Sartelle v. Footlocker

996 So. 2d 1280, 2008 WL 4791911
CourtLouisiana Court of Appeal
DecidedNovember 5, 2008
DocketNo. 08-579
StatusPublished

This text of 996 So. 2d 1280 (Sartelle v. Footlocker) 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
Sartelle v. Footlocker, 996 So. 2d 1280, 2008 WL 4791911 (La. Ct. App. 2008).

Opinion

PAINTER, Judge.

Ixln this workers’ compensation suit, Defendant, Footlocker, appeals the award of benefits, penalties, and attorney’s fees to Plaintiff, Shane M. Sartelle,

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Sartelle, began employment with Footlocker in June of 2004. He was employed as an assistant manager with Footlocker on the date in question. Plaintiff alleges that on July 6, 2005, in the course and scope of his employment, he fell from a rolling ladder and struck a wall of shoes. The accident was unwitnessed. Plaintiff has not worked since the accident, with the exception of approximately five engagements with a musical band of which he was a member. Following a trial on the merits, Plaintiff was awarded benefits as well as a $2,000.00 penalty for failure to authorize treatment, a $2,000.00 penalty for failure to pay indemnity benefits, and $7,500.00 in attorney’s fees. Defendant appeals. Finding no manifest error in the judgment of the workers’ compensation judge, we affirm.

DISCUSSION

Defendant first alleges that the workers’ compensation judge erred in finding that Plaintiff met his burden of proving accident and injury. As to this issue, we stated in Phillips v. Coca-Cola Bottling Co. United, 06-323, pp. 4-5 (La.App. 3 Cir 9/27/06), 939 So.2d 673, 675-77 (alteration and emphasis in original):

This court, in Monceaux v. R & R Construction, Inc., 05-533 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, writs denied, 06-0585 (La.5/5/06), 927 So.2d 325, 06-0636 (La.5/5/06), 927 So.2d 317, had occasion to address both the standard of review and a claimant’s burden of proof in workers’ compensation cases involving unwitnessed accidents. In that case, we said:
In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court 12discussed 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).

[1283]*1283Recently, this court addressed claimant’s burden in proving the [sic] he/she suffered a work-related accident: cl

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.” La.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 lüfíndings 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 workers, 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).

In this case, the workers’ compensation judge made a determination that Plaintiff was “extremely credible.” Defendant alleges that this finding is manifestly erroneous in light of evidence of Plaintiff’s admitted drug use and the fact that he was twenty-five years old at the time of trial but could not remember most details of his life. We find Defendant’s argument to be without merit. Plaintiff testified that he was climbing up the ladder to get a shoe from the opposite side of the wall when the ladder slid and he slid down the ladder, landing on both feet and hitting the wall 14behind him with his back. A co-worker, Corey Hite, testified in deposition that he heard the noise and asked Plaintiff if he was okay. Plaintiff did not report the incident immediately because, according to Plaintiff, his supervisor was on vacation. However, he reported the incident a week later.

After examining the record, we cannot say that the workers’ compensation judge was manifestly erroneous in her conclusion that Plaintiff proved the occurrence of a work-related accident. Although unwit-nessed, Plaintiff testified to its occurrence and the onset of pain. We find, as did the [1284]*1284workers’ compensation judge, that the inconsistencies pointed out by Defendant do not rise to the level of “serious doubt.” The workers’ compensation judge made credibility determinations in favor of Plaintiff, which we find no reason to disturb, and we uphold the finding of a work-related accident.

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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)
Mouton v. Walgreen Co.
981 So. 2d 75 (Louisiana Court of Appeal, 2008)
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)
Humphrey v. Icee Distributors
944 So. 2d 783 (Louisiana Court of Appeal, 2006)
Robinson v. North American Salt Co.
865 So. 2d 98 (Louisiana Court of Appeal, 2003)
Phillips v. Coca-Cola Bottling Co. United
939 So. 2d 673 (Louisiana Court of Appeal, 2006)
Monceaux v. R & R CONST., INC.
919 So. 2d 795 (Louisiana Court of Appeal, 2005)
Smith v. Town of Olla
966 So. 2d 1165 (Louisiana Court of Appeal, 2007)
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)
Baker v. Conagra Broiler Co.
640 So. 2d 494 (Louisiana Court of Appeal, 1994)
Winkler v. Wadleigh Offshore, Inc.
817 So. 2d 313 (Louisiana Court of Appeal, 2002)
Tate v. Cabot Corp.
824 So. 2d 456 (Louisiana Court of Appeal, 2002)
Wright v. Skate Country, Inc.
734 So. 2d 874 (Louisiana Court of Appeal, 1999)
Wyble v. Acadiana Preparatory School
956 So. 2d 722 (Louisiana Court of Appeal, 2007)
Frederick v. Port Aggregates, Inc.
968 So. 2d 1169 (Louisiana Court of Appeal, 2007)
West v. Bayou Vista Manor, Inc.
371 So. 2d 1146 (Supreme Court of Louisiana, 1979)

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Bluebook (online)
996 So. 2d 1280, 2008 WL 4791911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sartelle-v-footlocker-lactapp-2008.