Sisk v. Martin Specialty Coatings

679 So. 2d 569, 1996 La. App. LEXIS 1647, 1996 WL 474191
CourtLouisiana Court of Appeal
DecidedAugust 21, 1996
Docket28,592-CA
StatusPublished
Cited by7 cases

This text of 679 So. 2d 569 (Sisk v. Martin Specialty Coatings) 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
Sisk v. Martin Specialty Coatings, 679 So. 2d 569, 1996 La. App. LEXIS 1647, 1996 WL 474191 (La. Ct. App. 1996).

Opinion

679 So.2d 569 (1996)

Kevin M. SISK, Plaintiff-Appellee,
v.
MARTIN SPECIALTY COATINGS, Defendant-Appellant.

No. 28,592-CA.

Court of Appeal of Louisiana, Second Circuit.

August 21, 1996.
Writ Denied November 22, 1996.

*570 Eskridge E. Smith, Jr., Bossier City, for Appellant.

James D. Caldwell, Shreveport, for Appellee.

Before BROWN, GASKINS and CARAWAY, JJ.

*571 BROWN, Judge.

Defendants, Martin Specialty Coatings, Inc. ("Martin") and its insurer, Louisiana Commerce & Trade Association, appeal the decision of a workers' compensation hearing officer ("WCHO") which found that plaintiff, Kevin Sisk, was temporarily totally disabled by a workplace accident. We reverse.

FACTS

Kevin Sisk began working for Martin as a drywall finisher in October 1992. At the time he was hired, plaintiff informed his employer of previous back injuries which resulted in a disc fusion at the L5-S1 level in October 1991, and a discectomy in January 1992.

On Friday, July 2, 1993, plaintiff was working at a job site where he claims that he suffered sharp pain in his back followed by leg spasms while lifting two-by-twelve boards used to erect scaffolding. Plaintiff told a job foreman that his back hurt and performed lighter duties for the remainder of the day. When the pain failed to subside over the weekend, plaintiff visited an orthopedic specialist. On July 6, Dr. Don Joffrion concluded that plaintiff suffered from lumbar strain and advised him not to return to work until after a follow-up visit. At a scheduled appointment on July 12, Dr. Joffrion confirmed his diagnosis of lumbar strain and advised plaintiff that he could return to work on July 17.

After leaving Dr. Joffrion's office, plaintiff delivered a handwritten note to his employer stating that he had been injured in early 1993 while removing stilts worn to reach ceilings for the installation and finishing of sheetrock. The letter concluded with a request that compensation benefits be commenced as of July 12, 1993.

On July 16, Sisk visited Shreveport neurosurgeon Dr. Donald Smith. Dr. Smith concluded that plaintiff did not suffer from active radiculitis and listed his impression of plaintiff's complaints as "low back pain" and "post-operative status lumbar disc excision multiple." Dr. Smith did not admonish Sisk against working but merely suggested that he find some less strenuous form of labor.

Shortly after his visit with Dr. Smith, Sisk moved to his parents' home in Lawton, Oklahoma. Sisk gave a statement to an adjuster for Martin's compensation insurer, who then set up an appointment for Sisk to see an Oklahoma orthopedic specialist, Dr. J. Patrick Evans.

Sisk saw Dr. Evans on October 11, 1993 and related a history of two separate workplace accidents occurring when he removed his stilts in January and February of 1993. Sisk claimed to have worked in constant pain after these incidents until July when the pain became too great to bear. Sisk complained to Dr. Evans of neck and back pain, numbness in his legs and shoulders, occasional numbness in his arms, pain in both legs, and "needles" in his heels.

While noting his impression that Sisk's reported symptoms were related more to his prior injury and surgeries, Dr. Smith concluded that Sisk suffered from a soft-tissue injury with a rather mild strain of the lumbar spine. Based upon the history related by plaintiff, Dr. Smith concluded that Sisk had been temporarily totally disabled since July 6, 1993. Dr. Smith recommended MRI testing to determine whether there was any nerve compression.

On February 3, 1994, plaintiff underwent MRI testing which showed a bulging disc in his cervical spine at the C5-6 level which impinged upon the spinal cord. Sisk's cervical spine was straightened, suggesting the presence of muscle spasm. Plaintiff also had extensive scar formation at the L5-S1 level of his lumbar spine, with slight subluxation and a desiccated disc at this level.

Martin steadfastly refused to recognize the diagnosed disability as being the result of any workplace accident and refused to pay related benefits. Based on the totality of the evidence, the Workers' Compensation Hearing Officer concluded that Sisk proved that he had suffered a workplace injury on July 2, 1993 and that he had been temporarily totally disabled as a result. Weekly benefits of $266.67 were awarded, backdated to July 3, 1993, and continuing until a change occurs in Sisk's condition. Martin was ordered to pay all related medical expenses and was assessed *572 with statutory penalties of 12% on all sums due and attorney fees fixed at $7,500. Martin and its compensation insurer appeal asserting error in the hearing officer's findings and the award of benefits, penalties, and fees.

DISCUSSION

An employee is entitled to receive benefits for a personal injury by an accident arising out of and in the course of his employment. La.R.S. 23:1031. The term accident is defined as an unexpected or unforeseen 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).

Although procedural rules are construed liberally in favor of workers' compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. The testimony as a whole must show that more probable than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities evenly balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, plaintiff's case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Prim v. City of Shreveport, 297 So.2d 421 (La.1974).

A worker's testimony alone may be sufficient to discharge his burden of proof upon the satisfaction of two elements: (1) no other evidence discredits or casts serious doubts upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. In determining whether the worker has discharged his burden of proof, the hearing officer 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 v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979).

A hearing officer's conclusions as to whether the worker's testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review absent a showing of manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822 (La.App. 2d Cir. 1988), writ denied, 536 So.2d 1200 (La.1988). Where objective evidence so contradicts an employee's testimony, or the testimony is so internally inconsistent or implausible on its face that a reasonable fact finder would discredit the story, a reviewing court may well find manifest error or clear wrongness even in a credibility determination. Rosell v. ESCO, 549 So.2d 840 (La.1989).

With the foregoing legal precepts in mind, we consider the details surrounding plaintiff's claim. We begin with a review of the various versions of the purported accident.

In his form petition, plaintiff describes his accident as resulting from "carrying 2 × 12 scaffold board up 24 ft. extension ladder.

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Bluebook (online)
679 So. 2d 569, 1996 La. App. LEXIS 1647, 1996 WL 474191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sisk-v-martin-specialty-coatings-lactapp-1996.