Kennedy v. Camellia Garden Manor

838 So. 2d 99, 2002 La.App. 3 Cir. 1027, 2003 La. App. LEXIS 247, 2003 WL 246062
CourtLouisiana Court of Appeal
DecidedFebruary 5, 2003
DocketNo. 02-1027
StatusPublished
Cited by3 cases

This text of 838 So. 2d 99 (Kennedy v. Camellia Garden Manor) 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
Kennedy v. Camellia Garden Manor, 838 So. 2d 99, 2002 La.App. 3 Cir. 1027, 2003 La. App. LEXIS 247, 2003 WL 246062 (La. Ct. App. 2003).

Opinion

LGREMILLION, Judge.

The defendant nursing home, Camellia Garden Manor, appeals the judgment of the workers’ compensation judge in favor of the plaintiff, Herman Kennedy, finding that he suffered injuries as a result of a work-related accident and that the level of marijuana in his system did not contribute to the accident. For the following reasons, we affirm.

FACTS

Kennedy began working as an orderly for Camellia Garden on June 1, 2001. On June 27, 2001, he suffered an alleged injury to his lower back while attempting to pull a struggling quadriplegic resident back into a whirlpool chair. As a result of this injury, Kennedy suffered a bulging disc at L5-S1 with L5 radiculopathy, but his referral for a neurosurgical evaluation was denied by Camellia Garden. A post-accident urine test was positive for marijuana. Camellia Garden terminated Kennedy on August 9, 2001, because he failed a mandatory criminal background check.

On September 10, 2001, Kennedy filed a disputed claim for compensation against Camellia Garden alleging its failure to pay him workers’ compensation benefits and its refusal to authorize medical treatment. Camellia Garden answered this claim alleging that Kennedy’s claim for workers’ compensation benefits was barred because he had tested positive for marijuana use, which created a presumption that he was intoxicated at the time of the accident.

[101]*101This matter proceeded to a trial on the merits to determine whether Kennedy had suffered a work-related accident and whether the presence of marijuana |¡,in his system contributed to the cause of the accident. At the close of evidence, the workers’ compensation judge issued oral reasons finding that Kennedy was injured as a result of a work-related accident and that he had overcome the presumption that his intoxication was the cause of the accident. Judgment was rendered in this matter by the workers’ compensation judge on May 28, 2002. This appeal by Camellia Garden followed.

ISSUES

Camellia Garden raises three assignments of error on appeal. Basically, it argues that the workers’ compensation judge erred in finding Kennedy credible in proving that he was injured as a result of a work-related accident and that he rebutted the presumption that his intoxication was a cause in fact of his accident.

STANDARD OF REVIEW

The standard of review applied in workers’ compensation matters is set out in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 | aSo.2d 1106, 1112 (La.1990).

WORK-RELATED ACCIDENT

In order to receive workers’ compensation benefits, a worker must first establish, by a preponderance of the evidence, “personal injury by accident arising out of and in course of his employment.” La.R.S. 23:1031(A). As stated in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992):

A worker’s testimony alone may be sufficient to discharge this burden of proof, 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. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, IS Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Malone & Johnson, supra; Nelsonfv. Roadway Express, Inc.], supra [588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.
[102]*102In 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.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La. 1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the workers has discharged his or her burden of proof are factual determinations not to be disturbed or reviewed unless clearly wrong or absent a showing of manifest error. Gonzales v. Babeo Farms[Farm], Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

Kennedy testified that he had just removed a quadriplegic resident from the whirlpool, when he noticed that the resident, Arthur Lee, was starting to slip out of the low-backed whirlpool chair. He stated that he tried to pull Lee back up into the chair, but that Lee started struggling. He testified that the more he pulled, the more Lee struggled. Kennedy stated that he finally received help from two nurses |4assistants, Mary Leach and Maude Stephens. After getting Lee back into the chair, he testified that he felt a sharp pain and a burning in his lower back. Although he did not tell Leach or Stephens that his back hurt, he stated that it began hurting worse about forty-five minutes later. He stated that he told Barbara Jones, an LPN, that his back was hurting and she gave him three Tylenols. About an hour and a half later, Kennedy testified that he went to the medicine room and ran into Judy Langston, the director of nurses, and someone named Jennifer. He stated that he told Jennifer that he hurt his back while helping Lee, and that she gave him some Motrin for his pain. Kennedy stated that he finished his last two hours that day. However, he testified that he was unable to work the next day because of pain.

On July 29, 2001, Kennedy stated that he was only able to work about twenty-five minutes due to pain in his lower back. He stated that he told the nurse that his back was still hurting, and she told him to go home and to see a doctor. He testified that he then went home and stayed in bed until about 6:00 p.m., at which time he went to the emergency room at Rapides General Hospital. The emergency room records state that Kennedy complained of lower back pain at work two days ago.

Kennedy was examined by Dr. Robert Smith on July 30, 2001, who diagnosed him as suffering from non-specific low back pain with L5 radiculopathy secondary to lifting.

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838 So. 2d 99, 2002 La.App. 3 Cir. 1027, 2003 La. App. LEXIS 247, 2003 WL 246062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-camellia-garden-manor-lactapp-2003.