Temple v. Global Construction

119 So. 3d 704, 13 La.App. 5 Cir. 38, 2013 WL 2249191, 2013 La. App. LEXIS 1032
CourtLouisiana Court of Appeal
DecidedMay 23, 2013
DocketNo. 13-CA-38
StatusPublished
Cited by1 cases

This text of 119 So. 3d 704 (Temple v. Global Construction) 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
Temple v. Global Construction, 119 So. 3d 704, 13 La.App. 5 Cir. 38, 2013 WL 2249191, 2013 La. App. LEXIS 1032 (La. Ct. App. 2013).

Opinion

MARC E. JOHNSON, Judge.

12Pefendants/Appellants, Global Construction and its compensation carrier, Louisiana Commerce & Trade Association-Self Insurer’s Fund, (hereinafter collectively referred to as “Global”), appeal the workers’ compensation judge’s findings and awards in favor of Plaintiff/Appellee, Kerwinn Temple, from the Office of Workers’ Compensation, District “7”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The following pertinent facts are adduced from the pleadings and record.

Mr. Temple was an employee of Global on February 26, 2011. Global provided labor in converting the Mandeville Street Wharf to a tourism facility. While working in the early morning hours, Mr. Temple fell or stepped off of a “pick board” or concrete support underneath the wharf, while accessing a concrete pier support. Mr. Temple injured his left elbow and his back in the fall. Craig Rink, Mr. Temple’s supervisor, took Mr. Temple to the hospital after the fall.

| oOn July 8, 2011, Mr. Temple filed his Disputed Claim for Compensation. In the claim, Mr. Temple alleged he injured his back and left elbow “while trying to secure roofing.” Mr. Temple verified that no wage benefits had been paid to him and no medical treatment was authorized by his employer. In his amended claim filed on July 18, 2011, Mr. Temple provided that he injured his left elbow, low back, neck, left hip and left leg on cement piling while walking down a pick board.

The trial on the merits was held on September 7, 2012, and the record was left open until September 27, 2012 for post-trial submissions. In her judgment rendered on October 23, 2012, the trial judge ordered Global to pay Mr. Temple temporary total disability benefits in the amount of $579.00 per week, retroactive to February 26, 2011 through the date of judgment, for a total of $49,794.00 together with legal interest; Global was ordered to continue to pay Mr. Temple temporary total disability benefits until modification; Global was given a credit of $384.00 for past indemnity paid; Global was ordered to pay Mr. Temple’s medical expenses and was ordered to approve and pay for recommended injections; Global’s La. R.S. 23:1208 and 1208.1 claims were denied; and Global was ordered to pay Mr. Temple $8,000.00 in penalties and $10,000.00 in attorney fees pursuant to La. R.S. 23:1201(1).

The instant appeal followed that judgment.

ASSIGNMENTS OF ERROR

On appeal, Global raises the following assignments of error: 1) the workers’ compensation judge erred as a matter of law by not correctly applying the burden that Mr. Temple had to prove immediate objective findings that the workplace accident produced the alleged injury; and 2) the workers’ compensation judge erred as a matter of law by summarily awarding penalties and attorney fees pursuant to La. R.S. 23:1201(1).

FLAW AND ANALYSIS

Burden of Proof

Global alleges the trial judge did not apply the correct legal standard in [707]*707concluding that Mr. Temple proved entitlement to workers’ compensation benefits and failing to cite La. R.S. 23:1021(1). Global argues that Mr. Temple failed to prove any immediate objective medical findings of his injuries, despite the fact that Mr. Temple injured himself during a fall on concrete. Global contends that an objective medical finding of a bruise or a mark of some type on Mr. Temple’s back should have been visible during his first couple of medical examinations, especially during his first emergency room visit. Global further contends the only positive objective medical finding for Mr. Temple was an MRI performed on April 14, 2011, which showed a pre-existing degenerative finding that pre-dated Mr. Temple’s February 26, 2011 fall and does not show impingement that would account for Mr. Temple’s subjective complaints. As such, Global concludes that Mr. Temple failed to prove a back injury as required by La. R.S. 23:1021(1).

Conversely, Mr. Temple argues the trial judge properly applied the correct legal standard in that objective medical findings are cited throughout the Written Reasons. Mr. Temple asserts the record supports the trial judge’s findings in that every single doctor that he has seen since his February 26, 2011 workplace accident has opined that he injured his back on the date in question. Additionally, Mr. Temple asserts that no medical evidence was presented to indicate that he suffered from a pre-existing back condition prior to his workplace accident. Furthermore, Mr. Temple notes that in order for him to be entitled to receive workers’ compensation benefits, he only needed to prove by a preponderance of the evidence that a work-related accident occurred and that an injury was sustained. Mr. Temple contends that he sufficiently discharged his burden.

Is An employee seeking workers’ compensation benefits must prove “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A). The Louisiana Workers’ Compensation Act defines an accident 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). Where the employee is able to identify an event marking the time the injury occurred or the symptoms arose or suddenly or markedly increased in severity, even if such event occurs during the performance of customary or routine work activities, the employee has established an “accident” within the meaning of La. R.S. 23:1021(1). Begue v. Crossover, Inc., 03-267 (La.App. 1 Cir. 11/21/03); 868 So.2d 100, 105.

The employee in a workers’ compensation action has the burden of proving a work-related accident by a preponderance of the evidence. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La.7/2/12); 93 So.3d 1253, 1257. An employee may prove that an unwitnessed accident occurred in the course and scope of his employment by his testimony alone if the employee can prove (1) no other evidence discredits or easts 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. Id. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 10-245 (La.1/19/11); 56 So.3d 215, 219.

In determining whether a worker has discharged his burden of proof, the [708]*708fact-finder “should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent ‘circumstances casting suspicion on the reliability of Ifithis testimony.’ ” Marange, supra. The fact-finder’s determination as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are factual determinations that should not be disturbed on appellate review, unless clearly wrong or manifestly erroneous. Marange, 11-2678; 93 So.3d at 1257-58. If the trial court’s findings are reasonable in light of the entirety of the record, the appellate court may not reverse. Ricks v. Odyssey Health Care, 10-1099 (La.App. 5 Cir. 10/25/11); 77 So.3d 386, 389. Consequently, when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Id.

In the present case, Mr.

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119 So. 3d 704, 13 La.App. 5 Cir. 38, 2013 WL 2249191, 2013 La. App. LEXIS 1032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/temple-v-global-construction-lactapp-2013.