David Bailey v. Aecom

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1021

DAVID BAILEY

VERSUS

AECOM
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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT # 2
PARISH OF RAPIDES, NO. 06-07889
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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ON REHEARING

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett, and
Billy Howard Ezell, Judges.

AFFIRMED.

Thibodeaux, C.J., dissents and assigns written reasons.

George A. Flournoy
Flournoy, Doggett & Losavio
P. O. Box 1270
Alexandria, LA 71309-1270
Counsel for Claimant/Appellant:
David Bailey

James J. Hautot, Jr.
Judice & Adley
P. O. Drawer 51769
Lafayette, LA 70503
Counsel for Defendant/Appellee:
AECOM

Pickett, Judge.

For the reasons assigned in the opinion issued after original hearing of this

matter, the judgment of the trial court is affirmed. Any additional costs incurred on

rehearing are assessed to the claimant-appellant.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1021

DAVID BAILEY

VERSUS

AECOM

THIBODEAUX, Chief Judge, dissenting.

I am convinced that, when reviewing this record in its entirety, the

workers’ compensation judge was clearly wrong in his findings that the claimant

failed to meet his burden of proving a work-related injury by a preponderance of the

evidence. While the claimant may not have unequivocally articulated to Dr. Phillips

the occurrence of a work-related injury on his first visit, this lack of specificity is not

fatal. The physical, objective evidence of injury is, in my view, overwhelming in this

case, notwithstanding the self-serving assertions of the employer’s witnesses. It is

clear that where documents or objective evidence contradicts a witness’ story, a court

of appeal may find manifest error even in a finding supposedly based upon a

credibility determination. Rosell v. ESCO, 549 So.2d 840 (La.1989); Butler v. Zapata

Haynie Corp., 92-71 (La.App. 3 Cir. 2/23/94), 633 So.2d 1274.

While the majority cites discrepancies in the claimant’s testimony, these

inconsistencies are really inconsequential and unintentional, just as they were in

Richard v. Temple-Inland, 625 So.2d 335 (La.App. 3 Cir. 1993). The majority also

cites the claimant’s lack of support of an on-the-job accident. As I have stated above,

the objective evidence of injury militates against this expressed lack of support.

Further, Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992) focuses on

serious doubt being cast upon the worker’s version of the accident. No such serious

doubt exists in this case, particularly when the claimant’s version is clearly

corroborated by both medical and lay testimony.

I am aware that more often than not a fact finder’s findings will be given

deference. “Certainly, the fact finder should be accorded great latitude and discretion,

but discretion must always be buttressed by sound judgment. It is not immutable.”

Butler, 633 So.2d at 1279. The judgment in this case was undermined by a lack of

sound judgment.

For the foregoing reasons, I respectfully dissent.

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