S & S Coating Specialties v. Brock Dore

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 07-745 consolidated with WCA 07-746

S & S COATING SPECIALTIES

VERSUS

BROCK DORE

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 04
PARISH OF LAFAYETTE, NO. 04-00529 c/w 04-00692
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

Court composed of John D. Saunders, Oswald A. Decuir, and J. David Painter,
Judges.

AFFIRMED.

William Michael Stemmans
668 S. Foster Dr., #101
Baton Rouge, LA 70806
(225) 231-1288
Counsel for Plaintiff/Appellee:
S & S Coating Specialties

Harry Karl Burdette
The Glenn Armentor Law Corp.
300 Stewart St.
Lafayette, LA 70501
(337) 233-1471
Counsel for Defendant/Appellant:
Brock Dore

SAUNDERS, Judge.

This is a workers’ compensation case. Claimant was injured in a work related

accident. The employer filed a 1008 alleging that Claimant was using illicit drugs on

the day of the accident. Claimant filed a 1008 alleging that the employer arbitrarily

and capriciously denied workers’ compensation benefits. Their claims were

consolidated.

After a two day trial and taking the matter under advisement, the workers’

compensation judge (hereinafter “WCJ”) found that Claimant was entitled to medical

benefits for the initial emergency room visit and for four days of disability benefits.

As the employer had already paid employee those benefits, the WCJ denied Claimant

any penalties or attorney’s fees. Claimant has appealed alleging two assignments of

error. We affirm the WCJ’s judgment.

FACTS AND PROCEDURAL HISTORY:

Claimant, Brock Dore (hereinafter “Dore”), was employed with S&S Coating

Specialties, Inc. (hereinafter “the employer”) as a painter. Dore had suffered an injury

prior to his employment. Dore’s prior injury resulted in a preexisting cervical

condition that, according to Dore, had resolved. On December 22, 2003, while in the

course and scope of his employment, Dore was injured by a falling box that hit him

on the neck and shoulder. Dore reported the accident to his supervisor, then went

home to rest. Thereafter, Dore went to the emergency room and presented with pain

on the right side of his neck and right shoulder. The emergency room physician, Dr.

Chester Dellanger, gave Dore a four-day work release.

On January 22, 2004, the employer filed a 1008 alleging that Dore was not

allowed to receive benefits as he was under the influence of illicit drugs at the time

of the accident. Approximately seven days after the initial 1008 filed by the employer,

Dore filed a 1008 alleging that he was disabled from the December 22, 2003, accident

and that the employer was arbitrarily and capriciously denying him workers’

compensation benefits. The cases were consolidated.

Dore continued to receive medical treatment, complaining of pain on the right

side of his neck and radiating pain down his right arm. An MRI was conducted on

May 13, 2004. The May 13, 2004, MRI was compared to Dore’s December 1, 1999,

MRI that was conducted as a result of Dore’s prior injury. Minimal changes were

shown to Dore’s C5-C6 disc on the left side, but no other changes were shown.

The matter was tried on June 2, 2005 and June 5, 2005. After the submission

of testimony and evidence, the matter was taken under advisement. Judgment was

rendered on October 13, 2006. The WCJ found that Dore had failed to carry his

burden of proving that the disability he suffered as a result of the pain on his right

side was causally related to the December 22, 2003, accident.

The WCJ, after listening to medical evidence, opined that Dore’s subjective

complaints of pain on his right side were not typical of the protrusions that the May

13, 2004, MRI had shown on Dore’s left side. Therefore, the WCJ found that Dore

had to prove that his condition was not typical. The WCJ ruled that Dore failed to

carry this burden because he had supported his position with his own testimony, and

that his testimony lacked credibility.

The WCJ made her decision on Dore’s credibility based upon inconsistencies

in his testimony, a history of drug seeking behavior, and a prior judgment that found

Dore had committed workers’ compensation fraud. Dore has appealed alleging first

that the WCJ committed manifest error in finding that he was not entitled to any

further indemnity or medical benefits beyond the emergency room visit and four days

2

of disability. Second, Dore is alleging that the WCJ committed manifest error in

finding that the employer was not arbitrary and capricious in its denial of his claim.

We find that the two assignments of error raised by Dore lack merit. As such,

we affirm the WCJ’s judgment and assess all costs of this appeal to Dore.

ASSIGNMENTS OF ERROR:

1. Did the WCJ commit manifest error in finding that the employee, Brock Dore,
was not entitled to any further indemnity or medical benefits beyond the
emergency room visit and four days of disability?

2. Did the WCJ commit manifest error in finding that the employer, S&S Coating
Specialties, Inc., was not arbitrary and capricious in its denial of the
employee’s claim?

ASSIGNMENT OF ERROR #1:

Dore contends that the WCJ committed manifest error in finding that he was

not entitled to any further indemnity or medical benefits beyond the emergency room

visit and four days of disability. This assignment of error lacks merit.

This court noted the following in Veazie v. Gilchrist Const. Co., 04-118, pp.

2-3 (La.App. 3 Cir. 6/2/04), 878 So.2d 742, 744-745, writ denied, 04-1692 (La.

10/8/04), 883 So.2d 1018:

Appellate review in workers’ compensation cases is governed by
the manifest error or clearly wrong standard. Freeman v. Poulan/Weed
Eater, 93-1530 (La.[1/]14[/94]), 630 So.2d 733. The appellate court
must determine not whether the trier of fact was right or wrong, but
whether the fact finder’s conclusion was a reasonable one in light of the
entire record. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Where there is conflict in the 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 more reasonable. Stobart v. State,
through DOTD, 617 So.2d 880 (La.1993). Deference is due to the
factfinder’s determinations regarding the credibility of witnesses, “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.” Rosell, 549 at 844.

