Spence v. Excelsior Endeavors & Development, Inc.

125 So. 3d 464, 2012 WL 8884362
CourtLouisiana Court of Appeal
DecidedOctober 17, 2012
DocketNo. 2012-CA-0616
StatusPublished

This text of 125 So. 3d 464 (Spence v. Excelsior Endeavors & Development, 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
Spence v. Excelsior Endeavors & Development, Inc., 125 So. 3d 464, 2012 WL 8884362 (La. Ct. App. 2012).

Opinion

EDWIN A. LOMBARD, Judge.

hThe defendants, Excelsior Endeavors and Development, Inc. and Louisiana Homebuilders Association, appeal the judgment of the Office of Workers’ Compensation granting the plaintiff, Shane Spence, his claim for benefits under the Louisiana Workers’ Compensation Act. The Workers’ Compensation Judge (the WCJ) ruled that the plaintiff had overcome the presumption of intoxication and that the plaintiff had not violated the provision [466]*466of La.Rev.Stat. 23:1208. After a thorough review of the record and evidence, we find that the WCJ’s findings are not manifestly eironeous. Accordingly, we affirm the judgment.

Relevant Facts and Procedural History

On July 1, 2011, the plaintiff sustained multiple severe injuries during the course and scope of his employment when he fell approximately thirty feet to the ground from a scaffold. At the time of the accident, the plaintiff was employed by Excelsior Endeavors and Development, Inc., a general contractor for the premises located at 924 Royal Street in New Orleans, Louisiana. Immediately after the ^accident, the plaintiff was transported to the hospital where a drug screening test was positive for Dihydroeodeine, Hydrocodone, and Oxycodone.

The plaintiff filed a claim for workers’ compensation benefits against his statutory employer, Excelsior Endeavors and Developments, Inc., and its insurer, Louisiana Homebuilders’ Association. The defendants denied his claim raising the defense of intoxication. After a hearing, the WCJ found that the plaintiff successfully rebutted the presumption of intoxication. The plaintiff was awarded temporary total disability benefits and medical expenses. The defendants appeal this decision of the WCJ.

Law and Discussion

On appeal, the defendant assigns as error: (1) the WCJ’s finding that the plaintiff carried his burden of proof to overcome the presumption of intoxication; and (2) the WCJ’s finding that the plaintiff did not violate the provisions of La.Rev.Stat. 23:1208.

Standard of Review

The appropriate standard of review to be applied by this court to the Office of Workers’ Compensation Judge’s findings of fact is the manifest error standard. Negri v. Authement Construction, Inc., 09-0584, p. 3 (La.App. 4 Cir. 10/14/09) 28 So.3d 1071, 1073; citing Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. Accordingly, we will not set aside the findings of the WCJ unless they are clearly wrong in light of the record viewed in its entirety. Id.

13Under the manifest error/clearly wrong standard of review, the appellate court need only determine whether - the factfinder’s conclusion was a reasonable one. Leeman v. Triple E Transport, Inc., 99-0229 (La.App. 4 Cir. 6/30/99) 744 So.2d 89, 91. Where two permissible views of the evidence exist, a factfinder’s choice between the two views can never be manifestly erroneous or clearly wrong. See Stobart v. State of Louisiana, Through Dep’t Of Transp. & Dev., 617 So.2d 880 (La.1993).

Applicable Law

Pursuant to Louisiana Revised Statute 23:1081(l)(b), an employee is not entitled to workers’ compensation benefits for an injury caused by the employee’s intoxication. La.Rev.Stat. 23:1081 presents two separate rebuttable presumptions that apply in intoxication cases. First, the employee is presumed to be intoxicated'if there was, at the time of the employee’s accident, evidence of either on-the-job or off-the-job use of a non-prescribed substance. La.Rev.Stat. 23:1081(5). Once the employer has proven that the employee was intoxicated, the second presumption arises, that such intoxication caused the accident. Id. At that point, the burden of proof shifts to the employee to prove that the intoxication was not a contributing cause of the accident. Id. If he does so, the intoxication defense of the employer is defeated.

[467]*467In their first assignment of error, the defendants contend that the WCJ erred in finding that the plaintiff carried his burden of proof to overcome the presumption of intoxication. The defendants established the plaintiffs intoxication by presumption, based on the positive drug screening results. Accordingly, the burden shifted to the plaintiff to show that his intoxication was not a contributing cause of his accident.

14At the hearing, the plaintiff testified that he had not taken any medication in the recent days before the accident. On the day of the accident, he was tasked with spraying the wall with water, which caused the scaffold to become wet and slippery over the course of the day. The plaintiff stated that prior to the accident, he ascended and descended the scaffold several times throughout the morning without incident. He was also able to comprehend and follow the instructions provided by his supervisor and did not receive any complaints that he was unable to perform his work.

The testimony of Wayne Aubert, the plaintiffs co-employee and immediate supervisor, was admitted by deposition at trial. Mr. Aubert testified that he was present at all times with the plaintiff on the morning of the accident. He stated that there was nothing to indicate to him that the plaintiff was under the influence of any drugs, as the plaintiff was alert and obeyed instructions.

Mercedes Whiteeloud, the owner of the building where the plaintiff and Mr. Au-bert were working, testified through her deposition testimony that she arrived at the site several times a day. She stated that she observed the plaintiff always performing the work as he was required to do and never showed any sign of impairment or any sign of improper judgment.

After considering the presented testimony, the WCJ stated that, “[i]t is the Court’s opinion that even though the drug screen showed positive, the actions of the employee before and after the accident had nothing to do with intoxication. Again, there exists no other evidence to remotely indicate intoxication was caused by or contributed to the horrific fall and injuries suffered by Spence [the plaintiff].” Thus, the WCJ found that that the plaintiff successfully met his burden in rebutting the presumption of intoxication.

|,Jn reviewing the facts found by the trial court, the appellate court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State of Louisiana, Through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Based upon this court’s review of the record, we find that the WCJ’s conclusion that the plaintiff’s alleged intoxication was not a contributing cause of his accident is supported by the record. Accordingly, we find that the WCJ did not commit manifest error in finding that the plaintiff successfully met his burden in rebutting the presumption of intoxication.

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Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Dean v. Southmark Const.
879 So. 2d 112 (Supreme Court of Louisiana, 2004)
Negri v. Authement Construction, Inc.
28 So. 3d 1071 (Louisiana Court of Appeal, 2009)
Hernandez v. Eskco, Inc.
773 So. 2d 865 (Louisiana Court of Appeal, 2000)
Bell v. Mid City Printers, Inc.
54 So. 3d 1226 (Louisiana Court of Appeal, 2010)
Stanich v. Canal Entertainment
26 So. 3d 269 (Louisiana Court of Appeal, 2009)
Leeman v. Triple E Transport, Inc.
744 So. 2d 89 (Louisiana Court of Appeal, 1999)

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125 So. 3d 464, 2012 WL 8884362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spence-v-excelsior-endeavors-development-inc-lactapp-2012.