Lepine v. Standard Gravel

137 So. 3d 36, 2013 La.App. 1 Cir. 0647, 2013 WL 6839353, 2013 La. App. LEXIS 2886
CourtLouisiana Court of Appeal
DecidedDecember 27, 2013
DocketNo. 2013 CA 0647
StatusPublished

This text of 137 So. 3d 36 (Lepine v. Standard Gravel) 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
Lepine v. Standard Gravel, 137 So. 3d 36, 2013 La.App. 1 Cir. 0647, 2013 WL 6839353, 2013 La. App. LEXIS 2886 (La. Ct. App. 2013).

Opinion

PETTIGREW, J.

|2In this workers’ compensation case, the claimant appeals a judgment of the Office of Workers’ Compensation (OWC). That judgment dismissed his claims, finding the claimant failed to bear his burden of proving the actual occurrence of either of two alleged injury-producing accidents during the course and scope of his employment with defendant, Standard Gravel Co., Inc. (Standard Gravel). After a thorough review of the record and for the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Claimant, Richard Lepine, Jr., worked as a dredge operator for Standard Gravel from February 2011 until December 7, 2011, when he was laid off due to a reduction in work force. Although the record before us contains only one of the 1008 disputed claim forms filed by Lepine, the record otherwise reveals that Lepine filed two disputed workers’ compensation claims listing two injury-producing work-related accidents — one allegedly occurring on November 8, 2011, and the other on December 7, 2011. The record also reveals that the two claims — docket numbers 12-01178 and 12-01179 — were consolidated by the workers’ compensation hearing officer by order dated June 26, 2012.

The disputed claim for compensation contained in the record before us was filed by Lepine on February 22, 2012, alleging that he suffered injury as a result of a work-related incident which occurred on November 8, 2011. In that claim, Lepine asserted that he was employed as a dredge operator for Standard Gravel in Washington Parish, when he was “[pjulling [a] cable out of a pond and injured [his] back.” According to his claim form, Le-pine reported the accident to his supervisor, James Bounds1, on the date of the accident. Also in that claim form, Lepine asserted he was treated for the injury sustained as a result of that accident at Slidell Memorial Hospital, at the Neuroscience and Pain Institute by Dr. Jonathan Thompson in Covington, and by Dr. Pedro Serrant in Slidell. Lepine alleged that defendants, Standard Gravel and, its insured, Liberty Mutual ^Insurance Company (Liberty Mutual), failed to pay wage benefits, refused to authorize an evaluation by his physician of choice, and failed to authorize any medical treatment. He further alleged that the defendants were arbitrary and capricious in their failures, entitling him to an additional award of attorney’s fees, penalties, and interest.

[38]*38The record does not contain a copy of, but refers to, the second disputed claim form that was filed by Lepine alleging the occurrence of a December 7, 2011 work-related incident that also resulted in injury. He claimed that while he was breaking down a pump, he was pulling on wrenches when he fell backwards onto his back, causing injury thereto. He, again, alleged that he reported the incident and injury to his supervisor, James Bounds, who, allegedly, then terminated his employment.

The defendants answered the claims, generally denying all allegations, except to admit that Lepine was employed by Standard Gravel at the time of the alleged accident, and that at that time, Standard Gravel’s workers’ compensation insurer was Liberty Mutual. Further answering, defendants asserted a dispute as to whether any accident even occurred, and in the alternative, only if an accident or accidents are proven to have occurred, the extent of any alleged work-related injury or any benefits that may be payable therefor.

A hearing was held on October 1, 2012, before the OWC, following which a judgment was rendered and signed on October 31, 2012, dismissing Lepine’s claims, finding he failed to carry his burden of proof that he suffered a work-related accident with injury within the course and scope of his employment on either of the dates alleged.

In reasons for judgment, the OWC noted that Lepine had no witnesses at trial to support his testimony that he suffered those two work-related accidents: “[Claimant has nothing but his own testimony that he suffered an accident on 12-7-2011.” Moreover, the OWC noted that the other witnesses, besides Lepine, disputed the occurrence of any accidents involving Lepine, and that defendants’ witnesses consistently testified that Lepine did not report any accident until after he was told he was being laid off. Based on those findings, the OWC concluded claimant failed to carry his burden of proof and dismissed his claims. This appeal by Le-pine followed.

14ASSIGNMENT OF ERROR

In his sole assignment of error, Lepine asserts the OWC erred in determining he did not “suffer a work-related injury,” which raised the issue of whether the OWC erred in concluding he did not present sufficient evidence “of an injury.” He also argues the OWC erred in not applying the presumption of causation. Notably, the claimant’s assignment of error, rather than addressing the finding on which the OWC’s judgment was based — that he failed to prove the accident occurred— instead, argues about causation; i.e., that the OWC found he did not prove an injury resulting from an accident, a finding the OWC did not need to reach, having found a failure to prove the occurrence of an accident.

Inasmuch as the OWC’s finding that there was no proof that any work-related accident occurred, we pretermit any analysis or discussion of causation and/or the existence of injury, we also pretermit Le-pine’s arguments concerning that nonissue, and instead, review the record to determine the propriety of the OWC’s findings regarding the occurrence of work-related accidents.

APPLICABLE LAW

In Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La.1/19/11), 56 So.3d 215, the supreme court summarized the law applicable to the factual scenario presented in this case as follows:

A worker in a compensation action must establish “personal injury by accident arising out of and in the course of his [39]*39employment.” La.Rev.Stat. 23:1031(A). An accident 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.Rev.Stat. 23:1021(1). As in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident. Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). An employee may prove by his or her testimony alone that an unwitnessed accident occurred in the course and scope of employment if the employee can satisfy two elements: (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 accident. Bruno v. Harbert International, Inc., supra, 593 So.2d [357] at 361 [(La.1992)] (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); |fiMalone and Johnson, 13 Civil Law Treatise, Workers’ Compensation, Section 253 (2d Ed.1980)), As we noted in Bruno, corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id.

56 So.3d at 218-19.

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Related

Prim v. City of Shreveport
297 So. 2d 421 (Supreme Court of Louisiana, 1974)
Arceneaux v. Domingue
365 So. 2d 1330 (Supreme Court of Louisiana, 1978)
Nelson v. Roadway Exp., Inc.
588 So. 2d 350 (Supreme Court of Louisiana, 1991)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
West v. Bayou Vista Manor, Inc.
371 So. 2d 1146 (Supreme Court of Louisiana, 1979)
Ardoin v. Firestone Polymers, L.L.C.
56 So. 3d 215 (Supreme Court of Louisiana, 2011)

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Bluebook (online)
137 So. 3d 36, 2013 La.App. 1 Cir. 0647, 2013 WL 6839353, 2013 La. App. LEXIS 2886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lepine-v-standard-gravel-lactapp-2013.