Shane M. Sartelle v. Footlocker

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-579

SHANE M. SARTELLE

VERSUS

FOOTLOCKER

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION
PARISH OF LAFAYETTE, DISTRICT 04, NO. 05-06332
HONORABLE SHARON M. MORROW, WORKERS’ COMPENSATION
JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED.

Laurie W. Maschek
5100 Village Walk, Suite 300
Covington, LA 70433
Counsel for Defendant-Appellant:
Footlocker

Scott Webre
556 Jefferson Street, Suite 500
Lafayette, LA 70501
Counsel for Plaintiff-Appellee:
Shane M. Sartelle

PAINTER, Judge.

In this workers’ compensation suit, Defendant, Footlocker, appeals the award

of benefits, penalties, and attorney’s fees to Plaintiff, Shane M. Sartelle.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Sartelle, began employment with Footlocker in June of 2004. He was

employed as an assistant manager with Footlocker on the date in question. Plaintiff

alleges that on July 6, 2005, in the course and scope of his employment, he fell from

a rolling ladder and struck a wall of shoes. The accident was unwitnessed. Plaintiff

has not worked since the accident, with the exception of approximately five

engagements with a musical band of which he was a member. Following a trial on

the merits, Plaintiff was awarded benefits as well as a $2,000.00 penalty for failure

to authorize treatment, a $2,000.00 penalty for failure to pay indemnity benefits, and

$7,500.00 in attorney’s fees. Defendant appeals. Finding no manifest error in the

judgment of the workers’ compensation judge, we affirm.

DISCUSSION

Defendant first alleges that the workers’ compensation judge erred in finding

that Plaintiff met his burden of proving accident and injury. As to this issue, we

stated in Phillips v. Coca-Cola Bottling Co. United, 06-323, pp. 4-5 (La.App. 3 Cir

9/27/06), 939 So.2d 673, 675-77 (alteration and emphasis in original):

This court, in Monceaux v. R & R Construction, Inc., 05-533
(La.App. 3 Cir. 12/30/05), 919 So.2d 795, writs denied, 06-0585
(La.5/5/06), 927 So.2d 325, 06-0636 (La.5/5/06), 927 So.2d 317, had
occasion to address both the standard of review and a claimant’s burden
of proof in workers’ compensation cases involving unwitnessed
accidents. In that case, we said:

In Dean v. Southmark Construction, 03-1051, p. 7
(La.7/6/04), 879 So.2d 112, 117, the supreme court

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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 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
[sic] 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

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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 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).

In this case, the workers’ compensation judge made a determination that

Plaintiff was “extremely credible.” Defendant alleges that this finding is manifestly

erroneous in light of evidence of Plaintiff’s admitted drug use and the fact that he was

twenty-five years old at the time of trial but could not remember most details of his

life. We find Defendant’s argument to be without merit. Plaintiff testified that he

was climbing up the ladder to get a shoe from the opposite side of the wall when the

ladder slid and he slid down the ladder, landing on both feet and hitting the wall

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behind him with his back. A co-worker, Corey Hite, testified in deposition that he

heard the noise and asked Plaintiff if he was okay. Plaintiff did not report the

incident immediately because, according to Plaintiff, his supervisor was on vacation.

However, he reported the incident a week later.

After examining the record, we cannot say that the workers’ compensation

judge was manifestly erroneous in her conclusion that Plaintiff proved the occurrence

of a work-related accident. Although unwitnessed, Plaintiff testified to its occurrence

and the onset of pain. We find, as did the workers’ compensation judge, that the

inconsistencies pointed out by Defendant do not rise to the level of “serious doubt.”

The workers’ compensation judge made credibility determinations in favor of

Plaintiff, which we find no reason to disturb, and we uphold the finding of a work-

related accident.

Defendant next alleges that the workers’ compensation judge erred in holding

that Plaintiff’s physical condition was causally related to the alleged work accident.

It is well settled that in workers’ compensation cases, the “claimant has the burden

of showing that more probably than not an employment accident occurred and that

it had a causal relation to the disability suffered.” Baker v. Conagra Broiler Co.,

93-1230, p. 8 (La.App. 3 Cir. 5/4/94), 640 So.2d 494, 498, writ denied, 94-1435 (La.

9/23/94), 642 So.2d 1289. In Mouton v. Walgreen Co., 07-1403, p. 7 (La.App. 3 Cir.

