Johnny Brumfield v. Anthony Timberlands, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 08-380

JOHNNY BRUMFIELD

VERSUS

ANTHONY TIMBERLANDS, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 05-00730
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and Billy Howard Ezell,
Judges.

Cooks, Judge., Dissents and assigns written reasons.

AFFIRMED.

Randall Brian Keiser
Keiser Law Firm
P.O. Box 12358
Alexandria, LA 71315-2394
(318) 443-6168
Counsel for Defendant/Appellee:
Anthony Timberlands, Inc.

Johnny Brumfield
In Proper Person
P. O. Box 142
Many, LA 71449
(318) 256-3121

EZELL, JUDGE.

Johnny Brumfield appeals a judgment from the Office of Workers’

Compensation which denied him permanent and total disability benefits. For the

following reasons, we affirm.

FACTS

Mr. Brumfield was injured in 1994 while working for Anthony Timberlands,

Inc. He was attempting to clean a piece of equipment at the mill when his right hand

got caught in the motor. Ultimately, his thumb had to be amputated. He received the

maximum ten years of supplemental earnings benefits, which were terminated in

December 2004. Mr. Brumfield then filed a claim for permanent and total disability

benefits (PTD). Trial on the matter was held on December 20, 2007.

After hearing the testimony of Mr. and Mrs. Brumfield, the workers’

compensation judge (WCJ) denied Mr. Brumfield’s claim for PTD. Mr. Brumfield

appealed that decision to this court.

PERMANENT AND TOTAL DISABILITY

In denying Mr. Brumfield’s claim for PTD, the WCJ recognized that while Mr.

Brumfield experiences a lot of pain, that is not the only the factor entitling a worker

to PTD. The WCJ, relying on La.R.S. 23:1221, considered the testimony of Mr. and

Mrs. Brumfield that he receives income for cutting grass and found that Mr.

Brumfield was engaging in self-employment and not entitled to PTD.

To be entitled to PTD benefits, the claimant must prove that he is physically

unable to engage in any employment, regardless of the nature or character of the

employment. La.R.S. 23:1221(2). Additionally, the claimant is entitled to PTD:

[O]nly if the employee proves by clear and convincing evidence, unaided
by any presumption of disability, that the employee is physically unable
to engage in any employment or self-employment, regardless of the
nature or character of the employment or self-employment, including,

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but not limited to any and all odd-lot employment, sheltered
employment, or employment while working in any pain, notwithstanding
the location or availability of any such employment or self-employment.

La.R.S. 23:1221(2)(c)(emphasis supplied).

The clear and convincing standard for proving that claimant is physically

unable to engage in any employment or self-employment, as required to obtain PTD,

is a heavier burden of proof than the usual civil preponderance of evidence standard,

but less burdensome than the beyond a reasonable doubt standard used in criminal

law. Comeaux v. City of Crowley, 01-32 (La. 7/3/01), 793 So.2d 1215.

The only people to testify at trial were Mr. Brumfield and his wife. They both

testified as to the pain that Mr. Brumfield suffers with on a daily basis and that he can

not physically work. At the time of trial, Mr. Brumfield was still in treatment with

a pain management specialist, Dr. Stephen Katz. A list of the medications he was

taking was introduced into the record.

Both Mr. and Mrs. Brumfield testified that he does on occasion cut grass for

family and friends. Sometimes they pay him. It was this testimony that prompted the

WCJ to find that Mr. Brumfield was capable of some type of work and not entitled

to PTD.

While we may not agree that occasionally cutting a yard is consistent work that

would be considered employment sufficient to preclude an award of PTD, we find

that the evidence does not clearly and convincingly establish that Mr. Brumfield is

entitled to PTD.

In order to prove a disability by clear and convincing evidence, the claimant

must present objective medical evidence. Bailey v. Smelser Oil & Gas, Inc., 620

So.2d 277 (La.1993); Stoute v. Petroleum Ctr., 07-1533 (La.App. 3 Cir. 4/2/08), 980

So.2d 818; Williams v. Children’s Hosp., 07-464 (La.App. 4 Cir. 1/23/08), ___ So.2d

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___ .

During the presentation of evidence, trial counsel for Mr. Brumfield indicated

that he would rely on the medical records introduced by Anthony Timberlands, Inc.

At the end of the presentation of Mr. Brumfield’s case, Anthony Timberlands, Inc.

requested that Mr. Brumfield’s case be dismissed due to lack of evidence of the right

to PTD. The WCJ granted this motion.

There is absolutely no medical evidence in the record to indicate that Mr.

Brumfield is physically unable to engage in any employment. We agree with the

WCJ that the evidence does not establish Mr. Brumfield’s right to PTD. Therefore,

we affirm the judgment of the Office of Workers’ Compensation. Costs of this appeal

are assessed to Johnny Brumfield.

AFFIRMED.

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COURT OF APPEAL

THIRD CIRCUIT

STATE OF LOUISIANA

08-380

JOHNNY BRUMFIELD

VERSUS

ANTHONY TIMBERLANDS, INC.

COOKS, J. DISSENTS.

