Keith Smith v. Boise Cascade, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1384

KEITH SMITH

VERSUS

BOISE CASCADE, LLC

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT # 3
PARISH OF CALCASIEU, NO. 07-09224
CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Jeffrey M. Cole
Plauche, Smith & Nieset
P.O. Drawer 1705
Lake Charles, LA 70602
Counsel for Defendant/Appellee:
Boise Cascade, L.L.C.

John E. Brown
Attorney at Law
P. O. Box 1359
Lake Charles, LA 70602
Counsel for Claimant/Appellant:
Keith Smith

PICKETT, J.

The claimant, Keith Smith, appeals a decision by a Workers’ Compensation

Judge (WCJ) dismissing his claim for weekly benefits and medical care. We affirm

the decision of the WCJ.

FACTS

The claimant, Keith Smith, began working for the defendant, Boise Cascade,

May 3, 1999. Todd Carlock, the Boise Emergency Medical Technician (EMT),

testified, in deposition, that on June 19, 2007, Mr. Smith came to him and told him

he wanted to go home to see his doctor because he was having stomach pains. Mr.

Carlock stated that Mr. Smith neither mentioned having back pain nor reported any

incident at work causing his back to just “seize up.” Subsequently, Mr. Smith applied

for short-term disability. He filled out a short term disability claim form on July 6,

2007. On that form, Mr. Smith indicated his last day of work was June 19, 2007; that

he left work because of an “illness;” and that, at the time, he had “chest pain and

pressure and severe back pain.” The doctor’s portion of the form, which was filled

out by Dr. Ariel Ton, noted that in January 2006, Mr. Smith consulted her for “acute

back pain” of unknown origin. Mr. Smith also applied for short term disability

benefits at that time. The 2006 disability claim form indicates that Mr. Smith’s

disability was not due to his employment. On the current disability claim form, Dr.

Ton did not attribute Mr. Smith’s 2007 symptoms to any work injury, rather she noted

that X-rays showed “degenerative changes at L5-S1—possible disc degenerative

change/herniation of nucleus pulposus.”

Mr. Carlock testified that during 2006 and through July 2007, the claimant, Mr.

Smith, neither reported an on the job injury nor did he file for workers’ compensation

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benefits. It was not until his short-term disability benefits were about to expire, that

Mr. Smith filed for workers’ compensation benefits.

LAW AND DISCUSSION

On appeal, the claimant seeks review by this court of a decision by a Workers’

Compensation Judge (WCJ) finding that he failed to prove he sustained his burden

of proving he was involved in an on-the-job accident resulting in a disabling injury.

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

117, the supreme court 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 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.”

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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
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).

As stated in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989)
(citations omitted):

When findings are based on determinations
regarding the credibility of witnesses, the manifest
error--clearly wrong standard demands great deference to
the trier of fact’s findings; for only the factfinder can be
aware of the variations in demeanor and tone of voice that
bear so heavily on the listener's understanding and belief in
what is said. Where documents or objective evidence so

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contradict the witness’s story, or the story itself is so
internally inconsistent or implausible on its face, that a
reasonable fact finder would not credit the witness’s story,
the court of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a
credibility determination. But where such factors are not
present, and a factfinder’s finding is based on its decision
to credit the testimony of one of two or more witnesses,
that finding can virtually never be manifestly erroneous or
clearly wrong.

Bigge v. The Lemoine Co., 04-1191, pp. 2-4 (La.App. 3 Cir. 3/2/05), 896
So.2d 269, 271-72.

Monceaux v. R & R Const., Inc., 05-533, pp. 5-7 (La.App. 3 Cir. 12/30/05), 919 So.2d

795,798-801(emphasis ours), writs denied, 06-585 (La. 5/5/06), 927 So.2d 325,

06-636 (La. 5/5/06), 927 So.2d 317.

On his first visit to Dr. Ton on June 19, 2007, Mr. Smith complained of

pressure in his chest which was occasionally accompanied by sharp pain, nausea, and

diarrhea. Although Mr. Smith complained of back pain to Dr. Ton on his June 28,

2007 visit, and stated that the pain had been present for that last one to two weeks,

he did not relate the back pain to an accident at work; nor did he relate the back pain

to work accident on his visits on July 10, July 19, August 2, or October 12, 2007. By

the August visit, Dr. Ton had concluded that Mr. Smith was suffering from chronic

lower back pain and she referred him to Dr.Troy M. Vaughn, a neurosurgeon. Dr.

Vaughn ordered a discogram which he found normal, concluded that Mr. Smith was

not a candidate for surgery, and recommended supportive treatment. He opined that

Mr. Smith would reach maximum medical improvement in approximately six months.

In her oral reasons for judgment the WCJ stated:

Mr. Smith was quite talkative and was able to explain work duties, etc.
He testified that on the date at issue his job was a seventh hand. At trial,
he testified he was driving a Bobcat and at some point during the course
of the day as he got off the Bobcat he felt a severe, sharp pain in his

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back. He testified his back/chest started hurting. He told his foreman
he was hurting and he was going home.

...

[T]he court finds that Mr. Smith doesn’t actually know what happened
to his back. He had never reported a work accident; in fact, he selected
short-term disability benefits and when they ran out, he then filed a
workers’ compensation claim. Mr. Smith wants the Court to believe his
view of the accident was confusing enough that his inconsistent
testimony is believable; however, there are too many inconsistencies.
He wants the Court to believe he received no orientation on workers’
compensation cases and he did not understand how to report an accident,
but what is most telling is his trial testimony that he was hurt while
exiting the Bobcat but other evidence shows he was hurt while pushing
heavy carts. Mr. Smith’s testimony alone discredits or casts serious
doubt on his version of the worker’s compensation incident. Further,
the alleged incident, he did not mention a work incident either to a
supervisor or to the on site nurse; in fact, [he] did [. . .] not mention a
work incident to his physician.

Mr. Richard Franklin, who was Mr. Smith’s shift supervisor, testified that Mr.

Smith made no report of an accident to him on June 19, 2007. He further stated that

Mr. Smith did not complain of back pain at that time nor any time the previous year.

In sum, the WCJ was presented, on one hand, with Mr. Smith’s inconsistent

versions of his alleged accident, the facts that he failed to report an accident to

anyone at Boise Cascade or to any of his physicians consulted through 2007, and that

he applied for short term disability benefits immediately following his ceasing to

work. On the other hand the WCJ heard that Mr. Smith started complaining of low

back pain on June 28, 2007, and that some doctors, consulted after suit was filed,

concluded that Mr. Smith had suffered a work related injury on June 19, 2007 (i.e.,

Dr. Erich W. Wolf, II).

Considering the record as a whole, especially the conflicting testimony and

evidence, and the standard of review—i.e. that “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

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record viewed in its entirety” [Monceaux 919 So.2d at 799], we cannot say the WCJ

clearly erred in this case.

Accordingly, for the reasons stated, the decision of the Workers’ Compensation

Judge is affirmed. Costs of this appeal are assessed to the appellant, Keith Smith.

AFFIRMED.

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