Thibodeaux v. Sewerage & Water Board of New Orleans

812 So. 2d 843, 2001 La.App. 4 Cir. 0713, 2002 La. App. LEXIS 642, 2002 WL 363388
CourtLouisiana Court of Appeal
DecidedMarch 6, 2002
DocketNo. 2001-CA-0713
StatusPublished
Cited by2 cases

This text of 812 So. 2d 843 (Thibodeaux v. Sewerage & Water Board of New Orleans) 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
Thibodeaux v. Sewerage & Water Board of New Orleans, 812 So. 2d 843, 2001 La.App. 4 Cir. 0713, 2002 La. App. LEXIS 642, 2002 WL 363388 (La. Ct. App. 2002).

Opinion

JjWILLIAM H. BYRNES, III, Chief Judge.

The claimant, Darryl Thibodeaux, appeals a workers’ compensation judgment that found that Thibodeaux had not carried his burden of proof that he suffered from a low back disability due to the work-related accident. We affirm.

On July 8, 1998, Darryl Thibodeaux, an employee of the Sewerage and Water Board of New Orleans (“S & WB”), was a passenger in a S & WB pickup truck that was struck in the rear by another vehicle. The accident occurred while Thibodeaux was working in the course and scope of his employment. An hour after the accident Thibodeaux refused to be drug tested. After a hearing, Thibodeaux chose to enter a rehabilitation program rather than be terminated; however, he failed to enter a rehabilitation program.

On July 13, 1998, Thibodeaux was treated for headaches at the New Orleans East branch of Ochsner Clinic. At that time, he did not report the accident or injury from the accident. On July 16, 1998, Thibo-deaux returned to the clinic without an appointment and complained of increased headache pain and back pain. On July 20, 1998, Thibodeaux first complained of injury from the accident. | ¿Thibodeaux did not report an injury to his supervisors during the weeks after the accident.

On July 28, 1998, Thibodeaux filed a petition for workers’ compensation benefits. After a trial on June 29, 2000, the workers’ compensation judgment found that the “Claimant has not carried his burden of proof that he suffers from a low back disability due to the [July 8, 1998] work-related accident.” Further, the judgment held that the “Claimant has not carried his burden of proof that he cannot return to his prior employment due to any work-related disability.” The workers’ compensation judge found that Thibodeaux “has carried his burden of proof that the work-related accident aggravated his headaches.” The judgment provided that Thi-bodeaux “is entitled to all necessary and reasonable medical expenses for those headaches.” The workers’ compensation judge held that “Claimant has not carried his burden of proof that he is entitled to any indemnity benefits,” and that “Defendant has reasonably controverted all appropriate issues.” The judgment also stated that “The refusal of the drug testing does not bar this claimant from receiving workers compensation.” Costs were as[845]*845sessed against the defendant, S & WB. Thibodeaux’s appeal followed.

On appeal, Thibodeaux contends that the workers’ compensation judge erred in finding that he had not carried his burden of proof that: (1) he suffered from a low back disability due to the work-related accident; (2) he cannot return to his prior employment due to any work-related disability; and (3) he is entitled to any |3mdemnity benefits. Thibodeaux also claims that the workers’ compensation judge erred in finding that the S & WB reasonably controverted all appropriate issues.

La. R.S. 23:2031 provides compensation if an employee sustains personal injury as the result of an accident arising out of and in the course of employment. Daspit v. Southern Eagle Sales & Services, Inc., 98-1685 (La.App. 4 Cir. 1/20/99), 726 So.2d 1079. To recover workers’ compensation benefits, an employee must show that he received a personal injury by an accident arising out of and in the course and scope of his employment, and that his injury necessitated medical treatment or rendered the employee disabled, or both. Haws v. Professional Sewer Rehabilitation, Inc. 98-2846 (La.App. 1 Cir. 2/18/00), 763 So.2d 683. The claimant has the burden of proof to establish a work-related injury by a preponderance of the evidence. Daspit, supra. Claimants in a workers’ compensation proceeding have the initial burden of proof as to causation. Dean v. K-Mart Corp., 97-2850 (La.App. 4 Cir. 7/29/98), 720 So.2d 349, writ denied 98-2314 (La.11/13/98), 731 So.2d 265. The workers’ compensation claimant must prove by a preponderance of the evidence that an employment accident had a causal relationship to the disability; if the testimony leaves the probabilities evenly balanced, the claimant has failed to carry the burden of persuasion. Harvey v. Bogalusa Concrete, Inc., 97-2945 (La.App. 1 Cir. 9/25/98), 719 So.2d 1130. Once the injured employee carries his initial burden of proving a causal connection between the accident and his disabling condition, the burden shifts to the employer to produce evidence that it is more probable than not that the injury was not caused [4by a work related accident. Burrell v. Evans Industries, 99-1194 (La.App. 5 Cir. 4/25/00), 761 So.2d 618, writ denied 2000-1493 (La.6/30/00), 766 So.2d 545.

The appellate court’s review of the findings of fact is governed by the manifest error or clearly erroneous standard in a workers’ compensation case. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825 (La.1987).

At issue in the present case is whether the claimant showed that the accident caused the claimant’s back injury. The claimant did not report a back injury on the day of the accident. He returned to work the next day. Lawrence Brue, his co-employee testified that after the accident, Thibodeaux and Brue went to the jobsite and assisted in laying out fire-type hoses and rolling up hoses. The work required stooping and bending. Brue stated that Thibodeaux did not complain of pain or appear to be injured on that date. That day, Thibodeaux did not claim that he was injured when he met with his supervisor, Harry Head, to discuss not returning to work when he refused to be tested for substance abuse.

The Ochsner medical records show that prior to the accident, Thibodeaux saw Dr. William R. Brandon on May 29, 1998, com[846]*846plaining of headaches. After the accident, Thibodeaux went to Ochsner Clinic to complain about headaches that had been “cross his forehead for several months.” Norflex was prescribed with Fiorcet, which previously had been prescribed for his treatment for headeaches.

|,/Thibodeaux stated that his back pain started a couple of days after the accident. The first clinical notation of his back pain was on July 20, 1998. On November 25, 1998, Dr. Brandon noted that when he saw Thibodeaux on July 20, 1998, the doctor did not say Thibodeaux was disabled, and Dr. Brandon opined that Thibodeaux should have returned to work before August 31,1998.

Dr. Robert L. Mimeles, Orthopedic Consultant, Occupational Health Center, examined Thibodeaux on February 11, 1999. He noted that if Thibodeaux suffered a soft tissue injury, it would have resolved on the date of his February 11 examination. According to Dr. Mimeles’s report of February 18, 1999, the MRI was unremarkable and showed no structural or mechanical problems. Dr. Mimeles found that Thibodeaux could engage in gainful employment.

Dr. Fritz Fidele, a chiropractor, noted in his January 21, 1999 report that he examined Thibodeaux at the Plaza Medical Center. He found that Thibodeaux had an acute, moderate lumbosacral strain, low back pain and spinal biomechanical dysfunction. Dr. Fidele signed a disability certificate on August 31, 1998 that stated that Thiboeaux had been under his care and was totally incapacitated from August 31, 1998 until further notice. Dr. Fidele referred Thibodeaux to an orthopedist.

On September 7, 1999, Dr.

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812 So. 2d 843, 2001 La.App. 4 Cir. 0713, 2002 La. App. LEXIS 642, 2002 WL 363388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibodeaux-v-sewerage-water-board-of-new-orleans-lactapp-2002.