I agree with that portion of the majority opinion finding occasional grass

cutting is not “consistent work” sufficient to preclude an award of PTD; and,

therefore, the WCJ erred in holding so in this case.

However, I disagree with the majority’s conclusion that because Mr. Brumfield

failed to introduce objective medical evidence he fails to prove his disability by clear

and convincing evidence. The opinion references Bailey v. Smelser, 620 So.2d 277

(La. 1983); Stoute v. Petroleum Ctr., 980 So.2d 818 (La. App. 3 Cir. 2008).

The Plaintiff’s and his wife’s testimony established that he is unable to work

because of the medications he is taking. The exhibit, listing the medications he is

taking, was introduced into evidence and corroborated his testimony and that of his

wife. Mr. and Mrs. Brumfield’s testimony, that he must take large doses of

medication daily, including strong pain medication, and that the daily effects of such

medications render him unable to work, stands uncontradicted. Nothing in the record

indicates that either of the witnesses’ testimony was not credible nor does the record,

in any way, indicate that the WCJ did not believe the Brumfields’ testimony.

Involuntary dismissals are recognized in La. C. Civ. P. Art. 1672(B) which

states:

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In an action tried by the court without a jury, after the plaintiff has
completed the presentation of his evidence, any party, without waiving
his right to offer evidence in the event the motion is not granted, may
move for a dismissal of the action as to him on the ground that upon the
facts and law, the plaintiff has shown no right to relief. The court
may then determine the facts and render judgment against the plaintiff
and in favor of the moving party or may decline to render any judgment
until the close of all the evidence. (Emphasis added)

Mr. Brumfield established, at the close of his case, that he had a right to relief. His

testimony established he suffered a work-related disabling injury and that defendant

was his employer at the time of the injury. The WCJ granted the involuntary dismissal

because he found that Mr. Brumfield had not proven he is entitled to the relief sought.

Not only was this determination improperly based upon an erroneous application of

the facts, i.e. that Plaintiff’s mowing neighbors’ and relatives’ grass was “self

employment” such as would deny Plaintiff’s PTD claim, but the law does not sanction

the premature grant of involuntary dismissal at this stage of the proceedings,

particularly considering the only evidence in the record is uncontradicted and

establishes that Mr. Brumfield’s daily consumption of prescribed pain medication

prevents him from seeking “any meaningful” employment. The question of Mr.

Brumfield’s ultimate entitlement to PTD should follow only “after a full trial on the

merits and after due consideration is given to all of the testimony and documentary

evidence admitted at trial”. Brown v. Paducah Rigging, Inc., 757 So.2d 79 (La. App.

5 Cir. 2000). As the court in Brown noted, “[w]hile a hearing officer’s ruling on a

motion for involuntary dismissal should not be disturbed absent manifest error, an

involuntary dismissal is not a substitute for a full trial on the merits.” Brown, Supra.

and Trench v. Harmony Construction, Co., 672 So.2d 330 (La. App. 1 Cir. 1996) writ

denied 674 So.2d 973 (La. 1996).

In Thomas v. Irving Place Rehabilitation Care Center, 771 So.2d 820 (La.

App. 2 Cir. 2000), the Court of Appeal Second Circuit upheld the WCJ’s denial of the

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motion for involuntary dismissal at the close of Plaintiff’s case. In that case the

Plaintiff had not introduced any medical depositions when defendant moved for

involuntary dismissal alleging she failed to provide sufficient evidence to meet her

burden of proof. The Second Circuit expressly stated “[w]e observe that the

testimony of a worker’s compensation claimant may suffice to establish a work-

related accident and resulting injury, provided there is no other evidence sufficient

to discredit or cast doubt upon the claimant’s version of the incident and the

claimant’s testimony is corroborated by circumstances following the incident.”

Thomas, Supra. and Tippet v. Mid-State Wood Preserves, 756 So.2d 659 (La. App.

2d Cir. 2000) cited therein. This Court has held that “The trial court’s grant of an

involuntary dismissal is proper if, after weighing and evaluating all of the evidence

that has been presented by the plaintiff, the trial court determines that the plaintiff has

failed to prove his claim by a preponderance of the evidence”. Touchet v. Hampton,

950 So.2d 895 (La. App. 3 Cir. 2007) rehearing denied. The record reflects Mr.

Brumfield proved, at the very least, by credible and uncontradicted testimony and

exhibit, that he had a right to relief and that he is entitled to PTD. At the time the

dismissal was granted, the record evidence preponderated in favor of his claim

benefits; and, ultimately if left unrefuted would suffice to establish by clear and

convincing evidence that he is entitled to an award of PTD. Application of the clear

and convincing burden of proof imposed upon a claimant in the ultimate

determination of entitlement to PTD cannot be imposed upon the Plaintiff in the

ruling on a Motion For Involuntary Dismissal for which the appropriate standard is

preponderance of the evidence. Touchet v. Hampton, 950 So.2d 895 (La. App. 3 Cir.

2007) See also Kite v. Carter, 856 So.2d 1271 (la. App. 3 Cir. 2003).

I would reverse the WCJ’s decision and remand the case for further

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proceedings.

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