Kenneth D. Lopez v. Town of Zwolle

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-76

KENNETH D. LOPEZ

VERSUS

TOWN OF ZWOLLE

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION District # 2
PARISH OF RAPIDES, NO. 02-09213
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
Elizabeth A. Pickett, Judges.

AFFIRMED AS AMENDED.

George A. Flournoy
Flournoy & Doggett
P. O. Box 1270
Alexandria, LA 71309-1270
Counsel for Claimant/Appellee:
Kenneth D. Lopez

Joseph B. Stamey
Stamey & Miller, LLC
P. O. Box 1288
Natchitoches, LA 71458-1288
Counsel for Defendant/Appellant:
Town of Zwolle

1 Pickett, Judge.

2 The defendant, the Town of Zwolle, appeals a judgment of an Office of

3 Workers’ Compensation Judge (WCJ) finding the claimant, Kenneth Lopez,

4 temporarily totally disabled and awarding the claimant workers’ compensation

5 benefits, penalties and attorney’s fees. The claimant answered the appeal seeking an

6 increase in attorney’s fees for work necessitated by this appeal. We affirm the

7 judgment of the WCJ and award the claimant an additional $2500.00 in attorney’s

8 fees.

9 FACTS

10 The claimant was employed by the Town of Zwolle Streets Department on

11 October 2, 2002, when he allegedly injured his back, right arm and elbow while

12 lifting an old, chest-type deep freezer into a dump truck. The Town of Zwolle

13 disputed Mr. Lopez’s claim and refused to pay any workers’ compensation benefits.

14 A Disputed Claim For Compensation Form was filed on December 12, 2002. Trial

15 of the matter was held June 21, 2006, and, following a delay to allow the defense to

16 depose a witness, reasons for judgment were read into the record on October 17,

17 2006. The WCJ found that the claimant had carried his burden of proving a work

18 related accident, his subsequent disability, and that the defendant’s denial of the claim

19 without adequate investigation was arbitrary and capricious. The WCJ awarded the

20 claimant all back due weekly benefits, all medical expenses incurred in connection

21 with the claimant’s injuries, and ordered the defendant to pay for an MRI

22 recommended by Drs. Garland Miller and Carl Goodman. Additionally, the claimant

23 was awarded $8,000.00 (combined award) in penalties for the defendant’s failure to

24 pay indemnity and medical benefits. The claimant was also awarded $5,500.00 in

1

1 attorney’s fees plus interest and costs. The defendant appeals arguing that the WCJ

2 erred in finding that the claimant sustained his burden of proof in establishing an

3 accident in the course and scope of his employment. The claimant answered the

4 appeal seeking additional attorney’s fees necessitated by this appeal.

5 LAW AND DISCUSSION

6 The issues raised in this case have been discussed many times before. In

7 Phillips v. Coca-Cola Bottling Co. United, 06-323 (La.App. 3 Cir 9/27/06), 939 So.2d

8 673, this court observed the following:

9 This court, in Monceaux v. R & R Construction, Inc., 05-533
10 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, writs denied, 06-0585
11 (La.5/5/06), 927 So.2d 325, 06-0636 (La.5/5/06), 927 So.2d 317, had
12 occasion to address both the standard of review and a claimant’s burden
13 of proof in workers’ compensation cases involving unwitnessed
14 accidents. In that case, we said:
15
16 In Dean v. Southmark Construction, 03-1051, p. 7
17 (La.7/6/04), 879 So.2d 112, 117, the supreme court
18 discussed the standard of review in workers' compensation
19 cases:
20
21 In worker’s compensation cases, the
22 appropriate standard of review to be applied
23 by the appellate court to the OWC’s findings
24 of fact is the “manifest error-clearly wrong”
25 standard. Brown v. Coastal Construction &
26 Engineering, Inc., 96-2705 (La.App. 1 Cir.
27 11/7/97), 704 So.2d 8, 10, (citing Alexander
28 v. Pellerin Marble & Granite, 93-1698, pp.
29 5-6 (La.1/14/94), 630 So.2d 706, 710).
30 Accordingly, the findings of the OWC will
31 not be set aside by a reviewing court unless
32 they are found to be clearly wrong in light of
33 the record viewed in its entirety. Alexander,
34 630 So.2d at 710. Where there is conflict in
35 the testimony, reasonable evaluations of
36 credibility and reasonable inferences of fact
37 should not be disturbed upon review, even
38 though the appellate court may feel that its
39 own evaluations and inferences are as
40 reasonable. Robinson v. North American Salt

