Jason Lestage v. Nabors Drilling Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 10-728

JASON LESTAGE

VERSUS

NABORS DRILLING COMPANY

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 06-04387
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Billy
Howard Ezell, Judges.

AFFIRMED.

George Arthur Flournoy
Flournoy, Doggett (APLC)
P. O. Box 1270
Alexandria, LA 71309-1270
(318) 487-9858
Counsel for Plaintiff Appellant:
Jason Lestage

Kevin Andrew Marks
Galloway, Johnson, Tompkins, Burr & Smith
701 Poydras Street, Suite 4040
New Orleans, LA 70139
(504) 525-6802
Counsel for Defendant/Appellee:
Nabors Drilling Company

EZELL, JUDGE.

Jason Lestage appeals a judgment of the workers’ compensation judge below

dismissing his claim against Nabors Drilling Company. For the following reasons,

we affirm the decision of the workers’ compensation judge.

Mr. Lestage was working on a Nabors rig in West Helena, Arkansas when he

alleges drill pipe elevators pinned his knee against a chain guard. Mr. Lestage claims

that when he tried to push the elevators off his knee, he injured his back. After filing

a disputed claim for benefits and a trial on the matter, the workers’ compensation

judge ruled that Mr. Lestage did not meet his burden of proving an accident. Notably,

the workers’ compensation judge found Mr. Lestage’s testimony to be “too

inconsistent to be believed.” From that decision, Mr. Lestage appeals.

Mr. Lestage asserts four assignments of error on appeal. He claims that the

workers’ compensation judge erred in not accepting his testimony as valid; in failing

to address fraud allegations in its written reasons; in failing to admit untimely

produced phone records; and in admitting a letter from one of Nabors’ physicians.

Mr. Lestage first claims that the workers’ compensation judge erred in

disregarding his version of the accident due to “prior inconsequential or inaccurate

statements about the incident,” thereby violating “jurisprudential precepts applicable

in unwitnessed accidental injury cases.” In discussing an employee’s burden in

establishing a work-related accident, this court discussed the applicable law as

follows:

A worker bringing a compensation action against her employer
bears the burden of proving, as a threshold requirement, that she
suffered “personal injury by accident arising out of and in the course of
employment.” La.R.S. 23:1031; Bruno v. Harbert Int’l Inc., 593 So.2d
357 (La.1992). The word “accident” as used in La.R.S. 23:1031 is
defined 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

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more than simply a gradual deterioration or progressive degeneration.”
La.R.S. 23:1021(1). Jurisprudence has held that an accident may
include a routine movement or task that the employee regularly
performs, provided that the claimant is able to identify, with some
particularity, the time, place, and manner in which the accidental injury
objectively manifested itself. McCall v. Wal-Mart Stores, Inc., 02-1343
(La.App. 3 Cir. 3/5/03), 846 So.2d 832, writs denied, 03-1329, 03-1343
(La. 9/19/03), 853 So.2d 639, 641.

The plaintiff bears the burden of establishing that a work-related
accident occurred by a preponderance of the evidence. Bruno, 593
So.2d 357. This burden of proof is applicable even when the worker is
the sole witness of the accident. Id.

A worker’s testimony alone may be sufficient to discharge her
burden of establishing a work-related accident provided that no evidence
discredits or casts serious doubt upon her version of the incident and the
worker’s testimony is corroborated by the circumstances following the
alleged incident, including medical evidence or the testimony of
co-workers, friends, or the worker’s spouse. Id.

The trial court’s determinations as to whether a plaintiff in a
workers’ compensation case is credible and whether she has discharged
her burden of proof are factual determinations that should not be
disturbed upon appellate review unless clearly wrong or manifestly
erroneous. Id.

This court has noted, in the context of a workers’ compensation
suit, the well-accepted principle that credibility calls are the function of
the trial court. McCall, 846 So.2d 832.

Dantley v. Lake Charles Mem’l Hosp., 07-1227, pp. 2-3 (La.App. 3 Cir. 3/5/08), 978

So.2d 1117, 1119-20.

Mr. Lestage’s version of the accident varied several times. He has claimed

that he was pinned for a few seconds or as long as three minutes. He said in his

recorded statement to Nabors’ claims adjuster that he felt burning in one leg from hip

to toe. He later claimed that he immediately went numb bilaterally from the waist

down for up to fifteen minutes, yet he continued to work without stopping.

Moreover, Mr. Lestage then denied any radiation of his back pain at his initial

hospital visit and his chief complaint was pain and bruising on his tailbone. X-rays

and an MRI performed on him after the alleged accident showed no signs of

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abnormality.

Moreover, the inconsistencies in Mr. Lestage’s statements are not the only or

most damning evidence against his claim. The record contains the statements of three

men who worked on the relatively small rig floor with Mr. Lestage: James Baines1,

Jose Martinez, and Carl Santana. Mr. Santana in particular stated that he worked

“shoulder to shoulder” with Mr. Lestage. All denied that he ever injured himself.

