J. C. White, Jr. v. Ratcliff Construction Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-0705

J. C. WHITE, JR.

VERSUS

RATCLIFF CONSTRUCTION COMPANY, LLC
AND THE GRAY INSURANCE COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2
PARISH OF RAPIDES, NO. 06-08361
HONORABLE JAMES L. BRADDOCK
WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and James T. Genovese, Judges.

REVERSED AND RENDERED.

J. C. White, Jr.
907 6th Street
Colfax, LA 71417
(318) 627-2453
IN PROPER PERSON

Eric J. Waltner
Allen & Gooch
Post Office Drawer 3768
Lafayette, LA 70502-3768
(337) 291-1400
COUNSEL FOR DEFENDANTS/APPELLANTS:
Ratcliff Construction Company, LLC and
The Gray Insurance Company

PETERS, J.

The defendants, Ratcliff Construction Company and The Gray Insurance

Company, appeal the workers’ compensation judge’s finding that the plaintiff, J. C.

White, Jr., proved that he suffered a work-related injury to his left shoulder and that

he is entitled to indemnity benefits even though his doctor had released him to work

with no restrictions. For the following reasons, we reverse and render judgment in

favor of Ratcliff Construction Company and The Gray Insurance Company.

Ratcliff Construction Company (Ratcliff) hired J. C. White, Jr. to work as a

carpenter on its construction projects on September 18, 2006. White asserts in this

litigation that within two weeks after going to work for Ratcliff, he suffered a work-

related injury to his left shoulder while framing in a porch. White did not

immediately report his accident and injury to his employer. Instead, he continued to

work without physical complaint until fired by his employer on November 3, 2006.

White sought medical attention for his shoulder for the first time on November

6, 2006, when he was examined by Dr. Gordon Webb, a physician at Louisiana

Occupational Health Services Clinic in Alexandria, Louisiana. When completing the

history questionaire provided by Dr. Webb, White could not remember the date of his

injury. Dr. Webb performed a physical examination, found no evidence of an acute

injury, and released White to his regular duties.

Two days later, on November 8, 2006, Dr. Bruce Craig, a physician at the

Walk-In Medical Clinic in Alexandria, Louisiana, examined White and concluded

that he suffered from chronic shoulder and arm pain. Dr. Craig prescribed

medication. At a follow-up visit on December 1, 2006, Dr. Craig recommended that

White participate in physical therapy and that an MRI be performed.

At the trial of White’s claim for workers’ compensation benefits, penalties, and

attorney’s fees, Ratcliff asserted that White did not suffer a work-related injury during

his employment with the company. In doing so, Ratcliff pointed out that White had

a history of injuries to his shoulder. After considering all of the evidence, the

workers’ compensation judge (WCJ) concluded that White had sustained a work-

related injury; that he was entitled to weekly indemnity benefits at the rate of $325.00

from November 6, 2006, forward; and that he was entitled to the payment of all past

medical treatment and to all reasonable, necessary, and related medical treatment by

the physician of his choice. However, the WCJ rejected White’s request for penalties

and attorney’s fees. Thereafter, Ratcliff perfected this appeal, asserting two

assignments of error:

1) The workers’ compensation judge committed error, either
manifest or legal, in holding that White satisfied his burden
of establishing a compensable accident;

2) The workers’ compensation judge committed error, either
manifest or legal, in holding that White was entitled to
indemnity benefits during the time period that he was
released to full duty work.

Because we find merit in the first assignment of error, we do not consider the

second assignment of error.

Assignment of Error Number One

Louisiana Revised Statutes 23:1021(A) defines “accident” as an “unexpected

or unforeseen 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.” “[T]he plaintiff-worker in a compensation action has the burden of

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establishing a work-related accident by a preponderance of the evidence.” Bruno v.

Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992).

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, Worker’s Compensation, § 253 (2d
Ed.1980). Corroboration of the worker’s testimony may be provided by
testimony of fellow workers, spouses or friends. Malone and 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 workers 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).

Id.

The findings of a workers’ compensation judge pertaining to the burden of proof and

witness credibility are factual in nature and will not be reversed on appeal unless

clearly wrong or manifestly erroneous. Id.

The WCJ found that White proved by a preponderance of the evidence that he

did in fact suffer a work-related accident. In doing so, the WCJ noted that

discrepancies existed in the different witnesses’s testimonies as to how the accident

occurred, but he found White’s version to be partially corroborated by one of the

witnesses as well as by Dr. Webb’s medical notes. The workers’ compensation judge

further relied on Bordelon v. Inland Industrial Contractors, 00-1132 (La.App. 3 Cir.

1/31/01), 783 So.2d 413, writ denied, 01-591 (La. 4/27/01), 791 So.2d 119, a case in

which this court affirmed a finding that the injured worker’s delay in reporting a

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work-related accident and discrepancies in how the accident occurred did not defeat

his claim that he suffered a work-related injury.

In this assignment of error, Ratcliff argues that White failed to establish by a

preponderance of the evidence that he suffered a work-related injury. Specifically,

Ratcliff argues that White failed to present any evidence that corroborated his version

of the alleged accident and that what little evidence he did present discredited and

cast serious doubts on his version. We agree.

