Kelley was injured on the job. The claim form indicates that Ms. Kelley's injury is related to an accident, rather than to her employment; that the accident occurred on September 28, 1995; and that the accident occurred when she "picked up" her father out of the tub. Thereafter, Ms. Kelley began receiving weekly disability benefits in the amount of $175 from Aetna.

In November 1995, Ms. Kelley underwent a translaminar removal of a herniated nucleus pulposus at the L5-S1 level on the right. Approximately four months after sustaining the injury, the Kelleys contacted Stone about changing the group insurance claim to a worker's compensation claim. Marlene McConathy, a nurse employed by Stone, testified that Steve Kelley called on January 29, 1996, to request the claim change. According to McConathy, Mr. Kelley explained that bills were piling up and Aetna was not paying all of the bills and was not timely with the checks. Ms. Kelley testified that her main goal in changing the claim to worker's compensation was to get all of her hospital bills paid. On January 30, 1996, the Kelleys met with Charles Gilbert and Wade McBride, both supervisors at Stone, to discuss changing the claim. Ms. Kelley explained that she was actually injured at work and requested worker's compensation. She also expressed concern about her employment with Stone. No resolution was reached, and Ms. Kelley filed a claim for compensation in September 1996.

At the close of the hearing in March 1998, the WCHO ruled in Ms. Kelley's favor and awarded her temporary total disability benefits from September 28, 1995 through August 15, 1997, and ordered Stone to pay all outstanding medical bills and to reimburse Ms. Kelley for all medical expenses paid by her. Stone now appeals this ruling and urges that the WCHO erred in finding that Ms. Kelley carried her burden of proving that she was injured in an accident in the course and scope of her employment.

DISCUSSION

An employer is required to provide compensation to an employee injured in an *851 accident arising out of and in the course of his employment. La. R.S. 23:1031(A). An accident, for purposes of worker's compensation, is 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).

The burden is on the claimant in a worker's compensation action to establish the occurrence of a work-related accident by a preponderance of the evidence. The burden of proof is not relaxed despite liberal construction of the worker's compensation statute generally afforded the worker. Bruno v. Harbert International Inc., 593 So.2d 357 (La.1992); Sisk v. Martin Specialty Coatings, 28,592 (La.App. 2nd Cir. 8/21/96), 679 So.2d 569, review denied, 96-2328 (La.11/22/96), 683 So.2d 281. For the claimant to satisfy his burden, the testimony in its entirety must show that it is more probable than not that a work-related accident occurred and that the accident had a causal relation to the disability. Sisk v. Martin Specialty Coatings, supra. Where the evidence leaves the probabilities evenly balanced or shows only a possibility of a causative accident or leaves it to speculation or conjecture, then the claimants case must fail. Qualls v. Stone Container Corp., 29,794 (La.App. 2nd Cir. 9/24/97), 699 So.2d 1137, review denied, 97-2929 (La.2/6/98), 709 So.2d 736, reconsideration denied, 97-2929 (La.3/27/98), 716 So.2d 370; Sisk v. Martin Specialty Coatings, supra; Harris v. Halliburton Co., 501 So.2d 985 (La.App. 2nd Cir.1987).

In ruling on this matter, the WCHO found that the evidence set forth reasons to rule in favor of Ms.

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734 So. 2d 848, 1999 La. App. LEXIS 1329, 1999 WL 274105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-stone-container-corp-lactapp-1999.