Kathy Tucker v. Security Industrial

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1011

KATHY TUCKER

VERSUS

SECURITY INDUSTRIAL INSURANCE

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 01-01537
CHARLOTTE L. BUSHNELL, WORKERS COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Michael G. Sullivan, Judges.

AFFIRMED.

H. Douglas Hunter
Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P.
Post Office Drawer 1329
Opelousas, LA 70571-1329
(337) 948-8201
COUNSEL FOR DEFENDANT/APPELLANT:
Security Industrial Insurance

Erin M. Alley
Baggett, McCall, Burgess, Watson & Gaughan
Post Office Drawer 7820
Lake Charles, LA 70606-7820
(337) 478-8888
COUNSEL FOR PLAINTIFF/APPELLEE:
Kathy Tucker

AMY, Judge.

In this workers’ compensation matter, the employee filed a disputed claim,

contesting the termination of her medical benefits. The workers’ compensation judge

determined that the employee-claimant did not meet the burden of proof of entitlement

to such benefits. The written reasons for judgment submitted in the matter were not

in conformity with the oral reasons as stated by the workers’ compensation judge, and

the employee-claimant moved for a new trial in order that the written judgment might

be amended. The motion was granted, and the workers’ compensation judge’s new

written ruling stated that the employee-claimant had sustained a work-related injury

and was entitled to medical benefits but was not entitled to disability benefits. The

employer filed the instant appeal. For the following reasons, we affirm.

Factual and Procedural Background

Kathy Tucker, the claimant herein, was employed as a debit agent by Security

Industrial Insurance. One of a debit agent’s duties, among other things, was to collect

premiums from clients, which would often take place at clients’ homes in the

evenings. On or around August 25, 1998, Ms. Tucker was collecting a premium

payment at the home of a client who owned what was described as a very mean,

territorial poodle. The record reflects that the client knew that Ms. Tucker was afraid

of the dog; as such, it was not allowed to come into the house while Ms. Tucker was

there. Upon the conclusion of business on this particular occasion, the client heard a

door close. According to her testimony at the disputed-claim hearing in the matter,

the client was under the impression that Ms. Tucker had gone, so she let the dog into

the house. However, Ms. Tucker testified that she had not yet left the house and that

it was actually the client’s husband who had closed a door. Ms. Tucker recalled that

she became extremely frightened when she realized that the dog was indoors. She

testified that she turned and ran for her car, twisting something in the process. She

noted that upon sitting in the driver’s seat, she experienced a burning, stabbing pain

in her back and buttocks.

Two weeks later, on September 8, 1998, Ms. Tucker visited her family

physician, complaining of back pain. On September 12 or 13, 1998, Ms. Tucker first

mentioned the incident to a secretary in Security Industrial’s office and then to her

supervisor, who instructed her to file a report with the district manager. The secretary

testified at the disputed-claim hearing that company policy required that all accident

reports were to be filed with the district manager immediately after the accident. Ms.

Tucker reported the injury accordingly and ceased working for Security Industrial

shortly thereafter. In April 1999, Ms. Tucker underwent back surgery, and in May

2002, surgery was performed on her neck.

Meanwhile, in November 2000, Ms. Tucker and her brother opened Pocket

Money, a payday-loan business in Lake Charles. Ms. Tucker testified at the disputed-

claim hearing that she did not manage or work in the business; although she would

frequently remain at the store during operating hours at first, she would only write

checks and pay the bills. Because of the severity of Ms. Tucker’s persistent back pain

and discomfort, her father brought a recliner for her to use while she was at the store,

and Ms. Tucker testified that she spent most of her time sitting in the recliner, visiting

with her employees.

Security Industrial paid Ms. Tucker’s workers’ compensation benefits from the

time her injury was reported until February 1, 2001. The record indicates that the

claims adjuster assigned to Ms. Tucker’s case learned of Pocket Money’s existence,

and she initiated surveillance of Ms. Tucker’s activities. Video surveillance tapes

made on four consecutive days in January 2001 showed Ms. Tucker unlocking Pocket

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Money’s doors in the morning and locking them at night. The claims adjuster testified

at the disputed-claim hearing that, in her opinion, the content of the tapes indicated

that Ms. Tucker was able to work and that she had engaged in fraud for the purpose

of obtaining workers’ compensation benefits, a violation of La.R.S. 23:1208, noting

that she had not reported any earnings for January 2001. The claims adjuster

terminated Ms. Tucker’s benefits accordingly.

Ms. Tucker filed a disputed claim against Security Industrial on March 6, 2001,

contending that her benefits had been wrongfully terminated and that her

recommended pain-management treatment had not been authorized. Security

Industrial answered, arguing that Ms. Tucker did not sustain a work-related accident

and that even if she had, she forfeited her right to such benefits when she did not claim

income from working at Pocket Money and when she settled a third-party action

without Security Industrial’s written consent.

