Diana George v. Cajun Outdoor Productions, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-59

DIANA GEORGE

VERSUS

CAJUN OUTDOOR PRODUCTIONS, L.L.C. AND LOUISIANA
WORKERS’ COMPENSATION CORPORATION

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 14-00725
SHARON MORROW, WORKERS COMPENSATION JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Sylvia R. Cooks, John E. Conery, and David Kent Savoie,
Judges.

AFFIRMED.

Matthew D. McConnell
Matthew R. Reed
McConnell Law Offices
Post Office Box 52024
Lafayette, Louisiana 70505-2024
(337) 347-6404
COUNSEL FOR PLAINTIFF/APPELLEE:
Diana George

Matthew R. Richards
Johnson, Stiltner & Rahman
Post Office Box 98001
Baton Rouge, Louisiana 70898-8001
(225) 231-0521
COUNSEL FOR DEFENDANTS/APPELLANTS:
Cajun Outdoor Productions, L.L.C.
Louisiana Workers’ Compensation Corporation

CONERY, Judge.

In a dispute over whether an accident occurred in the course and scope of

her employment in sales, the Workers’ Compensation Judge (WCJ) found in favor

of the plaintiff-employee, Diana George (Ms. George) and against her employer,

Cajun Outdoor Productions, L.L.C. (Cajun), and their workers’ compensation

insurer, the Louisiana Workers’ Compensation Corporation (LWCC). For the

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. George made two claims for benefits and medical treatment against her

employer, Cajun, and the LWCC. The first was for a back strain that she allegedly

suffered April 27, 2012, while moving around magazines for several days without

help. The second was for injuries to her head, back, shoulders, and feet when she

fell in a pothole in the parking lot of Albertsons while attempting to deliver sample

magazines to a potential new Cajun customer, Beverly Thoman.

On February 19, 2015, the WCJ issued a preliminary determination, after

reviewing the matter on briefs and documents, including the two depositions of Ms.

George. Counsel agreed to the submission of the matter, without a hearing, when

Ms. George was unable to attend.

The WCJ found two controverted issues in the case, which included the

recommendation for an MRI of the head and the request for a referral to a

physician for treatment for both her feet and bunions. The WCJ’s ruling stated:

It is the preliminary determination of the court that the defendant has
reasonable grounds to contest the causal connection of the
recommendations including the lapse of 2 years between the incidents
in question and the recommendations and the multiple inconsistencies
in the histories, the complaints and objective findings on physical
examination.

On May 19, 2015, the WCJ held a hearing in order to determine the nature

of the two claims. On May 28, 2015, the WCJ issued a judgment which found the

following:

[T]hat the April 27, 2012 incident does not meet the statutory
requirements of an “accident[,]” as that term is contemplated by the
Workers[’] Compensation Act as interpreted by Broussard v. Stine
Lumber Co., 82 So.3d 1274 (La. App. 3 Cir.[] 2012), [writ denied, 12-
451 (La.4/13/12), 85 So.3d 1250], and is therefore not compensable.

That decision by the WCJ is not before us on appeal.

The WCJ then found that the June 23, 2012 incident in the Albertsons

parking lot did meet the statutory requirements of an “accident.” The WCJ further

found that Ms. George:

[W]as in the course and scope of employment with her employer at
the time of her fall on the parking lot of the Albertson[]s grocery store,
located at Ambassador Caffery and Kaliste Saloom in Lafayette,
Louisiana; as such, the June 23, 2012 accident is therefore
compensable as a work-related injury covered by the laws of
Workers’ Compensation.

The WCJ also found Ms. George’s “injuries to the neck, back, shoulders,

head, and feet (excluding bunions)” were “causally related to the on-the-job

accident in the parking lot at Albertson’s that occurred on June 23, 2012 and are to

be treated in accordance with the Louisiana Medical Treatment Guidelines.”

The WCJ found that the handling of the claim by the LWCC was reasonable

and declined to award penalties and attorney fees at this point in the proceedings.

Cajun and the LWCC have timely appealed the WCJ’s ruling finding that

Ms. George was in the course and scope of her employment with Cajun at the time

of the accident in the Albertsons parking lot.

ASSIGNMENT OF ERROR

Cajun and the LWCC have asserted one assignment of error on appeal:

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1. It was legal error for the Trial Court to find that the plaintiff
carried her burden in proving that the accident that caused injuries
to her neck, back, shoulders, head and feet (excluding bunions),
which occurred on June 23, 2012, was in the course of her
employment with Cajun Outdoor Productions, L.L.C.

LAW AND DISCUSSION

Standard of Review

This court has previously found that “[f]indings by the WCJ that an accident

arose out of and was in the course and scope of employment are factual

determinations subject to review under the manifest error standard.” Mayes v.

