Marange v. Custom Metal Fabricators, Inc.

75 So. 3d 990, 11 La.App. 3 Cir. 743, 2011 La. App. LEXIS 1309, 2011 WL 5172358
CourtLouisiana Court of Appeal
DecidedNovember 2, 2011
DocketNo. 11-743
StatusPublished
Cited by2 cases

This text of 75 So. 3d 990 (Marange v. Custom Metal Fabricators, Inc.) 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
Marange v. Custom Metal Fabricators, Inc., 75 So. 3d 990, 11 La.App. 3 Cir. 743, 2011 La. App. LEXIS 1309, 2011 WL 5172358 (La. Ct. App. 2011).

Opinion

THIBODEAUX, Chief Judge.

h Henry Marange Jr. appeals from a judgment by the office of Workers’ Compensation (OWC) denying him medical treatment, medical expenses, wage benefits, and penalties and attorney fees, for injuries sustained while employed with Custom Metal Fabricators, Inc. Finding that the OWC was manifestly erroneous in its decision to deny benefits, we reverse and render specific awards on each issue.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in failing to find that the [993]*993claimant sustained a work-related injury;
(2) whether the trial court manifestly erred in failing to find that the claimant was entitled to medical and wage benefits; and
(3) whether the trial court manifestly erred in failing to award penalties and attorney fees.

II.

FACTS AND PROCEDURAL HISTORY

Henry Marange, Jr., was employed as a welder by Custom Metal. On December 28, 2009, while grinding weld seams inside a cone-shaped section of a vessel, his foot slipped on grinding dust, and his body twisted to the left as he fell forward with the weight of the turning grinder and the force of forward motion. He felt burning and pulling in his low back and buttocks but continued to work without reporting the incident. At the morning break, he was called to the phone regarding a family emergency. He left work to assist with his invalid mother’s possible hospitalization, and he did not return to work for the remainder of the day.

|2The following morning, Mr. Marange awoke with burning and pulling in his low back and right leg and required assistance getting out of bed. He called Custom Metal around 7:00 a.m., reported the incident of the previous morning, and asked to be sent to a physician. The employee to whom he had spoken was Karen Porter, the company’s accountant. Ms. Porter called Mr. Marange back thirty minutes later to inform him that the owner of Custom Metal, Jimmy Cureton, would not pay for medical treatment because Mr. Marange did not report an accident. Mr. Marange went to the emergency room (ER) at West Calcasieu Cameron Hospital on his own. The medical record of that visit indicates that Mr. Marange had low back pain radiating into his right leg due to the previous day’s “injury on duty while using a grinder.”

In January 2010, Mr. Marange made two unanswered demands for medical treatment and workers’ compensation benefits and then filed a motion for medical treatment by Dr. Clark Gunderson. The OWC ordered a medical examination by Dr. Gunderson.

Dr. Gunderson found that Mr. Marange had developed sciatica related to the December 28, 2009 work injury and that he was temporarily totally disabled as a result. Dr. Gunderson prescribed physical therapy and ordered an MRI and a return visit. He noted that Mr. Marange had also received treatment at W.O. Moss Regional Medical Center for this injury.

Mr. Marange made a demand for payment of his medical bills and for the physical therapy and return visit ordered by Dr. Gunderson. Custom Metal has not authorized payment for this medical treatment.

Following the trial of this matter, the OWC found that Mr. Marange failed to carry his burden of establishing that he had sustained a work-related injury under Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992). Mr. Marange | Sappeals from that judgment seeking medical treatment, payment of his medical expenses, temporary total disability benefits, penalties, and attorney fees.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two [994]*994tiered test must be applied in order to reverse the findings of the trial court:

a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

IV.

LAW AND DISCUSSION

Mr. Marange’s accident was unwit-nessed. He stated that he was standing, grinding a weld seam at shoulder level, with his weight pushing on the grinder, and with his right foot propped on the cylinder wall. When his right foot slipped off the wall, where grinding dust had accumulated, his body twisted to the left with the grinder still turning, and he fell forward. He experienced burning and pulling in his low back and buttocks.

The workers’ compensation judge stated in her reasons for judgment that Mr. Mar-ange testified that he was grinding overhead, and that his assertions that he was grinding overhead did not comport with the testimony of fellow workers. She found that, under Bruno, 593 So.2d 357, the co-workers of Mr. Marange discredited or cast serious doubt on Mr. Marange’s version of the accident. The workers’ compensation judge cited Kyle Bourgeois, Custom Metal’s quality control manager, for his testimony that no one was expected to grind overhead and that he never saw Mr. Marange grinding at shoulder level or standing to grind. The workers’ compensation judge further cited the testimony of co-worker Mike Ellzey, who said that the grinders weighed only five to six pounds, that no grinding was done on the sides of the cylinder, and that he did not recall Mr. Marange standing to grind. Based upon this testimony, she found that Mr. Mar-ange failed to establish his case by a preponderance of the evidence. We disagree.

Our jurisprudence provides:

[A]s in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. [Prim v. City of Shreveport, 297 So.2d 421 (La.1974) ]; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. 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, 13 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; Nelson, [588 So.2d 350]. Corroboration may also be provided by medical evidence. West, [371 So.2d 1146].

Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992).

When there is proof of an attendant disability, without an intervening cause, it is presumed that the accident caused the disability. Additionally, the trier of fact’s determination as to whether a compensable injury was suffered is a question of fact and will not be disturbed unless manifestly erroneous or clearly wrong.

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75 So. 3d 990, 11 La.App. 3 Cir. 743, 2011 La. App. LEXIS 1309, 2011 WL 5172358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marange-v-custom-metal-fabricators-inc-lactapp-2011.