2

1 Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d
2 98, 105. The court of appeal may not reverse
3 the findings of the lower court even when
4 convinced that had it been sitting as the trier
5 of fact, it would have weighed the evidence
6 differently. Robinson, 865 So.2d at 105. The
7 determination of whether injury occurred in
8 the course and scope of employment is a
9 mixed question of law and fact. Winkler v.
10 Wadleigh Offshore, Inc., 01-1833 (La.App. 4
11 Cir. 4/24/02), 817 So.2d 313, 316 (citing
12 Wright v. Skate Country, Inc., 98-0217
13 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).
14
15 Recently, this court addressed a claimant’s burden in proving the
16 [sic] he/she suffered a work-related accident:
17
18 In order to recover workers’ compensation benefits,
19 an injured employee must prove by a preponderance of the
20 evidence that he suffered a “personal injury by accident
21 arising out of and in the course of his employment.”
22 La.R.S. 23:1031(A). An “accident” is defined as an
23 “unexpected or unforseen actual, identifiable, precipitous
24 event happening suddenly or violently, with or without
25 human fault, and directly producing at the time objective
26 findings of an injury which is more than simply a gradual
27 deterioration or progressive degeneration.” La.R.S.
28 23:1021(1).
29
30 The Louisiana Supreme Court, in Bruno v. Harbert International
31 Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will
32 satisfy an employee’s burden in proving a work-related injury:
33
34 A worker’s testimony alone may be sufficient to discharge
35 this burden of proof, provided two elements are satisfied:
36 (1) no other evidence discredits or casts serious doubt upon
37 the worker’s version of the incident; and (2) the worker’s
38 testimony is corroborated by the circumstances following
39 the alleged incident. West v. Bayou Vista Manor, Inc., 371
40 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana
41 Civil Law Treatise, Workers’ Compensation, § 253 (2d
42 Ed.1980). Corroboration of the worker’s testimony may be
43 provided by the testimony of fellow workers, spouses or
44 friends. Malone & Johnson, supra; Nelson v. [Roadway
45 Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration
46 may also be provided by medical evidence. West, supra.
47

3

1 In determining whether the worker has discharged his or her
2 burden of proof, the trial court should accept as true a witness’s
3 uncontradicted testimony, although the witness is a party, absent
4 “circumstances casting suspicion on the reliability of this testimony.”
5 West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381,
6 1383 (La.1987). The trial court’s determinations as to whether the
7 worker’s testimony is credible and whether the worker has
8 discharged his or her burden of proof are factual determinations not
9 to be disturbed on review unless clearly wrong or absent a showing
10 of manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824
11 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting
12 cases).
13
14 As stated in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989)
15 (citations omitted):
16
17 When findings are based on determinations
18 regarding the credibility of witnesses, the manifest
19 error-clearly wrong standard demands great deference to
20 the trier of fact’s findings; for only the factfinder can be
21 aware of the variations in demeanor and tone of voice that
22 bear so heavily on the listener’s understanding and belief
23 in what is said. Where documents or objective evidence so
24 contradict the witness’s story, or the story itself is so
25 internally inconsistent or implausible on its face, that a
26 reasonable fact finder would not credit the witness’s story,
27 the court of appeal may well find manifest error or clear
28 wrongness even in a finding purportedly based upon a
29 credibility determination. But where such factors are not
30 present, and a factfinder’s finding is based on its decision
31 to credit the testimony of one of two or more witnesses,
32 that finding can virtually never be manifestly erroneous or
33 clearly wrong.
34
35 Bigge v. The Lemoine Co., 04-1191, pp. 2-4 (La.App. 3 Cir. 3/2/05), 896
36 So.2d 269, 271-72.
37
38 Monceaux, 919 So.2d at 798-800 (emphasis added).
39
40 Phillips, 939 So.2d at 675-77, [bolded emphasis in original].
41
42 Although the accident in Monceau was unwitnessed, the principles of law

43 enunciated therein are applicable to the case sub judice. In this case, even though the

44 accident was witnessed by a fellow employee, Ricky Williams, Mr. Williams was not

45 called as a witness at the hearing. The defendant did submit a hand-written statement

4

1 by Mr. Williams (D-4). That statement was objected to by the claimant. The WCJ

2 noted the exception, but allowed the hand-written statement to be introduced. [We

3 note that an abbreviated form of that statement was introduced in exhibit P-5, the

4 Supervisor’s Accident Investigation packet.] At the close of the hearing on June 21,

5 2006, the WCJ left the record open for 60 days to allow for the taking of Mr.

6 Williams’ deposition. The deposition contains no information that would differ

7 significantly from that in exhibits D-4 and P-5. In the deposition Mr. Williams states,

8 “I asked him [Mr. Lopez] would he lift up one end for me and after he did that I got

9 it. . . . We both got on down against the end of it and we lifted up. . . .”

10 We find the claimant’s case fits squarely under the burden of proof expounded

11 by the supreme court in Bruno. The defense offered no evidence which discredited

12 or cast serious doubt upon the claimant’s version of the incident. The claimant’s

13 testimony is corroborated by the medical records and depositions of the physicians

14 he saw following the alleged incident. His testimony is corroborated by the testimony

15 of his spouse.

16 The WCJ chose to accept the claimant’s testimony and evidence, and we find

17 nothing in the record to convince us that the findings of the WCJ are clearly wrong

18 or manifestly erroneous.

19 The claimant answered the defendant’s appeal seeking additional attorney’s

20 fees for the work necessitated by the defendant’s appeal. We find merit in this request

21 and award the claimant $2,500.00 in additional attorney’s fees. All costs of this

22 appeal are assessed against the defendant, the Town of Zwolle.

23 AFFIRMED AS AMENDED.

5