Dekeisha Lashun Chaisson v. Compass Group, USA, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-843

DEKEISHA LASHUN CHAISSON

VERSUS

COMPASS GROUP, USA, INC., ET AL.

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 17-04200
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

**********

JONATHAN W. PERRY
JUDGE

Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry,
Judges.

AFFIRMED.

Tracy P. Curtis
The Glenn Armentor Law Corp.
300 Stewart Street
Lafayette, Louisiana 70501
COUNSEL FOR PLAINTIFF/APPELLANT:
Dekeisha Lashun Chaisson

Eric E. Pope
Pamela N. Molnar
Blue Williams, LLP
3421 North Causeway Blvd., Suite 900
Metairie, Louisiana 70002
COUNSEL FOR DEFENDANT/APPELLEE:
Compass Group, USA, Inc.

PERRY, Judge.

Dekeisha Lashun Chaisson (Chaisson) appeals the workers’ compensation

judgment denying her claim for workers’ compensation benefits based on her failure

to prove the occurrence of an accident arising out of and in the course and scope of

her employment with Defendant, Compass Group, USA, Inc. (Compass). For the

following reasons, the judgment of the Office of Workers’ Compensation is

affirmed.

FACTS

Bateman Community Living,1 which is owned and operated by Compass,

employed Chaisson as a caterer from August 10, 2015, until her termination on June

21, 2017. Her duties involved delivering and serving food at different locations.

On July 12, 2017, Chaisson filed a Form 1008 Disputed Claim for

Compensation (1008) seeking benefits and medical treatment pursuant to the

Louisiana Workers’ Compensation Act, La.R.S. 23:1021–1415, for injuries she

allegedly sustained in two separate workplace accidents. In the 1008, Chaisson

alleged an accident was reported on March 25, 2017, to Supervisor, Paul Scelfo

(Scelfo), and described: “Lifting filled catering trays[.] First injured while lifting

heavy, long pans filled with food in September 2016, claimant continued to work in

pain. On 5-25-17, she re-injured her spine. Pain, including headaches, caused

claimant to miss many days of work for which she was terminated.” Chaisson sought

an additional award for statutory penalties and attorney fees, asserting Compass

refused to pay benefits or authorize medical treatment.

In its August 2017 Answer, Compass denied Chaisson’s entitlement to

workers’ compensation benefits, disputed her disability, and denied liability for

1
Throughout the proceedings, the parties often refer to Chaisson’s employer as “Bateman.”

penalties and attorney fees on the basis that Chaisson never reported a workplace

injury. In addition, Compass asserted a fraud claim against Chaisson pursuant to

La.R.S. 23:1208.

On November 21, 2017, Chaisson filed a First Amended Form 1008 Disputed

Claim for Compensation (Amended 1008). In the Amended 1008, Chaisson alleged

an accident was reported on May 23, 2017, to Scelfo, and described:

Lifting filled catering trays[.] Claimant first injured her low back while
lifting heavy, long pans filled with food in September 2015.[2] Claimant
continued to work in pain. On or about May 23 or 24, 2017,[3] she
injured her left neck with radiating pain to the back, and aggravated her
low back while lifting pans at work. At Lafayette General [Medical
Center (LGMC)] May 25, claimant recalled no accident. The
healthcare provider concluded that lifting the pans at work two days
prior caused the left lateral neck pain that radiated down posterior back.

Compass reiterated its denials in answer to the Amended 1008.

Following a trial on April 26, 2018, the workers’ compensation judge (WCJ)

ruled in favor of Compass and dismissed Chaisson’s claims. Chaisson appeals. For

the reasons that follow, we must affirm.

In her first assignment of error, Chaisson alleges the WCJ committed an error

of law in reaching the decision that the criteria set forth in Bruno v. Harbert Int’l,

Inc., 593 So.2d 357 (La.1992), did not apply to her unwitnessed work injury.

Secondly, she assigns error to the denial of her claims for workers’ compensation

benefits, as well as penalties and attorney fees.4

It is Chaisson’s contention the WCJ’s ruling was primarily based upon

Chaisson’s formal claim being filed only after being terminated sixteen workdays

2
The 1008 initially alleged Chaisson’s first accident was in September 2016.

3
The 1008 initially alleged Chaisson’s second accident was on May 25, 2017.

4
While Chaisson claims two injuries, in brief she concedes entitlement solely to
medical-related benefits for the September 2015 incident and asserts her “appeal primarily
addresses the most recent, neck injury for which the law entitled plaintiff to all worker[s’]
compensation benefits.”
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after her injury. According to Chaisson, Compass knew she suffered injuries at

work, knew she sought medical treatment, and knew her absences were due to

injury-related pain. Compass repudiates any workplace accident or injury ever

occurred, claims Chaisson was justly terminated for excessive absences, and charges

Chaisson with filing her claim to punish Compass for her termination.

