Rainwater v. TANGO TRANSPORT

32 So. 3d 1174, 2010 La. App. LEXIS 323, 2010 WL 798045
CourtLouisiana Court of Appeal
DecidedMarch 10, 2010
Docket45,041-WCA
StatusPublished
Cited by2 cases

This text of 32 So. 3d 1174 (Rainwater v. TANGO TRANSPORT) 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
Rainwater v. TANGO TRANSPORT, 32 So. 3d 1174, 2010 La. App. LEXIS 323, 2010 WL 798045 (La. Ct. App. 2010).

Opinion

LOLLEY, J.

| ,In this workers’ compensation claim, defendants, Tango Transport (“Tango”) and its workers’ compensation insurance carrier, Liberty Mutual, appeal the decision of the Office of Workers Compensation, First District East, Parish of Ouachi-ta, State of Louisiana, which found in favor of claimant, Kerry Rainwater. For the following reasons, we affirm.

FACTS

Claimant-appellee, Kerry Rainwater, worked for appellant, Tango, as a long-haul eighteen-wheeler truck driver beginning in August 2007. On January 29, 2008, Rainwater picked up a load of steel bars in Gary, Indiana to take to Laredo, Texas. Because of the wintry conditions, he covered the load with a tarp to protect it from the weather. Outside of Gary, Indiana, the tarp came off the load and Rainwater had to “re-tarp” the load which took close to 45 minutes to complete. According to Rainwater, his hands started to hurt due to the weather exposure. Since his hands still hurt the next day, Rainwater went to Provena Medical Center in Urbana, Illinois. The doctors diagnosed the condition as “pre-frostbite” and Rainwater was told not to work “with [his] hands for two days.” Despite this, Rainwater completed the trip and returned home to Monroe, Louisiana. Rainwater filed a Disputed Claim for Compensation on April 9, 2008.

After a hearing, the Workers’ Compensation Judge (“WCJ”) found that a 12work-related accident occurred; ordered retroactive payment of Total Temporary Disability (“TTD”) benefits from January 29, 2008, through February 2009; and, awarded Supplement Earnings Benefits (“SEBs”) thereafter. The WCJ also found that Rainwater was entitled to medical treatment for his hands. The WCJ awarded penalties in the amount of $2,000.00 for failure to provide medical treatment and $2,000.00 for failure to pay indemnity benefits and attorney’s fees in the amount of $10,000.00. This appeal ensued.

LAW AND DISCUSSION

Work-Related Accident

Factual findings in a workers’ compensation cases are subject to manifest error. Seal v. Gaylord Corp., 1997-0688 (La.12/02/97), 704 So.2d 1161. 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. Stobart v. State through Dept. of Tramp, and Devel *1177 opment, 617 So.2d 880 (La.1993). A plaintiff in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Graham v. Nissan, 89,656 (La. App. 2d Cir.06/29/05), 907 So.2d 213.

The worker’s testimony alone may be sufficient to satisfy this burden, | ¡¡provided that two elements are satisfied: first, there must be no other evidence which discredits or casts serious doubt on the worker’s version of the incident; and, second, the worker’s testimony must be corroborated by the testimony of fellow workers, his spouse and other close family members, friends, or the introduction of medical evidence. Kidd v. Brown Radiator & Frame, 38,729 (La.App. 2d Cir.12/22/04), 890 So.2d 796, writ denied, 2005-0172 (La.03/24/05), 896 So.2d 1042.

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La. App. 2d Cir.04/07/04), 870 So.2d 515. Furthermore, the question of whether a claimant is entitled to compensation benefits is also a question of fact, and a WCJ’s determination may not be disturbed on appeal absent manifest error. Jones v. Hollywood Casino Shreveport, 42,819 (La.App. 2d Cir.12/05/07), 972 So.2d 1189.

According to Tango, Rainwater never reported any accident or injury to Tango, nor did he submit any medical bills to his employer or his employer’s workers’ compensation carrier. Tango further contends that the only evidence of a work-related accident is the claimant’s own testimony which is contradicted in several instances. We disagree.

| .[The record reflects that Rainwater testified that while in Laredo, Texas, he called a Tango dispatcher, whom he thought was Enrique Gonzales, to ask for assistance in taking off the tarp on his truck. Rainwater further explained that instead of making the delivery to the customer, he went to Tango’s yard, located in Laredo, for assistance from Tango personnel to help remove the tarps. Tango did not present evidence to refute the actual call to the dispatcher or the stop made at the yard. Tango does assert that Enrique Gonzales, whom Rainwater specifically identified, had been terminated from Tango a month earlier and could not have been the dispatcher-this is not dispositive. 1 We find, as the WCJ did, that Rainwater’s testimony was credible. In addition to his testimony, the medical reports from Prove-na Medical Center in Urbana, Illinois corroborate the date of admittance and the diagnosis of “pre-frostbite.” Finally, the termination papers clearly stated:

“driver got frostbite on previous load while tarping. Has not gotten released from doctor and has exceeded days out. Driver was working with risk management and HR to resolve issue.”

This evidence, arguably, rises to the level of an admission by Tango in that the “frostbite” was work-related and the company was on notice. Accordingly, we do |snot find that the WCJ was manifestly erroneous in finding that Rainwater’s injury was compensable.

Tango makes much of the fact that Rainwater submitted his bills to his personal health insurer, not Tango or Liberty Mutual. Rainwater explained his valid reasons, namely that he had already been denied coverage by Tango, e.g. the emer *1178 gency room bills had not been paid, and he needed to mitigate his situation. Again, we do not find Tango’s argument persuasive.

Medical and Compensation Benefits

Rainwater was awarded medical treatment related to his frostbite. Rainwater’s physicians clearly attribute the current limited use of his hands to the frostbite. Tango failed to provide evidence to the contrary. Based on the finding that there was a work-related injury and that Tango was aware of the issue, we agree that Rainwater is entitled to pursue further treatment he was erroneously denied. Furthermore, because he was physically unable to engage in any employment for a period of time, we agree that Rainwater is entitled to TTD benefits beginning January 29, 2008, through the time he found other employment. La. R.S. 23:1221(l)(c).

As a result of the limited use of his hands, Rainwater found employment elsewhere since he did not feel comfortable or safe driving an eighteen-wheeler on Lthe road. SEBs are to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. La. R.S. 23:1221(3)(a).

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Bluebook (online)
32 So. 3d 1174, 2010 La. App. LEXIS 323, 2010 WL 798045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rainwater-v-tango-transport-lactapp-2010.