Nealy v. Great American Transportation Corp.

438 So. 2d 1132, 1983 La. App. LEXIS 9388
CourtLouisiana Court of Appeal
DecidedOctober 11, 1983
DocketNo. 82-CA-1005
StatusPublished

This text of 438 So. 2d 1132 (Nealy v. Great American Transportation 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
Nealy v. Great American Transportation Corp., 438 So. 2d 1132, 1983 La. App. LEXIS 9388 (La. Ct. App. 1983).

Opinion

EDWARDS, Judge.

Defendant, Great American Transportation Corporation (GATX), appeals a judgment awarding plaintiff, Warren L. Nealy, $183.00 in weekly workers compensation for temporary total disability, penalties and attorney fees. Plaintiff has neither answered defendant’s appeal nor perfected an independent appeal.

Defendant argues that the trial court committed manifest error (1) in finding that plaintiff proved the occurrence of a compensable accident, (2) in awarding benefits from the date of the alleged accident rather than from the date of the manifested disability, and (3) in awarding penalties and attorney fees. We affirm the compensation award and reverse the award of penalties and attorney fees.

On December 31, 1981, Nealy was working for GATX in Good Hope, Louisiana, as a manual laborer in a tank reconstruction project. He and the other members of the crew — J.W. Davis, foreman, Robin Davis, pusher, Bobby Sykes, another laborer, and an unidentified tractor operator — were loading a freshly cut bottom of an old tank onto a truck with a boom and a tractor. The boom malfunctioned briefly, and Nealy, Sykes and Robin Davis climbed up onto the tractor to repair it. The day was cold, and a misting rain had muddied the ground around the truck and made the tractor slippery. After repairing the boom, Nealy jumped from the tractor, allegedly slipped and fell into the mud and allegedly twisted his knee.

Nealy finished work that day and returned after the New Year’s holiday for two more days’ work on the 5th and 6th of January, 1982. He did not work for GATX again until February 1, 1982. During the three-week interim, he was “loaned out” to another job in St. James Parish. That work lasted about four days — the precise dates of this job are unclear. He was laid off for the rest of January. Nealy worked the full first week in February and the following Monday, the 8th. He stopped working after the 8th and was unemployed as of the date of trial.

Nealy consulted Dr. Gadeaux, a general practitioner, some three weeks after the alleged accident — again, the precise date of the meeting is unclear. Dr. Gadeaux referred him to Dr. Neil J. Maki, an orthopedic specialist with whom he consulted on February 12 after receiving written permission from his foreman, J.W. Davis.

Dr. Maki’s examination revealed a tear to the midjoint of plaintiff’s left knee. Nealy was hospitalized on February 23 and underwent surgery on the 24th. He was rehospi-talized on March 5th due to minor complications and released March 11th. His rehabilitation proceeded without mishap except for a fall on May 16th, which caused a minor setback. According to Dr. Maki’s progress report, dated June 29, 1982, plaintiff was able to return to work “on an as tolerated basis,” subject to further examination by his treating physician.

Trial took place on July 29, 1982. Without assigning reasons or making specific findings of facts, the trial court rendered judgment in favor of plaintiff as set out above, the award to continue until plaintiff can return to work. Implicit in the judgment, however, is the finding that plaintiff suffered temporary total disability from a work-related accident. Whether plaintiff carried his burden of proving the occur[1134]*1134rence of this accident is the primary issue on appeal.

Our constitutional authority to review findings of fact is limited by the standard of manifest error enunciated in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We cannot disturb a finding of fact when based upon a reasonable evaluation of credible evidence, sufficient to support a finding of the fact in issue, unless the record as a whole establishes that the finding is clearly wrong. Consequently, if Nealy’s proof of a compensable accident consists of sufficient and reasonably credible evidence, we cannot reverse the trial court’s finding absent manifest error.

Plaintiff’s proof that an accident occurred on December 31,1981, consisted solely of his own eyewitness testimony, corroborated by the testimonies of his wife, Debra, and his brother-in-law, Ed Ward. Nealy testified that he slipped or fell off the tractor and twisted his knee in the mud. He could not say with certainty that any member of the crew actually saw him fall. He testified that he did not report the fall immediately, but claimed that he told his foreman Davis about the fall later when Davis noticed him limping. He further claimed to have mentioned the incident to Ed Ward and Robin Davis later that day. He further testified that he did not ask to fill out an accident report because he didn’t think the injury to be that serious at the time. Finally, he testified that he continued to work until laid off, because he needed the money.

Ed Ward and Debra Nealy corroborated Nealy’s testimony. Debra testified that she applied ointments and salves to plaintiff’s knee when he returned home from work that day. Ed Ward testified that he noticed something was wrong with Nealy’s leg when he picked him up from work that afternoon. He testified that Nealy told him that he had been injured on the job. He further testified that he and Nealy usually did not bother with formal reports of which they considered to be only minor injuries.

Defendant’s proof that no accident occurred consisted of the testimonies of the foreman, J.W. Davis, the pusher, Robin Davis, and fellow laborer Bobby Sykes. The gist of Sykes’ and Robin Davis’ testimonies is that neither of them saw plaintiff fall from the tractor. Neither of them recalled seeing plaintiff limping nor remembered plaintiff’s mentioning to them anything about the accident until some time in February. Sykes testified that plaintiff told him some time in February that he was going to have surgery performed on his knee because of an injury on the job. Both testified that the weather conditions were cold and slippery.

J.W. Davis affirmatively testified that Nealy did not report the accident to him on December 31, 1982. He testified that he conducted mandatory weekly safety meetings in which he instructed all of the employees under his supervision to report any and all accidents however minor. He said he was first made aware of the accident on February 9th, as indicated in the accident report filled out and mailed to GATX on February 18, 1982. He further testified that he did not see plaintiff limping until some time in February, after plaintiff had been sent to the job in St. James Parish.

Cross-examination of each of the defendant’s witnesses revealed that all were unemployed at the time of trial, the tank reconstruction project having been completed the previous March. GATX had terminated J.W.’s employment because a previous accident in March of 1980, for which he had received a worker’s compensation settlement, had rendered him increasingly unable to function as a foreman. J.W. was negotiating with GATX at the time of trial to get his job back. He was only six years away from retirement. Cross-examination further revealed that Robin Davis was J.W.’s son. He was also looking to go back to work for GATX.

It appears that Nealy was the sole witness to the accident. However, his testimony alone is sufficient to establish the occurrence of an accident provided that his version of the event is not discredited by [1135]*1135other credible evidence in the record and his testimony is corroborated by the circumstances surrounding the event. See Johnson v. Louisiana State University, 417 So.2d 467, 470 (La.App. 1st Cir.1982); Williams v. Offshore Food Services, Inc., 417 So.2d 475, 478 (La.App.

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Related

Prim v. City of Shreveport
297 So. 2d 421 (Supreme Court of Louisiana, 1974)
Morgan v. Matlack, Inc.
366 So. 2d 1071 (Louisiana Court of Appeal, 1979)
Arceneaux v. Domingue
365 So. 2d 1330 (Supreme Court of Louisiana, 1978)
Crooks v. Belden Corporation
334 So. 2d 725 (Louisiana Court of Appeal, 1976)
Williams v. Offshore Food Service, Inc.
417 So. 2d 475 (Louisiana Court of Appeal, 1982)
Johnson v. Louisiana State University
417 So. 2d 467 (Louisiana Court of Appeal, 1982)

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438 So. 2d 1132, 1983 La. App. LEXIS 9388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nealy-v-great-american-transportation-corp-lactapp-1983.