Joseph P. Roy v. Hub City Paving Contractors

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-831

JOSEPH P. ROY

VERSUS

HUB CITY PAVING CONTRACTORS

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION DISTRICT # 4
PARISH OF LAFAYETTE, NO. 03-08285
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Glenn B. Gremillion, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Gregory Bryan Dean
Dean Law Office
P. O. Drawer 280
Opelousas, LA 70571-0280
Counsel for Claimant/Appellant:
Joseph P. Roy

H. Douglas Hunter
GUGLIELMO, LOPEZ, ET AL
P. O. Drawer 1329
Opelousas, LA 70571-1329
Counsel for Defendant/Appellee:
Hub City Paving Contractors

Pickett, J.

The claimant, Joseph P. Roy, appeals a judgment of a Workers’ Compensation

Judge (WCJ) dismissing his suit for benefits arising from an accident allegedly

sustained in the course and scope of his employment with the defendant, Hub City

Paving Contractors. We affirm the judgment of the WCJ.

FACTS

The claimant alleges that he injured his back in a work related accident on

August 27, 2003. The alleged accident was unwitnessed and the defendant claims

that the claimant never reported an accident. The preceding is the sum of uncontested

“facts” in the record pertaining to the occurrence of or absence of an accident. As our

decision rests on the WCJ’s determination that the claimant failed to prove an

accident, we pretermit any further discussion of the facts at this point and will

proceed to our analysis of the WCJ’s decision.

LAW AND DISCUSSION

In Monceaux v. R & R Construction, 05-533, pp. 5-7 (La.App. 3 Cir. 12/30/05),

__ So.2d __, __-__, this court had the occasion to discuss both the standard of review

and a claimant’s burden of proof in unwitnessed workers’ compensation cases:

In Dean v. Southmark Const., 03-1051, p. 7 (La. 7/6/04), 879
So.2d 112, 117, the supreme court discussed the standard of review in
workers’ compensation cases:

In worker’s compensation cases, the appropriate
standard of review to be applied by the appellate court to
the OWC’s findings of fact is the “manifest error-clearly
wrong” standard. Brown v. Coastal Construction &
Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704
So.2d 8, 10, (citing Alexander v. Pellerin Marble &
Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706,
710). Accordingly, the findings of the OWC will not be set
aside by a reviewing court unless they are found to be
clearly wrong in light of the record viewed in its entirety.
Alexander, 630 So.2d at 710. Where there is conflict in the
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testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review, even though the appellate court may feel that its
own evaluations and inferences are as reasonable.
Robinson v. North American Salt Co., 02-1869 (La.App. 1
Cir.2003), 865 So.2d 98, 105. The court of appeal may not
reverse the findings of the lower court even when
convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently. Robinson,
865 So.2d at 105. The determination of whether injury
occurred in the course and scope of employment is a mixed
question of law and fact. Winkler v. Wadleigh Offshore,
Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316
(citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4
Cir. 5/12/99), 734 So.2d 874).

Recently, this court addressed a claimant’s burden in proving the
he/she suffered a work-related accident:

In order to recover workers’ compensation benefits,
an injured employee must prove by a preponderance of the
evidence that he suffered 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 as an
“unexpected or unforseen 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.” La.R.S.
23:1021(1).

The Louisiana Supreme Court, in Bruno v. Harbert
International Inc., 593 So.2d 357, 361 (La.1992),
expounded on what proof will satisfy an employee’s
burden in proving a work-related injury:

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. West v. Bayou Vista Manor, Inc.,
371 So.2d 1146 (La.1979); Malone and
Johnson, 13 Louisiana Civil Law Treatise,
Workers' Compensation, § 253 (2d Ed.1980).
Corroboration of the worker’s testimony may
be provided by the testimony of fellow
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workers, spouses or friends. Malone &
Johnson, supra; Nelson v. [Roadway
Express, Inc., 588 So.2d 350 (La.1991) ].
Corroboration may also be provided by
medical evidence. West, supra.

In determining whether the worker has discharged his or her
burden of proof, the trial court should accept as true a witness’s
uncontradicted testimony, although the witness is a party, absent
“circumstances casting suspicion on the reliability of this testimony.”
West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381,
1383 (La.1987). The trial court’s determinations as to whether the
worker’s testimony is credible and whether the worker has discharged
his or her burden of proof are factual determinations not to be disturbed
on review unless clearly wrong or absent a showing of manifest error.
Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d
Cir.),writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

As stated in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989)
(citations omitted):

When findings are based on determinations
regarding the credibility of witnesses, the manifest
error--clearly wrong standard demands great deference to
the trier of fact's findings; for only the factfinder can be
aware of the variations in demeanor and tone of voice that
bear so heavily on the listener’s understanding and belief
in what is said. Where documents or objective evidence so
contradict the witness’s story, or the story itself is so
internally inconsistent or implausible on its face, that a
reasonable fact finder would not credit the witness’s story,
the court of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a
credibility determination. But where such factors are not
present, and a factfinder’s finding is based on its decision
to credit the testimony of one of two or more witnesses,
that finding can virtually never be manifestly erroneous or
clearly wrong.

Bigge v. The Lemoine Co., 04-1191, pp. 3-4 (La.App. 3 Cir. 3/2/05), 896
So.2d 269, 271, 72.

