Weaver v. Harmony Construction Co.

602 So. 2d 138, 1992 La. App. LEXIS 1841, 1992 WL 135076
CourtLouisiana Court of Appeal
DecidedJune 18, 1992
DocketNo. 92-CA-0015
StatusPublished
Cited by1 cases

This text of 602 So. 2d 138 (Weaver v. Harmony Construction 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
Weaver v. Harmony Construction Co., 602 So. 2d 138, 1992 La. App. LEXIS 1841, 1992 WL 135076 (La. Ct. App. 1992).

Opinion

WALTZER, Judge.

This is an appeal from a March 14, 1992 judgment of the Office of Workers’ Compensation granted in favor of the claimant, John P. Weaver, and against the Employer, Harmony Construction Co. The hearing officer found the claimant to be temporarily, totally disabled and ordered defendant to pay claimant past due temporary total disability worker’s compensation benefits from March 1, 1990, the date on which defendant terminated payment, through the present at a rate of $276.00 per week with interest on the past due installments from the due date until paid. The judgment further provided that defendant was ordered to pay temporary total disability compensation at a rate of $276.00 per week into the future as long as claimant is disabled, past and future medicals, and an expert witness fee of $500.00. Claims for penalties and attorneys fees were denied.

The hearing officer provided the following reasons for judgment.

This is a typical compensation case. There is a split in the medical. Dr. Robert Fleming testified that the claimant is suffering from a disabling injury, spon-dylolitis, which was caused or contributed to by the accident and that he is still temporarily disabled. The defendant produced four doctors who testified that the plaintiff was not disabled. With this split in the medical, it became necessary to resort to the lay evidence. The plaintiff and his wife testified. The Hearing Officer observed very closely their testimony and their demeanor on the witness stand to determine whether they were lying. Their demeanor and testimony convinced the Hearing Officer that the plaintiff was telling the truth when he said that he could not return to work because of pain. He tried to return to work once but was unable to do so. At the time of the accident claimant was making about $480.00 per week. His rate of compensation was $276.00 per week. He has received no compensation since March 1, 1990. He has never been in a previous accident or made a previous claim for compensation or injury, and, despite a rather harassing cross-examination the Hearing Officer was convinced by the preponderance of the evidence that he was telling the truth.

On appeal, the employer-appellant raises the following specifications of error:

1. The hearing officer erred in finding that plaintiff’s spondylosis was an “injury” caused or contributed to by a work related accident.
2. The hearing officer was wrong in finding that plaintiff’s testimony that he could not work was credible.
3. The hearing officer was wrong in finding that plaintiff sustained his burden of proof that he was disabled from doing any work.
4. The hearing officer erred in not requiring plaintiff to prove his case by clear and convincing evidence as required by R.S. 23:1221 as amended in 1990.
5. The hearing officer erred in finding plaintiff temporarily and totally disabled after March 1, 1990.

Assignment of Error #1

Harmony complains that the hearing officer erred in finding that plaintiff’s spondylosis was an “injury” caused or contributed to by a work related accident. Claimant, a 26 year old male was lining a flange on a piece of pipe, when some hot water fell on the plaintiff. In order to avoid being scalded, the worker jumped out of the way, became unstable and struck his chest on a pipe and then was thrown off balance, slipping a distance of 4-5 feet, struck his chest on a flange, and then fell on the scaffolding below.

Unbeknownst to the claimant he had a misalignment of the spine at the L5 on SI with slippage which had become symptomatic due to the accident on September 12, 1989. Employer-appellant did not dispute that this accident occurred in the course and scope of claimant’s employment as a pipefitter. In fact, the employer stipulated employment status, work-relatedness of [140]*140the accident and that the accident was not the result of any misconduct on claimant’s part which would have prevented him from claiming worker’s compensation benefits. It is a general rule that a plaintiff is to be taken as found, and if he has a preexisting condition that is aggravated by the accident then the defendant is responsible for that consequence. The plaintiff suffered from an asymptomatic birth or developmental defect. The accident caused the defect to become symptomatic. In George v. Marcantel Feed Stores, Inc., 434 So.2d 440, (La.App.3rd, 1983) the Louisiana Third Circuit found that an asymptomatic spondoly-sis made symptomatic by a work related accident was a work related injury entitling claimant to compensation. This assignment of error lacks merit.

Assignment of Error #2 and #3

Defendant asserts that Weaver’s testimony concerning his inability to work should have been rejected by the hearing officer. Additionally, defendant complains that claimant did not meet the burden of proof that he was disabled from doing any work. Both of these specifications of error involve questions of credibility.

On appeal, the standard of appellate review in workmen’s compensation cases was discussed in Behmke v. K-Mart Corp., 581 So.2d 291, 293 (La.App. 5th, 1991) in which the court stated:

“It is settled law in this State that a ‘reviewing court must give great weight to the factual conclusions arrived at by the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable.’ (citations omitted). A plaintiff’s uncontradicted evidence of pain can support a finding of substantial and appreciable pain. In evaluating evidence, a trier of fact should accept as true the uncontradicted testimony of a plaintiff witness absent a sound reason for its rejection and these factual findings are to be given great weight (citations omitted). Whether an employee’s pain is substantial enough to render him disabled within the meaning of the worker’s compensation law is a question of fact to be determined by the trier of fact (citation omitted). In evaluating evidence, a trier of fact should accept as true the uncontradicted testimony of a plaintiff witness absent a sound reason for its rejection and these factual findings are to be given great weight.”

The hearing officer specifically states in his reasons for judgment:

“Their demeanor and testimony convinced the Hearing Officer that plaintiff was telling the truth when he said that he could not return to work because of pain.”

Defendant points to the finding of four defense doctors who determined that the plaintiff could return to light duty, whereas the plaintiff’s treating physician consistently found that the plaintiff could not return to work. Because plaintiff drove or was driven some 190 miles from Alabama while allegedly in pain in order to see his treating physician in New Orleans, defendant reasons that Weaver was in reality able to work and faking his symptoms. Three of the four defense doctors each saw the plaintiff only once for evaluation; the fourth doctor saw the plaintiff twice for evaluation. In contrast, Dr. Robert Fleming was plaintiff’s treating physician and followed his case from its inception. But for two visits to Dr. Nelms in Mobile, Alabama, Dr. Fleming treated plaintiff continuously.

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Bluebook (online)
602 So. 2d 138, 1992 La. App. LEXIS 1841, 1992 WL 135076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-harmony-construction-co-lactapp-1992.