Mr. Lestage continued to work after the alleged accident. He then worked two

additional twelve-hour shifts on the two days following the incident, including lifting

and moving one hundred pound sacks of gel for up to six hours by his own admission,

without trouble, according to Mr. Santana. Martin Crawford, Mr. Lestage’s

supervisor on the rig, testified that it was Nabors policy to report injuries immediately

and that Mr. Lestage never reported being injured to him. He also testified that it

would not have been possible for the elevator to pin Mr. Lestage against the chain

guard, and that in the unlikely event it did happen, he would have seen it from his

position on the floor.

Nabors also introduced a video depicting the drilling floor showing that the

elevators, due to their suspended nature, swung back and forth in a pendulum-like

manner, making Mr. Lestage’s claim of being pinned for seconds unlikely and his

claim that he was pinned for three minutes all but impossible. Finally, Nabors

introduced a surveillance video of Mr. Lestage effortlessly working on a car and at

his current job as a trucker. He performed a range of activities from climbing a ladder

and undoing a tarp while nonchalantly talking on a cell phone to unhooking his

trailer, bending, stooping, kneeling, walking, and carrying his child on his hip. At no

point did he show any signs of discomfort or anguish, in spite of his testimony at trial

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Mr. Baines’ name was spelled both “Banes” and “Baines” in the record.

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that bending and squatting caused pain.

The workers’ compensation judge clearly found Mr. Lestage to be incredible

as a witness, noting that his claims were “too inconsistent to be believed.” When

factual findings are based on the credibility of witnesses, the fact finder’s decision to

credit a witness’ testimony must be given “great deference” by the appellate court.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The determinations by the workers’

compensation judge as to whether the claimant’s testimony is credible and whether

the claimant has discharged his burden of proof are factual determinations and will

not be disturbed upon review in the absence of manifest error or unless clearly wrong.

Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). Based on the record before us,

there is clearly a reasonable factual basis for the workers’ compensation judge’s

decision. We can find no error in the workers’ compensation judge’s credibility

determination as to Mr. Lestage, or in its finding that he failed to carry his burden of

proving he sustained a workplace injury.

Mr. Lestage next claims the workers’ compensation judge erred in failing to

address his allegations of fraud in his written reasons. “[I]t is well settled that a trial

court’s judgment and reasons for judgment are two separate and distinct legal

documents, and appeals are taken from the judgment, not the written reasons for

judgment.” McCalmont v. Jefferson Parish Sheriff’s Office, 99-940, p. 6 (La.App. 5

Cir. 1/12/00), 748 So.2d 1286, 1290, writ denied, 00-679 (La. 4/20/00), 760 So.2d

1160, (citations omitted). See also La.Code Civ.P. art.1918. “[W]ritten reasons are

not binding or appealable; only the judgment itself has judicial effect and is subject

to appeal.” Guidry v. Gulf Coast Coil Tubing, 09-621, p. 13 (La.App. 3 Cir. 12/9/09),

24 So.3d 1019, 1027. This assignment requires no action by this court.

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Finally, Mr. Lestage asserts two assignments of error dealing with the

admission of evidence. Because the assignments are so similar, we shall address

them together in the interest of judicial economy.

Mr. Lestage claims that the workers’ compensation judge erred in refusing to

admit phone records that had not been timely produced, and in admitting a letter from

Dr. Michael Duval indicating his belief Mr. Lestage was malingering. “The decision

to admit evidence into the record rests within the sound discretion of the workers’

compensation judge and will not be reversed in the absence of manifest error.” Jones

v. Trendsetter Prod. Co., Inc., 97-299, p. 11 (La.App. 3 Cir. 2/25/98), 707 So.2d

1341, 1346, writ denied, 98-793 (La. 5/15/98), 719 So.2d 463. Louisiana Revised

Statutes 23:1317(A) provides, in part:

The workers’ compensation judge shall not be bound by technical rules
of evidence or procedure other than as herein provided, but all findings
of fact must be based upon competent evidence and all compensation
payments provided for in this Chapter shall mean and be defined to be
for only such injuries as are proven by competent evidence, or for which
there are or have been objective conditions or symptoms proven, not
within the physical or mental control of the injured employee himself.

After reviewing the record as a whole, we can not find that the workers’

compensation judge abused his vast discretion in disallowing the phone records

which Mr. Lestage admits were not submitted in a timely fashion. Furthermore,

considering the relaxed standard for the admissibility of evidence in workers’

compensation matters, we can find no error in the workers’ compensation judge’s

admission of the letter from Dr. Duval. These assignments of error are without merit.

For the above reasons, the decision of the workers’ compensation judge is

affirmed. Costs of this appeal are assessed against Mr. Lestage.

AFFIRMED.

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