4/2/08), 981 So.2d 75, 84 (alteration in original), we noted:

In Wyble v. Acadiana Preparatory School, 07-91, p. 6 (La.App.
3 Cir. 5/2/07), 956 So.2d 722, 726, writ denied, 07-1178 (La.9/14/07),
963 So.2d 1004, this court explained that “[a] preexisting medical
condition will not bar an employee from recovery if the employee
establishes that the work-related accident aggravated, accelerated, or
combined with the condition to cause the disability for which
compensation is claimed.” “Aggravation of a preexisting injury may
constitute a disabling injury when, for example, the plaintiff begins to

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suffer new symptoms after the second workplace accident.” Tate v.
Cabot Corp., 01-1652, p. 6 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 461,
writ denied, 02-2150 (La.11/22/02), 829 So.2d 1044. Whether a causal
relationship exists between the disability and the employment is a
question of fact that will not be reversed on appeal absent manifest error.
Id.

Plaintiff was involved in a car wreck in November of 2002, in which his back

was injured. He was injured again in another car wreck shortly after the 2002 wreck.

He was diagnosed with a herniated disc at the L-5 level. Plaintiff alleges that

Defendant was aware of his pre-existing back problems. Plaintiff further testified that

he became addicted to pain medication after the car wrecks but that he felt surgery

was not a viable option until after the subject accident. The workers’ compensation

judge noted that Plaintiff’s medical treatment was essentially on hold pending

surgery.

Both Drs. Charles Olivier and John Cobb, orthopedic surgeons, unequivocally

recommended a disc excision at L5-S1 with a fusion. Dr. Cobb testified in deposition

that something changed in Plaintiff’s condition after the July 6, 2005 incident and that

the disc did not seem to be causing compression in the 2003 MRI. Dr. Cobb testified

that it was his opinion that the subject incident was the precipitating cause of

Plaintiff’s new complaints. Dr. Douglas Bernard, who saw Plaintiff on April 14,

2006, at the request of Defendant, testified as to his opinion that the subject accident

did not contribute to the need for surgery. By all accounts, claimant was able to

perform his job duties as assistant manager prior to the accident and despite his pre-

existing condition but was unable to after. Further, Plaintiff’s two band mates

testified that since the subject incident, Plaintiff has been unable to load or unload his

equipment. The workers’ compensation judge chose to discredit the testimony of Dr.

Bernard based on other evidence presented and found that medical and lay testimony

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confirmed that the subject accident aggravated the pre-existing back problems to the

point that they became disabling and surgery became necessary. “It is within the

province of the workers’ compensation judge to assess the credibility of the

physicians who examined and/or treated [the claimant].” Smith v. Town of Olla, 07-

384, p. 13 (La.App. 3 Cir. 10/3/07), 966 So.2d 1165, 1174. Thus, we find no error

on the workers’ compensation judge’s part in finding the accident of July 6, 2005,

aggravated and combined with a pre-existing condition to produce Plaintiff’s injuries

and find no merit in Defendant’s arguments on this point.

Defendant next argues that the workers’ compensation judge erred in awarding

penalties and attorney’s fees. We have noted Mouton, 981 So.2d at 85:

To avoid the imposition of penalties and attorney fees, the
employer must present sufficient factual and medical information to
reasonably counter the evidence provided by the claimant. Humphrey
v. Icee Distributors, 06-549 (La.App. 3 Cir. 11/29/06), 944 So.2d 783,
writ denied, 07-7 (La.3/9/07), 949 So.2d 442. An award of penalties and
attorney fees will not be overturned on appeal absent manifest error.
Frederick [v. Port Aggregates, Inc., 07-552 (La.App. 3 Cir. 10/31/07)],
968 So.2d 1169.

The workers’ compensation judge noted that the adjuster testified that she

never spoke with the Footlocker employees in initially investigating the claim. We

agree with the workers’ compensation judge that by February of 2007, when the

depositions of Plaintiff’s girlfriend and band mates, as well as the depositions of Drs.

Bernard and Cobb, had been taken, Defendant had “more than sufficient evidence that

Sartelle’s claim was compensable.” Thus, we find no manifest error and affirm the

award of penalties and attorney’s fees.

Defendant’s final argument is that the workers’ compensation judge failed to

consider its defenses under La.R.S. 23:1208 in that it presented an “overwhelming

preponderance of the evidence that Sartelle made false statements” for the purpose

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of receiving benefits. Plaintiff urges us not to consider this assignment of error since

Defendant failed to specifically plead it and urged it for the first time in pre-trial

briefs to the workers’ compensation judge. As alleged by Defendant, we note that the

workers’ compensation judge made no ruling in this regard. As we have upheld the

workers’ compensation judge’s determinations as to the credibility of Plaintiff, we

find it unnecessary to address this argument.

DECREE

For the reasons assigned above, the judgment of the workers’ compensation

judge is affirmed in its entirety. All costs of this appeal are assessed to Defendant-

Appellant, Footlocker.

AFFIRMED.

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