Roy v. Hub City Paving Contractors

921 So. 2d 1215, 2006 La. App. LEXIS 141, 2006 WL 231661
CourtLouisiana Court of Appeal
DecidedFebruary 1, 2006
DocketNo. 05-831
StatusPublished

This text of 921 So. 2d 1215 (Roy v. Hub City Paving Contractors) 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
Roy v. Hub City Paving Contractors, 921 So. 2d 1215, 2006 La. App. LEXIS 141, 2006 WL 231661 (La. Ct. App. 2006).

Opinion

PICKETT, J.

LThe claimant, Joseph P. Roy, appeals a judgment of a Workers’ Compensation Judge (WCJ) dismissing his suit for benefits arising from an accident allegedly sustained in the course and scope of his employment with the defendant, Hub City Paving Contractors. We affirm the judgment of the WCJ.

FACTS

The claimant alleges that he injured his back in a work related accident on August 27, 2003. The alleged accident was unwit-nessed and the defendant claims that the claimant never reported an accident. The preceding is the sum of uncontested “facts” in the record pertaining to the occurrence of or absence of an accident. As our decision rests on the WCJ’s determination that the claimant failed to prove an accident, we pretermit any further discussion of the facts at this point and will proceed to our analysis of the WCJ’s decision.

LAW AND DISCUSSION

In Monceaux v. R & R Construction, 05-533, pp. 5-7 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, this court had the occasion to discuss both the standard of review and a claimant’s burden of proof in unwit-nessed workers’ compensation cases:

In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court discussed the standard of review in workers’ compensation cases:
In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. 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. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

Recently, this court addressed a claimant’s burden in proving the he/she suffered a work-related accident:

In order to recover workers’ compensation benefits, an injured employee must prove by a preponderance of the evidence that he suffered a “personal injury by accident arising out of and in the course of his employment.” [1217]*1217La.R.S. 23:1031(A). An “accident” is defined as an “unexpected or unfor-seen 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.R.S. 23:1021(1).
The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:
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 IsWorkers, spouses or friends. Malone & Johnson, supra; Nelson v. [Roadway Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.

In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

As stated in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted):

When findings are based on determinations regarding the credibility of witnesses, 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. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.
Bigge v. The Lemoine Co., 04-1191, pp. 3-4 (La.App. 3 Cir. 3/2/05), 896 So.2d 269, 271, 72.

In her written reasons for judgment, the WCJ summarized the testimony of the claimant, that of Mr. Ray Courville, the work-site supervisor, and that of Johnny Broussard, “a working co-owner of the [1218]*1218business ... [who] was intermittently on the job site.”

| ¿The WCJ noted a major inconsistency between the claimant’s deposition and trial testimonies: “At trial, Mr. Roy said he was injured while carrying the water pump while pumping out ditches to lay pipe. In his deposition Mr. Roy stated the accident occurred while he was carrying the generator to start up the machine Ray Courville was working on.”

Further, she commented that Mr. Cour-ville testified that the claimant had shown up on Monday morning, August 24, 2003, limping and that this had happened before. On those occasions, when questioned, he had explained that it was his arthritis acting up. In her reasons for judgment, the WCJ stated that Mr.

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Related

Bruno v. Harbert Intern. Inc.
593 So. 2d 357 (Supreme Court of Louisiana, 1992)
Dean v. Southmark Const.
879 So. 2d 112 (Supreme Court of Louisiana, 2004)
Alexander v. Pellerin Marble & Granite
630 So. 2d 706 (Supreme Court of Louisiana, 1994)
Holiday v. Borden Chemical
508 So. 2d 1381 (Supreme Court of Louisiana, 1987)
Robinson v. North American Salt Co.
865 So. 2d 98 (Louisiana Court of Appeal, 2003)
Monceaux v. R & R CONST., INC.
919 So. 2d 795 (Louisiana Court of Appeal, 2005)
Bigge v. the Lemoine Co.
896 So. 2d 269 (Louisiana Court of Appeal, 2005)
Brown v. Coastal Const. & Engineering, Inc.
704 So. 2d 8 (Louisiana Court of Appeal, 1997)
Nelson v. Roadway Exp., Inc.
588 So. 2d 350 (Supreme Court of Louisiana, 1991)
Gonzales v. Babco Farm, Inc.
535 So. 2d 822 (Louisiana Court of Appeal, 1988)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Winkler v. Wadleigh Offshore, Inc.
817 So. 2d 313 (Louisiana Court of Appeal, 2002)
Wright v. Skate Country, Inc.
734 So. 2d 874 (Louisiana Court of Appeal, 1999)
West v. Bayou Vista Manor, Inc.
371 So. 2d 1146 (Supreme Court of Louisiana, 1979)

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921 So. 2d 1215, 2006 La. App. LEXIS 141, 2006 WL 231661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roy-v-hub-city-paving-contractors-lactapp-2006.