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

AFFIRMED.

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, J.

The claimant, David Bailey, appeals a judgment of the trial court denying his

claim for workers’ compensation benefits. We affirm the judgment of the workers’

compensation judge.

ISSUE IN DISPUTE

The linchpin of this case is whether the claimant sustained an on-the-job injury

to his back in an unwitnessed accident at Ft. Polk. The claimant’s first problem is

that the record reveals that the claimant was inconsistent in his allegations. He

claims, in his appellate brief, he sustained an on-the-job injury on August 24, 2006.

However, on the WC-1008 he filed on November 17, 2006, he reported the date of

the accident/injury as September 6, 2006. In his trial testimony, he once again

claimed his accident was on August 24, 2006.

LAW AND FACTS

The claimant claims that he injured his back near lunch-time on the morning

of August 24, 2006, while lifting an eighty-pound roll of roofing felt out the back of

a truck at a job site on Ft. Polk. He testified that he immediately told a co-worker,

with whom he was working at the time, Timothy Pelt, of the accident, then called his

supervisor, Kenny Hatchett, and reported that he had injured his back. The claimant

stated that Mr. Hatchett told him to go get something to eat and to see if he felt better

after lunch. The claimant went to Burger King and got a Coke and then went home.

He stated that he went to see Dr. Natalie Phillips, his family physician, the next day.

Timothy Pelt testified that he neither witnessed an accident involving the

claimant, nor did the claimant tell him that he sustained an accident at work.

Furthermore, Mr. Pelt, who keeps a journal of his work assignments, denies working

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with the claimant on the alleged day of the accident (August 24, 2006). Mr. Pelt did

remember the claimant complaining of back pain “pretty often,” but stated the

claimant never related the back pain to an on-the-job injury. Furthermore, Mr. Pelt

could not place any particular time frame to the claimant’s complaints of back pain.

Mr. Pelt did remember the claimant talking about an automobile accident in

Alexandria, but, once again, Mr. Pelt could not remember the time frame involving

that accident.

Kenneth Hatchett, the claimant’s supervisor, testified that the claimant never

reported an on-the-job injury to him and that if the claimant would have done so, he

(Hatchett) would have instituted a report of injury form detailing the events of any

alleged accident.

While Dr. Phillips’ office records substantiate the claimant’s visit of August

25, 2006, they contain no mention any complaint by the claimant of any on-the-job

accident the previous day. The claimant’s chief complaints on the visit were diarrhea

of two-three weeks duration, nausea and vomiting daily, weight loss, insomnia and

back pain. The records also document a family history of neurofibromatosis, and it

appears that the claimant has “café au lait” spots.

The claimant argues that his exhibit #21, Dr. Phillips’ referral letter to

Louisiana State University Medical Center-Shreveport (LSUMC-S), supports his

claim in that in her letter Dr. Phillips stated: “He initially presented on 08/25/06 with

this complaint [(low back pain)].” Attached to claimant’s exhibit #21 is his exhibit

#20, the actual referral form to LSUMC-S, which states that Dr. Phillips suspects that

the claimant is suffering from “Chronic low back pain.” Neither the referral letter nor

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the referral form mention a work-related accident in connection with the claimant’s

complaint.

The claimant’s records from LSUMC-S state that the claimant “reports 4

wheeler accident 5 years ago and also blunt trauma to the tailbone when he was a

child.” The records report the location of the claimant’s symptoms as being in his

“Coccyx, Lumbar region of back, [and] sacrum.” Further, the records state: “Problem

is chronic, patient stated the symptom was similar to before.”

The first documented report of an on-the-job injury appears in the records of

Dr. Clark Gunderson who examined the claimant on referral from the claimant’s

attorney on November 30, 2006.

The standard for reviewing a workers’ compensation judge’s (WCJ) decision

was recently reviewed by this court in Butterfield v. Turner Industries, 06-1098. pp.

3-4 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, 479, writ denied, 07-507 (La. 4/27/07),

955 So.2d 692:

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

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

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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).

This court, in Monceaux v. R & R Const., Inc., 05-533, p. 6
(La.App. 3 Cir. 12/30/05), 919 So.2d 795, 799-800, writs denied,
06-585 (La.5/5/06), 927 So.2d 325, 06-636 (La.5/5/06), 927 So.2d 317,
noted the following:

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

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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).

(emphasis added.)

Therefore, the standard of review in this case is clearly
wrong/manifest error.

Considering the record as a whole, and especially the discrepancy in the

claimant’s testimony, the lack of support of his allegation of an on-the-job accident

and injury by (1)his co-workers, (2) the medical records from his treating physician

and (3) the medical records from LSUMC-S, we cannot say the WCJ was clearly

wrong in finding that the claimant failed to meet his burden to prove a work-related

injury by a preponderance of the evidence.

Accordingly, for the reasons stated, the judgment of the workers’ compensation

judge is affirmed. All costs of this appeal are assessed to the appellant, David Bailey.

AFFIRMED.

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