3

In a workers’ compensation proceeding, much like that in most civil actions,

the plaintiff/employee must prove by a preponderance of the evidence the cause of

his or her workers’ compensation claim. Therefore, the evidence, when taken as a

whole, must show that it is more probable than not that the employment accident

caused the injury. Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.

1974).

In the case before us, the WCJ found that Dore was only entitled to disability

and indemnity benefits for the emergency room visit on the day of the accident and

for the following four days after the accident. In order for this court to reverse the

WCJ’s findings, we must conclude, in light of the entire record, no reasonable person

could have made the same findings as the WCJ. There is ample evidence in the record

to support the WCJ’s findings.

Dr. Chester Dellanger, the emergency room doctor who saw Dore the day of

the accident, gave Dore a four-day work release the day of the accident. Other than

the emergency room records, the primary objective indication of Dore’s injury was

the MRI performed on May 13, 2004. The MRI showed that the abnormal discs with

protrusions were on Dore’s left side, while Dore’s subjective complaints of pain were

on his right side. Dr. Dellanger and Dr. Gregory Gidman both testified that disc

complaints typically correlate to the same side as the protrusion. Dr. Dellanger

testified that Dore’s complaints were at the right side of the neck and upper shoulder.

Dr. Kenneth L. Fournet, a general practitioner who treated Dore, consistently noted

right-sided complaints. Finally, Dr. Cobb, an orthopaedic surgeon, noted that Dore

was complaining of radiating pain into the right arm.

Given Dore’s atypical symptomology, it was his burden to prove, through his

4

own credible testimony or otherwise, that his medical condition was not one of the

typical variety. The WCJ determined that Dore failed to carry that burden due to his

lack of credibility. There is sufficient evidence to make this credibility determination

reasonable.

Dore had a prior judgment against him for workers’ compensation fraud and

a prior drug conviction. Further, Dore’s testimony is inconsistent. The testimony of

Mark Hebert, the yard foreman and Dore’s supervisor, was in direct contradiction to

Dore’s regarding the time he went to the emergency room. The WCJ found that Dore

lied to his work supervisor in order to avoid answering questions regarding the taking

of a drug test. Further, Dore’s testimony is contradicted by the medical records from

his emergency room visit. Dore testified that he told the emergency room staff that

his accident was work related. Those records show Dore to be a self paying patient

rather than a workers’ compensation patient. The WCJ believed that Dore failed to

disclose the origin of his injury in order to avoid a drug test. The WCJ based her

belief on the fact that it was explained to every employee of the employer that when

a person presents to an emergency room for a work related injury, he would be

subjected to a drug test.

Moreover, after learning that drug use was an issue in the case, Dore took a

drug test. The results of that test where found to be tainted, or “too clean,”as the

specimen was nearly tap water. Finally, the testimony of Dr. G. Douglas Sagrera, a

family and general practice physician who treated Dore, indicated that once Dore’s

previous injury had resolved, he attempted to obtain prescription for medications

which he did not need.

Dore attempts to show that the WCJ was unreasonable in her findings by

5

pointing to medical records from Dr. John Cobb and Dr. Ilyas Munchi. While those

records could have potentially helped Dore carry his burden of proving that his work

accident caused further disability, we shall not consider those records. Louisiana

Code of Civil Procedure Article 2164, in pertinent part, states, “ The appellate court

shall render any judgment which is just, legal, and proper upon the record on appeal.”

The medical records referenced by Dore were generated after the judgment

issued by the WCJ and were not admitted into evidence at trial. As this court is a

court of review, it is not this court’s proper function to admit evidence for the first

time without any consideration of that evidence at a lower level. As such, it would be

improper for this court to consider evidence not first weighed and ruled upon at the

trial level.

As stated above, Dore had the burden of proving that his atypical

symptomology was due to the work related accident. The only evidence offered to

carry that burden was his own testimony. Given that Dore’s testimony was reasonably

found to lack credibility, we cannot say that the WCJ’s ruling on Dore’s disability

was in error. Moreover, there was evidence in the record which would support a

finding that Dore was disabled for only a four day period following his injury. As

such, we affirm the WCJ’s ruling that Dore was not entitled to any further indemnity

or medical benefits beyond the emergency room visit and four days of disability.

ASSIGNMENT OF ERROR #2:

Dore contends the WCJ committed manifest error in finding the employer was

not arbitrary and capricious in its denial of his claim. This assignment of error also

lacks merit.

The rule is well settled that a worker’s compensation claimant is entitled to

6

penalties and attorney’s fees if benefits are withheld or terminated arbitrarily,

capriciously, or without probable cause. La.R.S. 23:1201 et. seq.

In assignment of error #1, we upheld the WCJ’s finding that Dore was not

entitled to any further indemnity or medical benefits beyond the emergency room visit

and four days of disability. The record indicates that the employer paid the medical

bills associated with Dore’s initial emergency room visit and for four days of

indemnity benefits following the injury. Even though there is evidence of serious

employer misconduct,1 there is no evidence that the employer denied any benefits to

Dore arbitrarily, capriciously or without probable cause. As such, this assignment of

error also lacks merit.

CONCLUSION:

Dore raised two assignments of error. We found that both assignments of error

raised are without merit. All costs of this appeal are to be paid by Dore.

AFFIRMED.

1

There is evidence in the record that S&S Coating Specialties, Inc. is a company where on-site drug
use was common and encouraged by the yard foreman, and whose manager/vice president is accused
of soliciting false statements against the injured worker and other illicit conduct. Neither the WCJ
nor this court were influenced by these allegations as the false statements made by the injured
worker’s co-employee were later recanted, and the other illicit activities are irrelevant to the issues
raised at trial or on appeal.

7