LAW AND DISCUSSION

Appellate courts review factual determinations in workers’ compensation

cases using the manifest error standard of review. Smith v. Louisiana Dep’t of

Corrs., 93-1305 (La. 2/28/94), 633 So.2d 129. Only if we find the trial court

committed an error of law that interdicted the fact-finding process will we conduct

a de novo review. Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502.

In Bruno, 593 So.2d 357, 361, the Louisiana Supreme Court considered a

workers’ compensation case where, as here, the accident was unwitnessed, and set

forth the claimant’s burden of proof and the criteria to be used by courts in

determining whether an unwitnessed but compensable accident has occurred:

[T]he plaintiff-worker in a compensation action has the burden of
establishing a work-related accident by a preponderance of the
evidence. [Prim v. City of Shreveport, 297 So.2d 421 (La.1974)];
Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La. 1991)]. 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, [588 So.2d 350]. Corroboration may also be
provided by medical evidence. West, [371 So.2d 1146].

After examination of the evidence, we find the record supports the WCJ’s conclusion

Chaisson failed to prove a compensable injury by a preponderance of the evidence.

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At trial, Chaisson’s co-employee, Preston Edwards, testified on her behalf.

When asked whether he recalled Chaisson “ever complaining or being injured on the

job[,]” he replied, “Yes . . . she was complaining about lifting up heavy things, where

she couldn’t raise up things over. . . . Like pans . . . she carries around[.]” Edwards

claimed Chaisson told him she injured her back. He testified he occasionally assisted

Chaisson by loading items which were too heavy for her to lift. Edwards, however,

was not aware if Chaisson ever complained of her pain to any other co-workers or

to Scelfo, the supervisor. On cross-examination, Edwards testified he could not

recall when Chaisson’s complaints of back pain began.

Doddie Lange, an Administrative Assistant employed by Compass, was also

called to testify during Chaisson’s case-in-chief. Her duties involved maintaining

employee’s personnel files, documenting hire records, attendance, excuses, and

accident reports. Lange confirmed from Time Off Worksheets that Chaisson was

absent from work on September 28, 2015, and did not return until October 2, 2015.

Lange denied knowing or having any record of Chaisson seeking treatment for back

pain at LGMC on September 28, 2015.

Lange also established Chaisson worked on May 24, 2017, was “out” on May

25, 2017, was “off” May 26, 2017, and returned to work on Tuesday, May 30, 2017,

after the three-day Memorial Day Holiday weekend. Lange denied knowing or

having any record of Chaisson seeking treatment for a neck injury at LGMC on May

25, 2017. When asked whether Chaisson complained of hurting her neck at work in

May 2017, Lange responded, “The only time she complained about an injury, I do

not remember what the injury was, and I automatically told her, ‘If you’re hurt, you

know you need to go to your manager.’ And she said it didn’t happen here. Her

horse kicked her.”

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Another of Lange’s duties was to reproduce an Injury Free

Certification/Acknowledgement form weekly. The employees signed the form

every Friday. Lange confirmed Chaisson did not sign the injury-free certificate for

the week of May 22 through May 26, 2017. Finally, Lange verified that after

returning to work on May 30, 2017, Chaisson worked an additional sixteen days

before her termination on June 21, 2017. Lange was not cross-examined; Compass,

instead, reserved its right to re-call and question Lange during its case-in-chief.

In her testimony, Chaisson stated she worked for Bateman as a driver and a

server, delivering food to various locations. When asked to describe her September

2015 accident, Chaisson specified she was at J.S. Clark Academy in Opelousas,

Louisiana, when she injured her back while lifting up a pan in the process of

unloading her truck. This occurred on September 28, 2015. She did not immediately

return to Lafayette because “she had to serve the food for the kids. . . . Because they

had no one else to come over there.” Chaisson claimed she told Scelfo, both by

calling him on the telephone from the school and by speaking to him in person when

she returned to Bateman in Lafayette. She stated Scelfo did not fill out an accident

report nor did he offer her any medical attention; instead, she “told him that I got

hurt and that I’d have to go to the doctor.” She then went to the emergency room at

LGMC. The LGMC’s medical records for September 28, 2015 reflect Chaisson’s

“History of Present Illness” as:

The patient presents with back pain. The onset was 2 days ago.
The course/duration of symptoms is worsening. Type of injury: lifting
and turning. Location: Bilateral lumbar. Radiating pain: none. The
character of symptoms is sharp and achy. The degree at onset was
minimal. The degree at present is moderate. There are exacerbating
factors including movement and bending over. The relieving factor is
none. Risk factors consist of none. Prior episodes: occasional.
Therapy today: over the counter medications. Associated symptoms:
none. Additional history: none.