Deep S. Chem., Inc., 11-91, p. 3 (La.App. 3 Cir. (6/1/11), 66 So.3d 65, 68. “The

determination of coverage is a subjective one in that each case must be decided

from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220

(La.1981).

In Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973), the supreme court

defined the standard to be used in appellate review of facts as follows:

When there is evidence before the trier of fact which, upon its
reasonable evaluation of credibility, furnishes a reasonable factual
basis for the trial court’s finding, on review the appellate court should
not disturb this factual finding in the absence of manifest error. Stated
another way, the reviewing court must give great weight to factual
conclusions of the trier of fact; 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. The reason for this well-settled principle of review
is based not only upon the trial court’s better capacity to evaluate live
witnesses (as compared with the appellate court’s access only to a
cold record), but also upon the proper allocation of trial and appellate
functions between the respective courts.

The Louisiana Supreme Court in Peironnet v. Matador Resources Co., 12-

2292, p. 35 (La. 6/28/13), 144 So.3d 791, 817, reiterated the long held rule cited in

Rosell v. ESCO, 549 So.2d 840 (La.1989), that “where there are two permissible

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views of the evidence, the factfinder’s choice between them cannot be manifestly

erroneous or clearly wrong.”

Burden of Proof

When a worker brings a compensation claim against her employer, she bears

the burden of initially proving that she suffered “personal injury by accident

arising out of and in the course of [her] employment.” Bruno v. Harbert Int’l. Inc.,

593 So.2d 357, 360 (La.1992); La.R.S. 23:1031(A). Louisiana Revised Statutes

23:1031(A) further provides that, if this burden is met, “his employer shall pay

compensation in the amounts, on the conditions, and to the person or persons

hereinafter designated.”

Assignment of Error One

Cajun and the LWCC argue that the WCJ erred in finding that Ms. George

was in the course and scope of her employment at the time of the accident. They

assert that the deposition of Cheryl Tyl, who was with Ms. George at the time of

the accident, paints a different picture than the story told by Ms. George.

Ms. Tyl testified that Ms. George was at Albertsons to make a bank deposit

and that she did not have any magazines in her hands at the time of the fall.

However, Ms. Tyl also admitted that she did not know the exact reason that Ms.

George had come to the Albertsons parking lot, so it could also have been for job

related business with Ms. Thoman, a third-party disinterested witness, as claimed

by Ms. George.

The WCJ found that Ms. George was a credible witness, whose version of

the accident was supported by the deposition testimony of Betty Thoman, a

potential customer of Cajun. Ms. Thoman’s deposition testimony stated she was

considering advertising in Cajun’s publication and had arranged to meet Ms.

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George in the Albertsons parking lot to obtain some sample Cajun magazines.

While carrying the magazines, Ms. George tripped in a pothole and fell, suffering

the above mentioned injuries. The WCJ found that Ms. Thoman was a

disinterested third-party to the proceedings and would have no reason to lie about

how the accident occurred.

The WCJ also relied on the deposition of Ms. George’s employer and her

direct supervisor, Charles Maraist, Jr., in finding that the accident at issue occurred

while Ms. George was in the course and scope of her employment with Cajun. Mr.

Maraist testified that Ms. George did not need anyone’s permission to meet with a

potential client outside the Cajun offices. He stated, “She had free reign to -- if she

thought it was necessary to meet up with -- she tried to close sales over the phone,

but if she thought it was -- she had to meet up with someone, she would.” Mr.

Maraist’s testimony that it was not unusual for Ms. George to meet customers

outside the Cajun offices provided a reasonable explanation to the WCJ for Ms.

George’s meeting with Ms. Thoman in the Albertsons parking lot.

The principle stated in Peironnet, 144 So.3d at 817, “where there are two

permissible views of the evidence, the factfinder’s choice between them cannot be

manifestly erroneous or clearly wrong[,]” is applicable to the findings of the WCJ

in this case.

We therefore find no manifest error in the WCJ’s judgment. We affirm the

WCJ’s findings of fact that the June 23, 2012 accident in the Albertsons parking lot

occurred in the course and scope of Ms. George’s employment with Cajun and that

she is entitled to treatment in accordance with the Louisiana Medical Treatment

Guidelines.

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CONCLUSION

For the foregoing reasons, we find that the WCJ was not manifestly

erroneous in finding that Ms. George met her burden of proof in establishing that

an accident occurred in the course and scope of her employment with Cajun in

accordance with La.R.S. 23:1031(A). Accordingly, we affirm the judgment in its

entirety and assess the costs of this appeal to Cajun Outdoor Productions, L.L.C.

and the Louisiana Workers’ Compensation Corporation.

AFFIRMED.

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