The matter proceeded to hearing on October 14, 2002. In her oral reasons for

ruling, the workers’ compensation judge concluded that the evidence presented was

equally balanced in favor of both the claimant and the employer, and, consequently,

Ms. Tucker did not meet the requisite burden of proving that her benefits were

arbitrarily discontinued or that she was entitled to temporary or permanent disability

benefits. The workers’ compensation judge further noted that, although Ms. Tucker

was present at Pocket Money, her actions did not rise to the level of fraud that would

warrant termination of benefits pursuant to La.R.S. 23:1208. However, the record

reflects that the written ruling submitted by the employer and signed by the workers’

compensation judge on October 18, 2002, was not in conformity with the oral reasons

issued in the matter. Instead, the written ruling states, inter alia, that Ms. Tucker did

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not prove that she sustained a work-related accident and, therefore, was not entitled

to benefits.

Ms. Tucker filed a motion for new trial, seeking an amendment of the workers’

compensation judge’s written ruling to accurately reflect the rationale stated in the

oral reasons. In this motion, Ms. Tucker noted that the workers’ compensation judge

had not ruled that she did not suffer a work-related accident, as stated in the written

ruling. The motion for new trial was granted on February 20, 2003. The workers’

compensation judge issued new written reasons for judgment on April 3, 2003, which

stated that Ms. Tucker had suffered a work-related accident but was not entitled to

disability benefits.

The employer appeals, asserting that the workers’ compensation judge erred in

granting the employee’s motion for new trial and in finding that the employee

sustained a work-related accident.

Discussion

Security Industrial’s argument on appeal is best addressed as two separate parts:

first, that the workers’ compensation judge abused her discretion in granting Ms.

Tucker’s motion for new trial; and second, that the workers’ compensation judge erred

in determining that Ms. Tucker sustained a work-related accident. Accordingly, we

examine these arguments in turn.

Motion for New Trial

Security Industrial contends on appeal that the workers’ compensation judge

abused her discretion in granting Ms. Tucker’s motion for a new trial. It argues that

the record supports the original judgment issued in this matter—namely, that Ms.

Tucker failed to prove by a preponderance of the evidence that an at-work accident

occurred.

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If a written judgment does not conform to the oral reasons issued by a judge,

there are three ways by which the error may be remedied: first, by a timely

application for a new trial; second, by a petition for nullity; and third, by a timely

appeal. Francis v. Lafon Nursing Home of the Holy Family, 02-1863 (La.App. 4 Cir.

3/19/03), 840 So.2d 1281, writ denied, 03-1373 (La. 9/19/03), 853 So.2d 643. In light

of the vast discretion afforded trial courts in determining whether to grant a party’s

motion for new trial, appellate courts, in reviewing such determinations, will not

disturb the trial court’s actions absent an abuse of discretion. Davis v. Wal-Mart

Stores, Inc., 00-0445 (La. 11/28/00), 774 So.2d 84.

Upon examining the record, we find that the workers’ compensation judge did

not manifestly abuse her discretion in granting Ms. Tucker’s motion for a new trial.

The record indicates that the workers’ compensation judge did not find that Ms.

Tucker was not entitled to benefits due to the lack of proof of a work-related accident.

Instead, the workers’ compensation judge determined that Ms. Tucker did not prove

those claims listed on her pre-trial statement, namely that her benefits were arbitrarily

terminated and that she was entitled to disability benefits. The record likewise reflects

that the written reasons for ruling submitted by Security Industrial and signed by the

workers’ compensation judge stated that Ms. Tucker did not sustain a work-related

accident. This portion of the written reasons did not accurately reflect the workers’

compensation judge’s findings in the matter. Ms. Tucker properly sought to amend

the ruling via a motion for new trial, which the workers’ compensation judge properly

granted for this purpose. This assignment lacks merit.

Work-Related Accident

Security Industrial further argues on appeal that the more than two-week delay

between the date of the alleged accident and the date when Ms. Tucker reported it to

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her district manager supports its contention that she did not sustain an on-the-job

accident. In fact, Security Industrial asserts, this was an unwitnessed accident, and

Ms. Tucker’s claims were inconsistent with other witnesses’ testimony regarding the

alleged injury. Security Industrial points out that Ms. Tucker did not seek medical

treatment until two weeks after the accident and that the workers’ compensation judge

found her testimony less than credible. In sum, it argues that the workers’

compensation judge erred in determining that a work-related accident occurred.

Louisiana Revised Statutes 23:1021(1) defines an accident, in the context of

workers’ compensation litigation, 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.

In workers’ compensation matters, the employee-claimant has the burden of proving

that a work-related accident occurred by a preponderance of the evidence. Darby v.

