Lavergne v. Lake Charles Memorial Hosp.

625 So. 2d 1098, 1993 La. App. LEXIS 2980, 1993 WL 394585
CourtLouisiana Court of Appeal
DecidedOctober 6, 1993
Docket92-1435
StatusPublished
Cited by7 cases

This text of 625 So. 2d 1098 (Lavergne v. Lake Charles Memorial Hosp.) 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
Lavergne v. Lake Charles Memorial Hosp., 625 So. 2d 1098, 1993 La. App. LEXIS 2980, 1993 WL 394585 (La. Ct. App. 1993).

Opinion

625 So.2d 1098 (1993)

Thelma LAVERGNE, Plaintiff-Appellee,
v.
LAKE CHARLES MEMORIAL HOSPITAL, Defendant-Appellant.

No. 92-1435.

Court of Appeal of Louisiana, Third Circuit.

October 6, 1993.

*1099 Robert Thomas Jacques Jr., Lake Charles, for plaintiff-appellee Thelma Lavergne.

Brian Lee Coody, Lake Charles, for defendant-appellant Lake Charles Memorial Hospital.

Before GUIDRY, THIBODEAUX and COOKS, JJ.

COOKS, Judge.

In this worker's compensation case, Thelma Lavergne (having a pre-existing back disorder) alleged she injured her lower back while lifting a chair during the course of her employment as a housekeeper with Lake Charles Memorial Hospital. Initially, the employer paid weekly benefits and medicals to Lavergne. However, it subsequently discontinued payment of all benefits on the ground that she refused to accept available employment, equal to or greater than her pre-injury wages, after achieving maximum medical recovery. Lavergne filed a claim with the Office of Worker's Compensation disputing the employer's decision to terminate benefits. The employer raised three defenses against Lavergne's claim contending: (1) At the time of initial employment she failed to disclose a known pre-existing back condition; (2) Her present condition did not result from an on the job accident; and (3) Her pre-injury medical status had been restored; thus, Lavergne's "continuing disability" was not connected to the alleged employment accident. After trial, the hearing officer rejected the employer's defenses and awarded Supplemental Earnings Benefits to Lavergne from the date the employer terminated payment of benefits.

Reviewing the record, we highlighted several inconsistencies in Lavergne's statements and marked in red her failure to disclose a pre-existing job related back condition. However, these notations on balance do not tip the "clearly wrong scale" in favor of reversal, particularly considering credibility evaluations are solely within the factfinder's province.

Lake Charles Memorial Hospital filed this appeal assigning the following errors for review:

"(1) The hearing officer erred in ruling that LSA-R.S. 23:1208 did not apply because Thelma Lavergne's `motive' for not disclosing her previous back problems was to obtain a job and not to obtain compensation benefits.
(2) The hearing officer erred in finding Thelma Lavergne proved by a preponderance *1100 of the evidence that an accident occurred while in the course and scope of employment and/or that said accident caused a disability.
(3) The hearing officer erred in finding that supplemental earnings benefits were due from January 11, 1991, when the hospital had made employment available to Thelma Lavergne which was within her capabilities."

FACTS

Thelma Lavergne began work with Lake Charles Memorial Hospital on January 20, 1987, as a housekeeper. She testified that while lifting a chair on March 19, 1987, she injured her lower back. Except for Lavergne's account, the incident was unwitnessed. She reported the accident immediately to her supervisor. As stated by Lavergne, despite the pain, she finished the work shift and arrived at work the following day. The next day an incident report was prepared and Lavergne sought medical treatment. Dr. William Foster determined immediate surgery was warranted to repair Lavergne's herniated disc. On April 2, 1987, he performed a semi-hemilaminectomy and discectomy at the L5-S1 level in Lavergne's back to repair the disc.

According to the record, Lavergne was involved in two work accidents while employed by Bertrand Trucking Service in 1981 and Louisiana Forest Products in 1982. She was examined and treated by Dr. Foster who determined, in 1984, that Lavergne suffered a herniated disc at the L5-S1 level. Dr. Foster felt surgery could be helpful; however, she declined to undergo the operation. Between 1982 and 1986 she worked with her husband hauling wood and junked automobiles. This work required heavy manual labor. Lavergne did not accurately complete Lake Charles Memorial Hospital's pre-employment application when first interviewed, failing to report any previous back problems.

STANDARD OF REVIEW

In worker's compensation cases, as in most civil cases, factual determinations of hearing officers are subject to the "manifest error/clearly wrong" standard of appellate review articulated in Rosell v. Esco, 549 So.2d 840 (La.1989), as follows:

"It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of `manifest error' or unless it is `clearly wrong,' and where 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. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973). See also, Sevier v. United States Fidelity & Guaranty Co., 497 So.2d 1380, 1383 (La.1986); West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979); Davis v. Owen, 368 So.2d 1052, 1056 (La.1979); Cadiere v. West Gibson Products Co., 364 So.2d 998, 999 (La. 1978); A. Tate, `Manifest Error' Further observations on appellate review of facts in Louisiana civil cases, 22 La.L.Rev. 605, 611 (1962). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Arceneaux, supra at 1333, Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985). In applying the manifestly erroneous—clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.2 See, F. Maraist, The Work of the Louisiana Appellate Courts for the 1978-1979 Term—A Faculty Symposium, Civil Procedure, 40 La.L.Rev. 761, 764 (1980); Comment, Appellate Review of Facts in Louisiana Civil Cases, 21 La.L.Rev. 402, 412 (1961); Cf: Anderson v. City of Bessemer *1101 City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969)."

As to the credibility of witnesses, which includes the claimant, Rosell makes clear "the manifest error—clearly wrong standard demands great deference to the trier of fact's findings; 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." Miles v. Perroncel, 598 So.2d 662 (La.App. 3rd Cir.1992).

APPLICABILITY OF LSA-R.S. 23:1208

At the time of the alleged employment accident, LSA-R.S. 23:1208 read:

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Bluebook (online)
625 So. 2d 1098, 1993 La. App. LEXIS 2980, 1993 WL 394585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lavergne-v-lake-charles-memorial-hosp-lactapp-1993.