Sears v. Berg Inc.

742 So. 2d 760, 1999 WL 766321
CourtLouisiana Court of Appeal
DecidedSeptember 28, 1999
Docket99-CA-457
StatusPublished
Cited by14 cases

This text of 742 So. 2d 760 (Sears v. Berg 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
Sears v. Berg Inc., 742 So. 2d 760, 1999 WL 766321 (La. Ct. App. 1999).

Opinion

742 So.2d 760 (1999)

Jeffrey P. SEARS
v.
BERG INCORPORATED and Zurich American Insurance Group.

No. 99-CA-457.

Court of Appeal of Louisiana, Fifth Circuit.

September 28, 1999.
Rehearing Denied October 25, 1999.

*762 Jeffrey C. Napolitano, Bradley P. Naccari, Juge, Napolitano, Guilbeau & Ruli, Metairie, Louisiana, Attorneys for Appellant Berg Incorporated and Zurich American Insurance Group.

Frank A. Bruno, New Orleans, Louisiana, Attorney for Appellee Jeffrey P, Sears.

Court panel composed of Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY and SUSAN M. CHEHARDY.

CHEHARDY, Judge.

In this workers' compensation matter, after trial, the hearing officer found that the claimant suffered a compensable work-related injury, awarded temporary total disability benefits, ordered the payment of all medical expenses, and assessed penalties and attorney's fees against defendants. For the following reasons, we affirm.

On August 3, 1998, the claimant, Jeffrey P. Sears, filed a disputed claim for compensation with the Office of Workers' Compensation against his employer, defendant, Berg, Inc. (hereafter Berg), and its insurer, defendant, Zurich-American Insurance Group (hereafter Zurich). Sears alleged that he suffered a compensable injury while in the course and scope of his employment with Berg, but that defendants refused to pay any benefits or authorize any medical treatment. The matter proceeded to trial before the Office of Workers' Compensation hearing officer on January 14, 1999.

On February 11, 1999, the hearing officer rendered judgment, finding that Sears suffered a compensable work-related injury, awarded temporary total disability benefits from June 7, 1998 (the date of the accident) through the date of judgment in the amount of $350.00 per week, ordered the payments of all of Sears' medical expenses, and found defendants arbitrary and capricious in their refusal to pay benefits, awarding penalties of $2,000.00 and attorney's fees of $3,000.00. The judgment also assessed all costs against defendants.

*763 Defendants have appealed, assigning four errors: the hearing officer was manifestly erroneous in finding that Sears suffered a work-related "accident" under La. R.S. 23:1021(1); the hearing officer was manifestly erroneous in failing to issue a credit for the portion of medical expenses paid through Sears' health insurance, the premiums for which are funded by Berg; the hearing officer was manifestly erroneous in finding that Sears was entitled to temporary total disability benefits when the hearing officer acknowledged that Sears had been released to light duty; and the hearing officer was manifestly erroneous in finding defendants arbitrary and capricious in failing to pay Sears benefits, and in awarding penalties and attorney's fees. Sears has answered the appeal, requesting additional penalties and attorney's fees for this appeal.

Mr. Sears testified at the January 14, 1999 trial that he began working for Berg in March of 1997 as a commercial air conditioning and heating service technician. Sears further testified that on Sunday, June 7, 1998, he was assigned to help clean a cooling tower at the Belle Promenade Shopping Mall on the Westbank of Jefferson Parish. Sears arrived at the job site at 6:00 a.m. with another worker, and prepared the site by setting up scaffolding and hauling all of the equipment they would need onto the scaffolding. Sears testified that the cooling tower was elevated approximately twelve feet off of the ground and stood another eight feet above that. Sears explained that commercial cooling towers require yearly cleaning, but that this one had not been cleaned in fourteen years.

Sears testified that he was assigned to clean the inside of the tower, which consisted of three cells, each accessible by a two by three foot door. Each cell has cross-sectional beams supporting large fans and motors, which prevented Sears from working upright. Sears testified that during the course of the twelve hours he worked that day, he spent the majority of it hunched over, pressure washing and scraping mud, debris and calcification off of the walls of each cell, then shoveling it out of each cell. Sears also testified that because the air conditioning had to be shut down to the mall while they cleaned the tower, he and his three co-workers worked at a very steady pace to try to complete the job in one day. Other than one five to ten minute break and a half hour lunch break, Sears worked constantly during the twelve hours he was on the job site. Sears further testified that because of the amount of mud and debris he had to clean and then shovel out of each cell in a hunched over position, as well as the virtual non-stop pace he worked, it was one of the most physically-demanding and strenuous jobs he had performed for Berg.

Sears testified that at the end of the day he was physically exhausted, "almost numb,"and that he showered and went straight to bed when he got home. The next morning, Sears' lower back was hurting, and he had "a feeling that I've [n]ever had before." Not wanting to miss work, Sears took some Tylenol and reported to work that day. At work, Sears reported his pain to one of his co-workers who was with him the day before, Richard Mussachia. Sears testified that he did not immediately report the accident to his supervisor because he does not like to complain and he hoped the pain would go away within a few days.

While Sears was able to complete his duties for the next few days, he continued to work in pain and take Tylenol, believing that he had a back strain. On Wednesday of that week, Sears began to notice some shooting pain down his right leg. By Thursday, Sears began taking Naprosyn, an anti-inflammatory, because the shooting pains were getting worse. Sears further testified that on Saturday morning, he awoke with such severe pain and numbness that his fiancee took him to the emergency room, where he was given an injection and prescription pain medication. The following Monday, Sears reported the *764 accident to his supervisor at Berg and saw his primary care physician, Dr. Dawn Puente, who ordered a CT scan of his lumbar spine and referred Sears to a neurosurgeon, Dr. Rand M. Voorhies. The CT scan revealed a ruptured disc at L5-S1, with a large disc fragment impinging upon the right L5 nerve root. On June 26, 1998, Dr. Voorhies performed spinal surgery in an attempt to alleviate Sears' pain and numbness.[1]

Sears testified that at the time of trial, although Dr. Voorhies had released him to light duty, he was still under Dr. Voorhies' care and had not been discharged. He continues to have lower back pain and numbness when he sits or stands for extended lengths of time and testified that he can no longer perform any of the duties he performed at Berg or any of his earlier jobs, which were all in the labor industry.

It is well settled that the claimant in a workers' compensation case has the burden of proving a work-related accident and resulting injury by a preponderance of the evidence. Bruno v. Harbert International, Inc., 593 So.2d 357 (La. 1992); Woods v. Ryan Chevrolet, Inc., 30,206 (La.App. 2 Cir.2/25/98), 709 So.2d 251, writ denied 98-1169 (La.6/5/98), 720 So.2d 689. The claimant's testimony may suffice to meet the burden, provided there is no other evidence sufficient to discredit or cast doubt upon the claimant's version of the incident, and his testimony is corroborated by circumstances following the accident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Bruno v. Harbert International, Inc., supra.

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Bluebook (online)
742 So. 2d 760, 1999 WL 766321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sears-v-berg-inc-lactapp-1999.