Eugene Wells v. Dunham Price, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-209

EUGENE WELLS

VERSUS

DUNHAM PRICE, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3,
PARISH OF CALCASIEU, NO. 00-7231,
SAM LOWERY, WORKERS’ COMPENSATION JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Scott J. Pias
Attorney at Law
522 Alamo Street
Lake Charles, Louisiana 70601
(337) 436-1288
Counsel for Plaintiff/Appellee:
Eugene Wells

David S. Pittman
Rabalais, Unland & Lorio
5100 Village Walk, Suite 300
Covington, Louisiana 70433
(985) 893-9900
Counsel for Defendant/Appellant:
Dunham Price, Inc.

SULLIVAN, Judge.

Dunham Price, Inc. appeals an award of workers’ compensation benefits in

favor of Eugene Wells. For the following reasons, we affirm.

Procedural History

This litigation stems from Mr. Wells’ allegation that he sustained a work-

related accident on September 8, 1999, while driving a cement truck for Dunham

Price. Dunham Price initially filed a disputed claim, contending that Mr. Wells did

not suffer a work-related accident and/or that any injury or disability was not causally

related to his employment. Mr. Wells subsequently filed his own disputed claim,

seeking indemnity benefits, medical expenses, penalties, and attorney fees.

Dunham Price then filed a motion for summary judgment, which the workers’

compensation judge (WCJ) denied. However, in that judgment, the WCJ also

awarded Mr. Wells medical and indemnity benefits. Upon Dunham Price’s appeal,

we affirmed the denial of summary judgment, but we reversed the award of benefits

as premature and remanded for trial on the merits. Dunham Price, Inc. v. Wells, 01-

712, 01-713 (La.App. 3 Cir. 10/31/01), 799 So.2d 828. On remand after a trial, WCJ

Constance Abraham-Handy ruled against Mr. Wells. On appeal of that judgment, this

court, in an unpublished ruling, again remanded, ordering a new trial because the

record could not be completed due to the deaths of both the WCJ and the court

reporter. Wells v. Dunham Price, Inc., 02-960 (La.App. 3 Cir. 8/20/02). After a

second trial, WCJ Sam Lowery awarded Mr. Wells medical and indemnity benefits,

but denied his claim for penalties and attorney fees. This is the judgment that is the

subject of the present appeal.

Discussion of the Record

At the second trial, Mr. Wells testified that, while driving a cement truck

through rough terrain on September 8, 1999, his seat “bottomed out” after he struck

something in the road. He described the immediate onset of a sharp, burning pain that

shot down his left leg all the way to his foot. He also explained that, because he was

in so much pain, he could barely continue driving and that, when he reached his

destination, he had to ask another driver, Thomas Hockman, to unload his truck.

Mr. Hockman confirmed that the drive had been over rough terrain and that he did

unload Mr. Wells’ truck for him. Mr. Hockman testified that Mr. Wells did not state

that he had been in an accident while driving, but it appeared to Mr. Hockman that

Mr. Wells was hurt.

According to Mr. Wells, he reported the incident that day to the dispatcher,

David Joshlyn (who was not called to testify), and later to the office manager,

Melanie Conner. Mr. Wells remained off work for seven weeks, then he returned to

work at light duty through February 26, 2000, when his pain prevented him from

working any more. He was diagnosed with a herniated disc and underwent surgery

in April of 2000. He returned to work full time for another company on May 5, 2001.

John Ardoin, the truck foreman, testified that other employees informed him

that Mr. Wells had left work on September 8, 1999, because his back was hurting.

Mr. Ardoin stated that he next saw Mr. Wells about a week later, when Mr. Wells

asked him to file a workers’ compensation claim. Mr. Ardoin testified that he told

Mr. Wells he would not file a claim because more than seventy-two hours had passed

since the alleged accident and, further, that Mr. Wells told him he was not injured at

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work. Mr. Ardoin stated that Mr. Wells had complained of back problems in the past

and that he had previously provided Mr. Wells with a support belt.

Ms. Conner, the office manager, testified that Mr. Wells asked her to file a

workers’ compensation claim sometime between November of 1999 and February of

2000. She explained that she refused his request because he did not have a “specific

injury” and that she told him he should use his health insurance for his medical

expenses. Ms. Conner testified that she believed Mr. Wells was working at his home

because she knew of concrete tickets showing deliveries at his address on days when

he had called in sick. Ms. Conner also testified that she later prepared a report stating

that Mr. Wells told her he was not injured at work, but she did not know where that

report was at the time of trial. Called to the stand on rebuttal, Mr. Wells testified that

his grandson did all of the concrete work at his home and that he did not say that his

injury was not work-related.

