Leroy Herron v. Labor Finders-Lfi Fort Pierce, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 13-467

LEROY HERRON

VERSUS

LABOR FINDERS-LFI FORT PIERCE, INC.

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APPEAL FROM THE
OFFICE OF WORKERS‟ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 1200516
JAMES L. BRADDOCK, WORKERS‟ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Billy Howard Ezell,
Judges.

AFFIRMED.

AMY, J., concurs in the result.

Philip Gardiner Hunter
Joseph Yuri Beck
Hunter & Beck
P. O. Box 11710
Alexandria, LA 71315-1710
(318) 487-1997
COUNSEL FOR PLAINTIFF/APPELLEE:
Leroy Herron

Kirk Lindsay Landry
Keogh, Cox & Wilson
P. O. Box 1151
Baton Rouge, LA 70821
(225) 383-3796
COUNSEL FOR DEFENDANTS/APPELLANTS:
Ace American Insurance Company
Labor Finders-LFI Fort Pierce, Inc.

EZELL, Judge.

Labor Finders - LFI Fort Pierce, Inc. (hereinafter LFI) appeals the decision

of the workers‟ compensation judge below finding that Leroy Herron suffered a

work-related injury to his back. For the following reasons, we hereby affirm the

decision of the workers‟ compensation judge.

Mr. Herron sustained a workplace injury on August 24, 2011. That day, he

was on a stepladder cutting catalytic converters from junked cars for his employer,

LFI. LFI was providing labor services for U-Pull-It Auto, a salvage yard. Mr.

Herron was cutting parts when a piece of a catalytic converter swung free and

struck his hand. According to Mr. Herron, this severely sliced his hand and caused

him to fall from the ladder and land on his buttocks. The workplace injury to his

hand is undisputed and is not at issue in this litigation. Because of the severity of

the laceration, Mr. Herron was taken to Rapides Regional Medical Center. Surgery

was performed on his hand that day and again at a later time. From that date, Mr.

Herron was prescribed narcotic pain medications and remained on them until

January 24, 2012, when he was placed on a tapering dose of Percocet. On

February 8, 2012, roughly two weeks after decreasing his pain medications, Mr.

Herron visited Dr. Gerald Leglue for back pain he claims arose from the incident

involving his hand. Dr. Leglue sought to have an MRI performed on Mr. Herron‟s

back, but LFI did not approve it. Mr. Herron then filed the current disputed claim

for compensation.

After a hearing below, the workers‟ compensation judge ruled that Mr.

Herron had proven a work injury to his back and ordered LFI to provide medical

care for that injury. From that decision, LFI appeals.

LFI asserts three assignments of error on appeal. It claims that the workers‟

compensation judge erred in applying the preponderance of the evidence burden of

proof to an unwitnessed accident; that the workers‟ compensation judge erred in

ruling that Mr. Herron injured his back in a work accident; and that the workers‟

compensation judge erred in relying solely on Mr. Herron‟s testimony in reaching

that finding. Because LFI‟s last two assignments of error overlap greatly, they will

be addressed as one.

LFI first claims that the workers‟ compensation judge applied an incorrect

burden of proof to this case when he used the preponderance of the evidence

standard. We could not disagree more. The law concerning a plaintiff‟s burden of

proof in workers‟ compensation cases could not be clearer. “[A]s in other civil

actions, the plaintiff-worker in a compensation action has the burden of

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

Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992)(citing Prim v. City of Shreveport,

297 So.2d 421 (La.1974), and Nelson v. Roadway Express, Inc., 588 So.2d 350

(La.1991))(emphasis ours).

However, in this assignment of error, LFI asserts that the elements required

by Bruno to prove an unwitnessed accident somehow change the prescribed burden

of proof to something higher than preponderance of the evidence. This argument

is specious at best and unsupported by the law. Immediately after plainly declaring

that a preponderance of the evidence standard exists for workers‟ compensation

cases, Bruno states that “[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

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alleged incident.” Id. (emphasis ours). It is clear from a plain reading of the law

that these additional elements set forth in Bruno are but elements that need to be

proven by a preponderance of the evidence. “[T]here is no doubt that the burden of

proof is a preponderance of the evidence.” Phillips v. Coca-Cola Bottling Co.

United, 06-323, p.6 (La. App. 3 Cir. 9/27/06), 939 So.2d 673, 677. The workers‟

compensation judge applied the correct burden of proof in applying the

preponderance of the evidence standard. This assignment of error is utterly devoid

of merit.

LFI next claims that the workers‟ compensation judge committed manifest

error in finding that Mr. Herron sustained a work-related injury based on his

testimony alone.