We first note that the evidence concerning the occurrence of the accident itself

does not, standing alone, discharge White’s burden of proof on that issue. While

White did testify concerning how the accident occurred, his was not the only

testimony on this issue as the accident was not unwitnessed. One of the two co-

workers present at the time of the alleged accident denied that an accident occurred,

and the other’s testimony is both internally inconsistent and inconsistent with White’s

version of the accident.

White testified at trial that he injured his left shoulder while carrying a large

beam up a ladder with the assistance of a co-worker, Paul Maxwell. According to

White, he and Maxwell were each climbing adjacent ladders while holding separate

ends of a two-inch by twelve-inch by thirty-two-foot beam. White testified that

Maxwell progressed up his ladder quicker than he did and that by the time Maxwell

was at the top of his ladder, he was only half way up his.

According to White, while looking directly at him, Maxwell then pulled the

beam towards himself and attempted to jerk it out of White’s hand. When White

yelled, Maxwell observed that the beam was wobbling in White’s hand, but turned

away, causing the beam to flip. When White bent down to catch the beam before it

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hit the ground, he felt something pull loose from his shoulder to his elbow and was

jerked off the ladder. White testified that a co-worker helped Maxwell complete the

nailing of the beam.

Roderick Page, a co-worker who had also been fired by the company, testified

that he saw the accident occur. He testified that he was standing by White and

Maxwell as they were climbing the ladders and saw Maxwell drop his end.

According to Page, Maxwell’s end of the beam hit the ladder, and White, who was

still holding the other end, attempted to catch control of it before it fell on Maxwell.

He observed White catch the beam in the middle and without dropping his end. Page

testified that Maxwell and another employee finished nailing the beam in place.

When questioned by the WCJ, he could not remember when the accident occurred,

or even when he was fired by Ratcliff.

In his testimony, Paul Maxwell disputed White’s assertion that an accident

even occurred. Maxwell testified that neither he nor White had dropped or lost

control of the beam which according to him, weighed approximately one hundred

pounds. According to Maxwell, he and White nailed the board in place without

anyone’s help.

Thus, White’s version was that he caught the one hundred pound beam before

it hit the ground and this action on his part caused him to be jerked off the ladder.

However, neither Maxwell nor Page corroborated his claim that he fell from the

ladder. As pointed out by the WCJ, Page’s version of the accident is somewhat

confusing. According to Page, when Maxwell dropped his end, it struck one of the

ladders. He did not say which ladder. Page then suggested that White somehow

reached over and caught the beam in the middle without dropping his end and

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remained on the ladder. We find that the WCJ’s conclusion that Page supported

White’s version of how the accident occurred was manifestly erroneous.

Furthermore, while we agree that the decision in Bordelon supports a finding

that an injured worker’s delay in not reporting a work-related accident will not, by

itself, defeat a claim for workers’ compensation benefits, White’s action in not

immediately reporting the accident is suspect given the other evidence in the record.

White testified that from the accident forward, he could not use his left hand and that

he complained daily to Maxwell. However, he complained to no one else and he does

not suggest he could not perform his duties. He did suggest that because he only

performed carpentry work for two more weeks, he was able to continue to work.

According to White, most of the work that followed entailed nothing more than

hauling and grading dirt and driving a tractor.

Ronnie Kerr, White’s supervisor, testified that Ratcliff has a policy that any

accident must be reported to a supervisor immediately so that an accident report can

be completed, and that the company conducted bi-weekly safety meetings during

which this policy was consistently emphasized. The written safety manual which was

made available to every new employee included language that stated the required

company policy that an employee report an on-the-job accident to a supervisor

immediately, but no later than the end of the day when the injury occurred. Both he

and Maxwell testified that Ratcliff supervisors held regular safety meetings with the

employees, and the issue of immediate reporting of work-related accidents was

always brought up. While Kerr could not state specifically that White attended these

meetings (although he suggested that White probably did, given company policy),

Maxwell remembered specifically that White did attend the meetings. White

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acknowledged that on the day he was hired, he received a copy of the safety manual,

but claims to have never read it. While claiming that he was unable to use his left

hand after the accident, his stated reason for not immediately reporting the accident

to his supervisor was his fear of both he and Maxwell losing their jobs.

Kerr testified that on November 3, 2006, he confronted White about missing

work the previous day. According to Kerr, White was late that day, and when

confronted, White initially told him that he did not feel like working the day before.

However, he changed his story, telling Kerr that he had been arrested for driving

while intoxicated and that the day before he had been handling a matter pertaining to

his arrest. Initially, Kerr told White to go to work, but changed his mind after he

went to his office. He then called White back in and told him that he was not working

out as a carpenter. In fact, Kerr wanted to fire White because he believed White had

misrepresented his skills as a carpenter. The only reason he offered White a laborer’s

job was because he knew White and Maxwell rode to work together and he was

concerned that firing White would cause Maxwell to have to quit. When White

refused to work as a laborer, Kerr fired him. It was at this point, according to Kerr,

that White told him that he had injured his arm over a month before. Kerr told White

to report the injury to the office and made a notation on White’s payroll report.