Mr. Wells was treated by Dr. Randall Wagman on September 8, 1999 for

complaints of low back pain and pain in the left buttock. Dr. Wagman’s records

contain the notation, “pain in lower back x 1½ weeks.” An MRI of September 14,

1999 revealed a “large herniated disc fragment” at L5-S1, with degenerative disc

disease and diffuse bulging without herniation from L2-3 to L4-5. Dr. Wagman

referred Mr. Wells to an orthopedic surgeon, Dr. Dale Bernauer, who performed a

lumbar laminectomy, discectomy, and fusion on April 25, 2000. On March 27, 2000,

Dr. Bernauer issued a letter stating, “[Mr. Wells] has a disc protrusion with extrusion

of disc at L5-S1. This gentleman has a long history of driving a cement truck. This

certainly could be a contributing cause for his disc herniation.”

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At trial, Mr. Wells testified that he had been previously seen by other

physicians for back problems. On cross-examination, he acknowledged that he had

been seen by Dr. Cormier, a chiropractor, for low back pain with leg pain on May 15,

1995 and on January 4, 1999, and by Dr. Lebato, of Sulphur, Louisiana, for “lower

back pain going down to leg (left side)” on January 8, 1999. He also testified that he

underwent a lumbar MRI in January of 1999. However, the MRI results and the

records of Drs. Cormier and Lebato were not introduced into evidence.

Ruling in favor of Mr. Wells, the WCJ stated that his judgment was based upon

credibility determinations as well as a presumption of causation. On appeal, Dunham

Price argues that the WCJ erred (1) in finding that Mr. Wells sustained an accident

in the course and scope of his employment; (2) in awarding temporary total disability

benefits in the absence of clear and convincing evidence; (3) in finding that

Mr. Wells’ medical problems were caused by a work-related accident; and (4) in

rejecting its claim for forfeiture of benefits under La.R.S. 23:1208.

Temporary Total Disability Benefits

Dunham Price argues that Mr. Wells failed to prove that he sustained an

accident, that he suffered a work-related injury, and that he is entitled to temporary

total disability benefits by clear and convincing evidence. Dunham Price further

argues that we should review this case de novo because the WCJ improperly applied

a presumption of causation in favor of Mr. Wells.

To recover workers’ compensation benefits, a claimant must establish a

“personal injury by accident arising out of and in the course of his employment.”

La.R.S. 23:1031(A). An “accident” is defined in La.R.S. 23:1021(1) as “an

unexpected or unforeseen actual, identifiable, precipitous event happening suddenly

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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.” The claimant bears the burden of establishing a work-related accident

by a preponderance of the evidence. Bruno v. Harbert Int’l, Inc., 593 So.2d 357

(La.1992); Douglas v. Grey Wolf Drilling Co., 03-515 (La.App. 3 Cir. 11/5/03), 858

So.2d 830. Where, as in the present case, the alleged accident is unwitnessed:

[a] worker’s testimony alone may be sufficient to discharge this burden
of proof, provided two elements are satisfied: (1) no other evidence
discredits or casts 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. Corroboration of the
worker’s testimony may be provided by the testimony of fellow workers,
spouses or friends. Corroboration may also be provided by medical
evidence.

Bruno, 593 So.2d at 631 (citations omitted).

The claimant must also establish a causal link between the work-related

accident and the claimed disability. Walton v. Normandy Village Homes Ass’n, Inc.,

475 So.2d 320 (La.1985). A claimant with a pre-existing disease or infirmity is not

disqualified from receiving benefits if he can prove that the workplace accident

aggravated, accelerated, or combined with the pre-existing condition to produce the

claimed disability. Tate v. Cabot Corp., 01-1652 (La.App. 3 Cir. 7/3/02), 824 So.2d

456, writ denied, 02-2150 (La. 11/22/02), 829 So.2d 1044. “Thus, the element of

causation is satisfied if the employee’s work-related accident was a factor in bringing

about the employee’s disabled status.” Id. at 461 (quoting Rideaux v. Franklin

Nursing Home, 95-240, p. 5 (La.App. 3 Cir. 11/22/95), 664 So.2d 750, 755, writ

denied, 95-3093 (La. 2/16/96), 667 So.2d 1058). Further:

[t]he employee’s workplace accident is presumed to have caused or
aggravated [his] disability when [he] proves that: (1) before the
accident, [he] had not manifested disabling symptoms; (2) commencing

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with the accident, the disabling symptoms appeared; and (3) there is
medical or circumstantial evidence indicating a reasonable possibility
of causal connection between the accident and activation of the
disabling condition. Once an employee establishes the presumption of
a casual relationship, the employer must produce evidence and persuade
the trier of fact that it is more probable than not that the injury was not
caused by the work accident.

Id.

We will consider Dunham Price’s argument concerning causation first, as its

outcome could affect the standard of review applied. Factual findings in a workers’

compensation case are governed by the manifest error standard of review, which

requires only that the appellate court determine that the fact finder’s conclusions were

reasonable. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97),

696 So.2d 551. However, where one or more legal errors interdict the fact-finding

process, the reviewing court should conduct a de novo assessment of the record.

Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502.