As in other civil actions, the plaintiff-worker in a compensation action
has the burden of establishing a work-related accident. Nelson v.
Roadway Express, Inc., 588 So.2d 350 (La.1991); Prim v. City of
Shreveport, 297 So.2d 421 (La.1974). An employee may prove by his
or her testimony alone that an unwitnessed accident occurred in the
course and scope of employment if the employee can satisfy two
elements: (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 accident.
Bruno v. Harbert International, Inc., supra, 593 So.2d at 361 (citing
West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone
and Johnson, 13 Civil Law Treatise, Workers’ Compensation, Section
253 (2d Ed.1980)). As we noted in Bruno, corroboration of the
worker‟s testimony may be provided by the testimony of fellow
workers, spouses, or friends, or by medical evidence. Id. (citing West,
Nelson, and Malone and Johnson).

In Bruno, we cautioned that, in deciding whether the plaintiff-
worker has discharged his or her burden of proof, the fact-finder
“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.‟ ” 593 So.2d at 361 (quoting West, 371
So.2d at 1147, and citing Holiday v. Borden Chemical, 508 So.2d
1381, 1383 (La.1987)). The fact-finder‟s determinations as to whether
the worker‟s testimony is credible and whether the worker has
discharged his burden of proof are, most certainly, factual
determinations that should not be disturbed on appellate review unless

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clearly wrong or manifestly erroneous. Id. (citing Gonzales v. Babco
Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536
So.2d 1200 (La.1988)).

It is well-settled that a reviewing court may not disturb the
factual findings of the trier of fact in the absence of manifest error.
Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v.
Domingue, 365 So.2d 1330, 1333 (La.1979). In Arceneaux, we set
forth a two-part test for the appellate review of facts: (1) the appellate
court must find from the record that there is a reasonable factual basis
for the finding of the trial court, and (2) the appellate court must
further determine that the record establishes the finding is not clearly
wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333; see
also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the trial court‟s
findings are reasonable in light of the record reviewed in its entirety,
the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co.,
558 So.2d 1106, 1112 (La.1990). Consequently, when there are two
permissible views of the evidence, the factfinder‟s choice between
them cannot be manifestly erroneous. Stobart v. State, Through
Department of Transportation and Development, 617 So.2d 880, 883
(La.1993); Sistler, 558 So.2d at 1112.

Ardoin v. Firestone Polymers, L.L.C., 10-245, pp. 5-6 (La. 1/19/11), 56 So.3d 215,

218-19.

LFI likens this case factually to Ardoin, because there was a delay in

reporting the injury. However, in that case, the plaintiff admitted he did not report

the accident until some eighteen months after he claimed it occurred. Here, the

delay was a much shorter six months. Moreover, while the workers‟ compensation

judge may not have stated it as plainly as LFI would have liked, it is clear that the

workers‟ compensation judge found an acceptable reason for the delay between the

accident and the first documented claim of back pain in Mr. Herron‟s medical

records. The workers‟ compensation judge noted in his reasons the extended

period of time Mr. Herron was on narcotic pain medication for his hand injury and

it is evident that the workers‟ compensation judge found that these medications

masked or reduced Mr. Herron‟s back pain until he was weaned from them, just

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two weeks prior to his first doctor‟s visit specifically for his back. This finding is

reasonable.

While LFI claims that the facts of this case do not support Mr. Herron‟s

version of the events, Mr. Herron‟s testimony that he fell from the ladder at the

time of the accident is not only uncontradicted, but it is supported by the record.

Although the overwhelming majority of his medical records focus on his severely

injured hand, Mr. Herron‟s medical records from Rapides Regional Medical Center

on August 24, 2011, note a “Secondary Diagnosis” of an “Accidental fall from one

level to another.” His testimony that his back pain began shortly after the fall is

also uncontradicted.

Additionally, Mr. Herron‟s testimony is corroborated by his wife, who

testified that he told her his back hurt shortly after the accident. She testified that

Mr. Herron had trouble sleeping at night due to the back pain and that his back hurt

continuously since the fall. The workers‟ compensation judge found them both to

be credible witnesses, noting their forthrightness when discussing prior injuries to

Mr. Herron‟s back which had resolved prior to his employment with LFI.

Ultimately, the workers‟ compensation judge found that the circumstances

surrounding this case did not cast serious doubt upon Mr. Herron‟s version of the

incident or cast suspicion on the reliability of his testimony. Mr. Herron‟s version

of the events surrounding his injury was corroborated by his wife. The workers‟

compensation judge repeatedly stated that he found Mr. Herron and his wife to be

credible witnesses. “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.” Rosell v. ESCO, 549 So.2d 840, 844-45

(La.1989) (citations omitted). Nothing in the record so contradicts Mr. Herron‟s

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story so as to make it incredible, and a reasonable factual basis for the workers‟

compensation judge‟s findings does exist. Accordingly, there can be no manifest

error in the workers‟ compensation judge‟s determination. This assignment of

error also lacks merit.

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

hereby affirmed. Costs of this appeal are hereby assessed against LFI.

AFFIRMED.

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