According to White, he told Kerr that he had missed the previous day because

his shoulders were bothering him. He denied having missed work because of his

criminal charge, but suggested that he was fired because he had been arrested. He

acknowledged that Kerr told him that his position was being changed from carpenter

to laborer and his pay was being cut from $15.00 per hour to $7.00 per hour.

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According to White, he informed Kerr that he would rather quit or be fired than work

as a laborer.

White finally reported the accident as instructed by Kerr, but he did so three

days later. On November 6, 2006, White informed Christine Drerup, an accountant

with Ratcliff, that he had injured his arm and needed to see a doctor. However, in

identifying when the accident occurred, White informed Ms. Drerup that the accident

had occurred the week before. Ms. Drerup testified that she immediately sent him to

the Louisiana Occupational Health Services Clinic for treatment. Additionally, she

notified an adjustor at the employer’s insurer of the claimed accident and forwarded

an Employer Report of Injury/Illness to the adjustor. Thus, the evidence surrounding

the reporting issue is conflicting.

Finally, we also find that the WCJ erred in concluding that White’s version of

the accident was supported by Dr. Webb’s medical notes. In fact, as is the case with

the other evidence, all of the medical evidence in the record is replete with

inconsistencies and contradictions.

When he first went to work for Ratcliff, White completed a health

questionnaire wherein he denied having suffered any previous work-related injury

and denied having ever received any workers’ compensation or medical benefits.

These statements were false. In fact, White had injured both shoulders and suffered

multiple skull fractures in a work-related injury in 1998. As a result of the injuries

sustained in that accident, he received both weekly compensation benefits and

medical care. When confronted with these falsehoods, White testified that he had

answered the questions in the negative at Maxwell’s advice.

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When White first saw Dr. Webb, he completed a questionnaire wherein he

stated that the accident occurred when “on a Ladder Paul droped[sic] Lumber on His

End And I was holding The other End.” He also denied in the questionnaire that he

had ever suffered a prior injury to his left shoulder. Dr. Webb’s notes state that White

and a co-worker were holding a board, which the co-worker twisted and caused to fall

from White’s hands. His notes state that White grabbed and caught the board with

his fingertips, which jerked his entire left side and caused pain from his neck to his

forearm. Dr. Webb’s notes reflect White’s complaints to be pain in his shoulder,

especially at night, for the previous five to six weeks. He further noted that White

had suffered no previous injury to his shoulder or arm, other than a fracture to his

wrist when he was fifteen.

X-rays taken by Dr. Webb revealed a normal left shoulder, considering White’s

age. Dr. Webb did note in his records that the x-ray showed that the humerus was

apparently elevated within the acetabulum and that there appeared to be new bone

growth at the inferior glenoid. He concluded that White’s complaints were related

to an old left rotator cuff tear, that there was no evidence of an acute injury, and that

the problem was not work-related. He discharged White with no restrictions and no

scheduled return.

Two days later White presented himself to Dr. Craig, who saw him

twice—once on November 8 and again on December 1, 2006. Dr. Craig recorded in

his notes that White complained of left shoulder and arm pain caused when “[a] wide

board was dropped and [White] caught it and it jerked.” Dr. Craig initially prescribed

muscle relaxers and pain medication. When White returned in December, he related

the same complaints. Considering White’s complaints to be “chronic,” Dr. Craig

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recommended physical therapy and suggested that an MRI be performed. The MRI

was originally scheduled for December 6, 2006, but the record contains no

documentation to suggest that it was ever performed.

On March 21, 2007, White appeared at the Louisiana Health Care Services

Division, Huey P. Long Medical Center in Pineville, Louisiana, complaining of sharp,

throbbing pain radiating into his lower back and pain in his left shoulder. X-rays

taken of his lumbosacral spine, left shoulder, and left humerus were all normal. He

was diagnosed with osteoarthritis and received a steroid injection before being

discharged.

Thus, the medical evidence reflects no suggestion of a recent work-related

injury other than the statements of White himself. The findings of both Dr. Webb and

the physicians at Huey P. Long Medical Center were within normal limits, and neither

found that White was disabled for any reason. The suggestions of Dr. Craig are

inconclusive, given the lack of follow-up on the testing suggested. To the extent that

Dr. Webb’s notes support White’s assertion that he sustained an injury, they do so on

nothing more than the medical history given to the doctor by White. We find that the

WCJ erred in concluding that Dr. Webb’s medical notes supported White’s claim.

After reviewing the evidence, we find that it was manifestly erroneous for the

WCJ to find that White suffered a work-related accident. The evidence presented

casts serious doubts upon White’s version of the accident, and his testimony is not

corroborated by the circumstances following the alleged accident. Bruno, 593 So.2d

357.

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DISPOSITION

For the foregoing reasons, we reverse the judgment of the workers’

compensation judge and render judgment in favor of Ratcliff Construction Company

and The Gray Insurance Company dismissing the claim of J .C. White, Jr. for

workers’ compensation benefits. We assess all costs of these proceedings against J.

C. White, Jr.

REVERSED AND RENDERED.

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