Dunham Price argues that the WCJ erred in applying a presumption of

causation, given Dr. Wagman’s medical records indicating that Mr. Wells reported

back pain “x 1½ weeks” on September 8, 1999 and Mr. Wells’ admission that he had

previously seen a chiropractor as late as January of 1999 for back pain and left leg

pain. Noting the scarcity of the medical information in the record, the WCJ stated:

“This boils down to credibility. It just gets down to being able to sit and look at

somebody and being able to decide who’s telling the truth.” The WCJ then

specifically found Mr. Wells’ explanation of being injured while driving the cement

truck to be credible. The record before the WCJ also included Mr. Wells’ testimony

that the pain he felt while driving the truck was “totally different” than before in that

“it was mainly all the way down to my foot this time,” as well as Mr. Wells’

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immediate inability to return to work for seven weeks. Although Dunham Price

points to Mr. Wells’ admission that he had previously seen a chiropractor for back

and leg pain, those medical records were not introduced at trial, making it impossible

for us to evaluate the severity of the previous complaints. On this record, we find no

error in the WCJ’s decision to apply a presumption of causation, and in his implicit

conclusion that Defendant failed to rebut that presumption.

Concerning the facts of the accident, we note the corroboration provided by the

co-worker, Mr. Hockman, who testified that he had to unload Mr. Wells’ truck for

him and that Mr. Wells appeared to be hurt upon arriving at his destination. We also

note Mr. Wells’ two unsuccessful attempts to report the accident, the first to

Mr. Ardoin a week later and the second to Ms. Connor either on the telephone in

September 1999 or between November 1999 and February 2000. Although

Mr. Ardoin and Ms. Conner both testified that Mr. Wells told them he was injured

elsewhere, Ms. Connor admitted she could not locate a report she prepared

memorializing that conversation. In Douglas, 858 So.2d 830, this court found no

error in the WCJ’s conclusion that the claimant sustained an unwitnessed accident,

notwithstanding inconsistencies in the medical records and the testimony of two co-

workers that the claimant had reported to them that his injuries were not work-related.

We likewise find no error in the present case, given the WCJ’s specific reliance on

credibility evaluations.

Concerning disability, we note that the extent of Mr. Wells’ injury was not

seriously disputed at trial. An MRI taken one week after the accident revealed a

“large herniated disc fragment” at L5-S1, and Mr. Wells underwent a laminectomy,

with discectomy and fusion, on April 25, 2000. We find no error in the WCJ’s

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conclusion that Mr. Wells proved his disability during the months he was off work

by clear and convincing evidence as required by La.R.S. 23:1221(1)(c).

Forfeiture of Benefits

Dunham Price next argues that the WCJ should have found that Mr. Wells

violated La.R.S. 23:1208, contending that he made a “myriad of false statements” in

furtherance of his claim. Specifically, Dunham Price argues that Mr. Wells’

testimony that he injured himself at work is untrue, given the inconsistencies in

medical records and the testimony of Mr. Ardoin and Ms. Conner that Mr. Wells told

them he had not injured himself at work.

In Douglas, 858 So.2d at 836, we discussed La.R.S. 23:1208 as follows:

Louisiana Revised Statutes 23:1208(A) provides, in part: “It shall
be unlawful for any person, for the purpose of obtaining . . . any benefit
or payment under the provisions of this Chapter . . . to willfully make a
false statement or representation.”

“The only requirements for forfeiture of benefits under Section
1208 are that (1) there is a false statement or representation, (2) it is
willfully made, and (3) it is made for the purpose of obtaining or
defeating any benefit or payment.” Resweber v. Haroil Constr. Co.,
94-2708, 94-3138, p. 7 (La. 9/5/95), 660 So.2d 7, 12.

However, because statutory forfeiture is a harsh remedy, it must
be strictly construed. Benoit v. Frank’s Casing Crew, 97-1522 (La.App.
3 Cir. 5/20/98), 713 So.2d 762, writ denied, 98-1697 (La.10/9/98), 726
So.2d 31. Whether an employee has forfeited his right to workers’
compensation benefits is a question of fact that will not be disturbed on
appeal absent manifest error. Smith v. Quarles Drilling Co., 99-171
(La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La.
10/8/99), 751 So.2d 227.

We find no error in the WCJ’s conclusion that Mr. Wells did not commit fraud.

Mr. Wells admitted his prior back problems in his deposition, at trial, and in a post-

hire questionnaire. A co-worker, Mr. Hockman, provided corroboration as to the

events immediately following the accident. The disputed testimony concerns whether

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Mr. Wells told Mr. Ardoin and Ms. Connor that he did not injure himself at work.

Considering the WCJ’s credibility determinations and Ms. Connor’s admission that

she could not locate a document memorializing that conversation, we cannot conclude

that the WCJ erred.

Decree

For the above reasons, the judgment of the Office of Workers’ Compensation

is affirmed. Costs of this appeal are assessed to Defendant-Appellant, Dunham Price,

Inc.

AFFIRMED.

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