Walter Banks v. Blocker Co.

877 So. 2d 190, 2004 La. App. LEXIS 1569, 2004 WL 1394921
CourtLouisiana Court of Appeal
DecidedJune 23, 2004
DocketNo. 38,607-WCA
StatusPublished

This text of 877 So. 2d 190 (Walter Banks v. Blocker Co.) 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
Walter Banks v. Blocker Co., 877 So. 2d 190, 2004 La. App. LEXIS 1569, 2004 WL 1394921 (La. Ct. App. 2004).

Opinion

LOLLEY, J.

After a fall at work, Walter Banks (“Banks”) sought workers’ compensation benefits, penalties and attorney fees. The Office of Workers’ Compensation, District [192]*1921W (the “OWC”), the Hon. Larry Butler presiding, denied his claim, and Banks now appeals. For the following reasons, we affirm.

Facts

Banks, a laborer in Homer, Louisiana, has worked for various employers around Homer in the wood products and petroleum industries. In September 2002, Banks went to work for the Blocker Company (“Blocker”), in a job which he described as “labor, toting cement and stuff like that. What they needed.” Banks was hired for Blocker by J.T. Grieder (“Grieder”), Banks’ cousin and supervisor on the job. On October 24, 2002, Banks, who was 44 years old at the time, was working for Blocker on the roof of a church in Bossier City when he tripped and fell. Banks fell backwards but did not fall off of the roof. On January 27, 2003, Banks filed a Disputed Claim for Compensation with the OWC in connection with that accident, and the matter proceeded to trial on September 2, 2003.

At the trial, Banks testified that as a result of the workplace accident, he suffered an injury and was disabled. However, Grieder, who was standing next to Banks at the time and saw the accident happen, testified that Banks said that he was not hurt and declined to be taken to the doctor, saying “I’m all right.”

Banks worked the rest of the day on the job but never returned to work for Blocker after that day, claiming that he became more sore later on |athe day of the accident. He also described that he obtained a pain pill from another employee, took another pain pill that night, and continued self-medicating with his wife’s prescription pain medications. Banks said that the next day, he saw Grieder at a store and told him that he had not returned to work because he had injured himself. Grieder denied that this happened.

On October 28, 2002, Banks went to the emergency room at Homer Hospital complaining of pain in his back and both shoulders, which he attributed to his fall at work. An x-ray of his back revealed “Mild lumbar spondylosis. No acute abnormality.” The emergency room report noted back spasms in the cervical and lumbar areas. The emergency-room physician diagnosed Banks with “(1) lumbar strain (2) myoligamentous pain (3) shoulders,” and prescribed medication. Banks was told -to seek further attention if he did not improve.

Banks testified that he called Blocker after the emergency room visit and got the company to pay for the prescriptions, and he claimed the Blocker representative told him to call back for approval of further treatment. He testified that he subsequently made an appointment with a physician but that he never heard from Blocker about authorizing this appointment.

Banks saw Dr. Larry C. Croxton, a chiropractor, on November 7, 2002, with continuing complaints of back and shoulder pain and an additional complaint of leg pain. Including that visit, Dr. Croxton treated Banks nine times during approximately the next month. Dr. Croxton’s notes [ .^indicate that Banks received some temporary relief from his complaints of pain from the treatment. However, on December 5, 2002, Dr. Croxton wrote a “to whom it may concern” letter for Banks, stating that he should be excused from work due to a work-related injury. On December 12, 2002, the doctor suggested further evaluation of Banks’ condition. Banks claims that he was unable to get Blocker to authorize any further treatment.

At the time of the trial, Banks said that he continued to have pain in his back and in his legs, and he would not be able to [193]*193return to work with the pain. His wife, Casandra Banks, testified that he never complained of any type of back problems prior to the accident.

After hearing the testimony and considering the other evidence, the OWC rejected Banks’ claim for compensation. Although the court found that Banks did suffer a fall at work, the court concluded that Banks had not suffered a compensa-ble injury. A judgment was entered dismissing Banks’ claims, and he now appeals.

Discussion

In Banks’ first assignment of error, he argues that the trial court erred in failing to find that he was disabled as a result of his on-the-job injury. Specifically, Banks claims that his disability was established by his and his wife’s testimony, as well as the objective medical evidence presented at trial.

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. La. R.S. 23:1031. The injured employee bears the initial burden of establishing the causal | connection between the disability and the employment accident by a reasonable preponderance of the evidence. The claimant is not required to establish the exact cause of the disability, but the claimant must demonstrate by a preponderance of proof that the accident had a causal connection with the disability. Proof by a preponderance of the evidence exists when the evidence, taken as a whole, shows the facts sought to be proved are more probable than not. Thompson v. Dillard’s Dept. Store, 32, 974 (La.App.2d Cir.05/10/00), 759 So.2d 1074.

The causal connection can be established when the employee proves that before the accident he was in good health, but commencing with the accident, symptoms of the disabling condition appeared and sufficient medical evidence exists to show a reasonable possibility of a causal connection between the accident and the disabling condition. Harris v. Casino Magic, 38,137 (La.App.2d Cir.01/28/04), 865 So.2d 301, writ denied, 2004-0502 (La.04/08/04), 870 So.2d 275. However, an employee’s pre-existing condition does not disqualify his claim if the work-related injury either aggravated or combined with the infirmity to produce the disability for which compensation is claimed. Id. When the claimant proves that he had no disabling symptoms before the accident, but that commencing with the accident, the disabling symptoms appeared, and there is medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition, a claimant’s work injury is presumed to have aggravated a pre-exist-ing infirmity to produce his disability. Id.

| sWhether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Harris v. Coushatta Indus. Sand, Inc., 31,977 (La.App.2d Cir.06/16/99), 741 So.2d 143. Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Chaisson v. Cajun Bag & Supply Co., 1997-1225 (La.03/04/98), 708 So.2d 375. In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Id. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. “Thus, ‘if the [factfin-der’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if [194]*194convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Id., citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551.

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Related

Harris v. Coushatta Indus. Sand, Inc.
741 So. 2d 143 (Louisiana Court of Appeal, 1999)
Chaisson v. Cajun Bag & Supply Co.
708 So. 2d 375 (Supreme Court of Louisiana, 1998)
Harris v. Casino Magic
865 So. 2d 301 (Louisiana Court of Appeal, 2004)
Banks v. Indus. Roofing & Sheet Metal
696 So. 2d 551 (Supreme Court of Louisiana, 1997)
Thompson v. Dillard's Dept. Store
759 So. 2d 1074 (Louisiana Court of Appeal, 2000)

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Bluebook (online)
877 So. 2d 190, 2004 La. App. LEXIS 1569, 2004 WL 1394921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walter-banks-v-blocker-co-lactapp-2004.