In her written reasons for judgment, the WCJ summarized the testimony of the

claimant, that of Mr. Ray Courville, the work-site supervisor, and that of Johnny

Broussard, “a working co-owner of the business . . . [who] was intermittently on the

job site.”
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The WCJ noted a major inconsistency between the claimant’s deposition and

trial testimonies: “At trial, Mr. Roy said he was injured while carrying the water

pump while pumping out ditches to lay pipe. In his deposition Mr. Roy stated the

accident occurred while he was carrying the generator to start up the machine Ray

Courville was working on.”

Further, she commented that Mr. Courville testified that the claimant had

shown up on Monday morning, August 24, 2003, limping and that this had happened

before. On those occasions, when questioned, he had explained that it was his

arthritis acting up. In her reasons for judgment, the WCJ stated that Mr. Courville

described the project on which Hub City was working during the week of August 24-

28, 2003, as “a new road project as opposed to a resurfacing project.” She stated that

according to Mr. Courville’s testimony, Hub City was doing site preparation work.

She explained that Mr. Courville testified that when engaged in site preparation the

contractor “strips the grass, cuts the ditches then builds up the road. If pipes are

needed, they are put in. Then a transport truck drops the powdered cement and the

contractor chops the powder into the dirt with a stabilizer, which is similar to a large

tiller, to make the base.” Following those steps, the road-bed is packed, bladed, re-

packed and then watered down. Finally, “[t]he road is then tight-bladed, shaved to

make it smooth, and then primed.” Further, the WCJ recounted that Mr. Courville

stated that on “the day of the alleged accident, Roy [the claimant] would have been

fixing pin flags, eighteen inch flags to mark the center of the road, and sweeping

cement powder with a broom.” The WCJ also noted that, according to Mr. Courville,

neither the water pump nor the generator was used on this particular project.

The WCJ’s reasons for judgment further note that Mr. Broussard testified that

“he was on the site on Wednesday and saw no generators or pumps;” that when he
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took the claimant home on Thursday, the claimant told him that his arthritis was

acting up and had the claimant reported an on the job injury, he (Mr. Broussard)

would have taken the claimant to the hospital.

The WCJ also noted that while the claimant and his ex-sister-in-law, Ms.

Barbara Savoie, “both testified that Ms. Savoy’s [sic] brother, John Portalis, brought

Mr. Roy to the hospital on that first post-accident visit and that Mr. Portalis told the

doctor what had happened. However, Mr. Portalis denied giving the doctor any

information.”

Hence, at the close of testimony on July 7, 2004, the WCJ was unsure as to how

this case should be decided. The following, from her written reasons for judgment,

explain the action she took at that time and the results of that action:

At the conclusion of trial, the WCJ had questions regarding the
credibility of all the witnesses, but particularly that of Roy and
Courville. Roy was not patently credible, but this could be attributable
to his very limited intellectual capacities, his hearing problem and
speech impediment. Courville was not patently incredible, but it was
apparent that he and Roy did not have a particularly friendly
relationship. The WCJ therefore requested additional evidence which
the WCJ believed would either support or discredit their testimony. One
issue in dispute was whether or not Mr. Roy was working another job on
the weekends. Mr. Roy and his sister-in-law, Barbara Savoy [sic],
testified that Mr. Roy did not do other work on the weekends. Mr.
Broussard and Mr. Courville testified that Mr. Roy worked another job
on weekends and in fact had shown up at work for Hub City on a
Monday with flash burns from welding on the other job and was sent
home to heal. Mr. Roy denied this. The WCJ therefore requested
payroll documentation from the employer for the time Mr. Roy was
supposed to have missed work due to flash burn. The WCJ also
requested the cement tickets that Mr. Courville stated would corroborate
his testimony as to the work being performed during the week in
question.

The evidence requested by the WCJ at the conclusion of the trial
corroborated the employer’s version of events. The handwritten
timesheet [sic] for the week ending June 27, 2003 reflects that “Joe” was
out part of the week for “flash burn from other job.” The check register
for that pay period is in line with the handwritten time sheet.
Employer’s counsel offered to make additional witnesses available to
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testify on those facts if necessary. The cement tickets confirmed
deliveries on August 22 and August 27 in accordance with Ray
Courville’s testimony. The evidence requested therefore tended to
discredit Mr. Roy’s testimony and corroborate the testimony of Mr.
Courville and Mr. Broussard.

After considering the elements of the burden of proof as set out by the

Louisiana Supreme Court, the WCJ stated that “Mr. Roy has problems with both

elements required under Bruno but the more significant problem is with the first

element, that is whether other evidence discredits or casts serious doubt upon his

version of the incident.” She concluded that “[g]iving Mr. Roy the benefit of the

doubt, and viewing the evidence from his perspective, the probabilities are at best

evenly balanced. Mr. Roy’s claim must therefore be dismissed for failure to prove the

occurrence of an accident by a preponderance of the evidence.”

Our review of the record confirms the accuracy of the WCJ’s written reasons

for judgment as to the testimony cited therein. Furthermore, after considering that

testimony, the evidence submitted by both parties, and the burden of proof as set out

in Bruno and the standard of review as discussed in Dean and reviewed by this court

in Monceaux, we cannot say that the conclusion reached by the WCJ is either

“manifestly erroneous” or “clearly wrong.”

Accordingly, for the reasons stated above, the judgment of the Office of

Workers’ Compensation is affirmed. Inasmuch as the claimant/appellant is appearing

in forma pauperis, we pretermit the assignment of costs.

AFFIRMED.

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