Gilbert Richard, Inc., 02-1154 (La.App. 3 Cir. 2/5/03), 838 So.2d 141. With respect

to the applicable evidentiary burden where an on-the-job accident is unwitnessed, a

panel of this court noted in Ware v. Allen Parish School Bd., 02-1011, p. 6 (La.App.

3 Cir. 5/21/03), 854 So.2d 374, 378, that:

[t]he injured employee’s testimony alone may be enough to meet the
burden of proof as long as 1) no other evidence contradicts the
employee’s version of the accident, and 2) the testimony is corroborated
by circumstances following the alleged incident. Bruno v. Harbert Int’l,
Inc., 593 So.2d 357 (La.1992). If the employee’s testimony contains
inconsistencies and discrepancies, then the injured employee’s testimony
alone will not be enough to prove his injury occurred on the job. Harris
v. General Motors, 577 So.2d 1160 (La.App. 2 Cir. 1991).

(quoting Sam v. Asplundh Tree Expert Co., 02-259, p. 2 (La.App. 3 Cir. 10/2/02), 827

So.2d 631, 633-34). Whether a work-related accident has occurred is a factual finding

that will not be set aside on appeal in the absence of manifest error. Pauley v. Wal-

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Mart Stores, Inc., 02-1354 (La.App. 3 Cir. 6/4/03), 847 So.2d 757, writ denied, 03-

1884 (La. 11/21/03) ___ So.2d ___.

The record establishes that there were no eyewitnesses to the accident and that

the client who owned the poodle at the center of this matter was not in a position to

witness the accident due to her location in the house. Because the alleged accident

herein was unwitnessed, we consult the factors listed in Ware, 854 So.2d 374, above,

in our examination of whether the record supports the workers’ compensation judge’s

determination that an at-work accident occurred. First, several witnesses who had

heard Ms. Tucker’s account of the accident testified at the disputed-claim hearing, and

each of these witnesses recalled that Ms. Tucker claimed that her injury resulted from

running from a dog. Second, testimony elicited at trial established that Ms. Tucker

had entered the client’s transaction in her debit book as having occurred on August

25, 1998, and her co-workers testified that she complained of pain two weeks later.

The record indicates that Ms. Tucker also sought medical treatment for her injuries

and was referred to orthopedic surgeons and pain-management specialists for

treatment. The record also reflects that Security Industrial paid medical benefits for

Ms. Tucker shortly after the accident was reported until February 1, 2001, nearly two

and one-half years later.

The record also indicates that Ms. Tucker sustained a severe injury. She

testified at the disputed claim hearing that she is unable to work and that she cannot

sit or stand for extended periods of time due to pain. Moreover, she indicated that as

a result of her injury, she experienced lower back pain, leg pain, neck pain, and arm

pain, as well as severe headaches. She noted that she had attended pain management

therapy until her benefits were discontinued. Ms. Tucker testified that despite these

surgeries, and despite the pain medication she takes, she still suffers from headaches,

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neck pain, back pain, and foot and leg cramps. In fact, Ms. Tucker noted, she was

scheduled to undergo two more surgeries after trial. In light of the above

considerations, the record reflects that Ms. Tucker’s testimony regarding the accident

was not inconsistent and that her testimony alone was sufficient to prove the

occurrence of a work-related injury.

Furthermore, in Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992),

the Louisiana Supreme Court addressed the timing of the filing of an accident report

and its impact upon an employee’s claim that an at-work injury occurred:

As to plaintiff’s delay in filing a formal accident report, we noted in West
[v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979)], that a worker’s
delay in reporting an injury “is more corroborative of her initial
unawareness of the seriousness of the injury ... than it is any cause to
doubt her credibility about its occurrence.” West, 371 So.2d at 1150.

Bruno, 593 So.2d at 363. In Bruno, the supreme court commented that the principle

outlined in West, 370 So.2d 1146, was “especially true when, as in the instant case,

the delay is of a relatively short duration, only two weeks.” Id. With respect to the

delay in filing the accident report, we find that the two-and-a-half-week delay between

the accident and the filing of the report in the instant matter on appeal does not render

suspect Ms. Tucker’s allegations regarding the occurrence of such an accident. Ms.

Tucker testified at trial that she obtained medical attention of her own volition and

paid for it herself. She also testified to the effect that her work schedule and her

district manager’s work schedule were at odds, making it difficult for her to get in

contact with him. The delay in filing the accident report herein was reasonable and

does not indicate that Ms. Tucker did not sustain a work-related accident. This

assignment is without merit.

DECREE

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For the foregoing reasons, the workers’ compensation judge’s ruling is

affirmed. All costs of this proceeding are assigned to the defendant-appellant,

Security Industrial.

AFFIRMED.

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