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Chaisson testified she did not recall if she missed any time from work because of

that injury, explaining she continued to work, even though in pain, because she

needed her job.

When asked to describe her accident of May 2017, Chaisson recalled reaching

for pans above her head when she injured her neck and reinjured her lower back;

however, she could not remember where exactly she was when her injury occurred.

Chaisson claimed she told Scelfo also of this injury both by telephone and in person,

but Scelfo did not fill out an accident report nor did he offer her any medical

attention. She stated the next morning she called Scelfo and told him she could not

work because she had to go to the hospital. The LGMC’s medical records of May

25, 2017 reflect Chaisson’s “History of Present Illness” as:

The . . . 43 y/o female presents with left side of neck and left side
of back pain that started yesterday. [S]tates hurts to touch and
movement. [S]tates she lifts pans at work. [D]enies any
injury/trauma. . . . 43-year-old black female complains of left lateral
neck pain radiating down posterior back worse with movement and
deep breathing. States started yesterday. Denies injury. But does lift
on heavy pans work. . . . The onset was 2 days ago. The
course/duration of symptoms is constant. Location: Left Lateral neck
and left upper back. Type of injury: none. The location where the
incident occurred was at work. Radiating pain to the back. The
character of symptoms is pain. The degree at present is moderate. The
exacerbating factor is movement. The relieving factor is none. Risk
factors consist of none. Prior episodes: none. Therapy today: none.
Associated symptoms: none.

Chaisson testified that she missed work the following day, May 26, 2017,

because she had an excuse from LGMC. She claimed she gave Scelfo her excuse

and “[h]e made a copy in the front by the secretary desk and put it in my folder.”

Chaisson testified she returned and continued to work, even though in pain,

because she needed the money and the job. When asked why she filed her workers’

compensation claim after she was terminated, Chaisson answered, “Because he -- he

really fired me for nothing. He knew I was working, being hurt.”

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Under cross-examination, Chaisson reaffirmed that her original accident was

on September 28, 2015, and occurred at J.S. Clark Academy. She testified that when

she called Scelfo to report she was hurt, he told her, “He didn’t have nobody to send

there for me, and he said I was always complaining about something.” After

Chaisson was asked “what else were you complaining about[,]” the following

exchange ensued:

A. My neck and my back about that, and I was working by myself.

Q. Okay. Now, this is September 28, 2015, when your accident
occurred. Were you complaining about your neck and your back
before that?

A. I didn’t complain about my neck. I was complaining about my
back.

Q. You were complaining about your back before September 28,
2015?

A. No.

Q. Okay. So I’m confused. When you called Paul [Scelfo] on
September 28, 2015, to tell him you hurt yourself at work and he
said he was tired of you complaining, what was he talking about?

A. Because I told him I needed help at the school. I was by myself.

Q. So you’d been working at the school for a while and having
problems?

A. Yes.

Q. And had asked for help before September 28, 2015?

A. Yes. There was supposed to be two people working that
regardless.

Chaisson testified she kept working after September 2015, even though she

was in pain, but claimed Scelfo knew she was working in pain. According to

Chaisson, she never had a conversation with Scelfo about filing a workers’

compensation claim or about receiving any kind of accommodation at work, nor did

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she seek any other medical treatment for her back injury between September 2015

and May 2017.

Chaisson claimed she told Lange about her May 2017 injury “maybe once or

twice” and gave Scelfo documentation from LGMC, but she could not remember

where exactly she was when she injured her neck. She disputed LGMC’s medical

records of May 25, 2017, which indicate she denied any injury or trauma. According

to Chaisson, “I told them exactly what happened.”

Chaisson was next asked about her termination on June 21, 2017. She

admitted sending a text message to Scelfo stating, “I’m coming for Bateman.” This

colloquy followed:

Q. And then I think the next day or a day later a letter of
representation went out from your attorney. You retained an
attorney immediately after you got fired?

A. Yes.

Q. Okay. To file this workers’ compensation claim?

A. Because I was -- I was fired for no reason.

Q. Okay.

A. And I told them I was working while I was hurt.

Q. Is there any reason you didn’t mention being hurt to Paul when
you texted him that text?

A. Well, Paul already knew that. Many a times I told that to Paul
when I would go in Paul’s office.

Chaisson claimed Scelfo frequently arranged for other employees to load her truck

in the morning because he knew she was hurting. She denied it was a customary

occurrence for other employees to load the pans of food into every truck each

morning.

Chaisson testified she had headaches and pain in her neck and back due to two

workplace accidents. She claimed she began having painful headaches after her May

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2017 accident. Despite medical records from LGMC dated May 30, 2015 and March

18, 2017 which indicate she reported suffering headaches, Chaisson denied seeking

treatment from LGMC for headaches. She claimed she sought treatment for a cold,

not headaches, on March 18, 2017.

Chaisson was questioned about her first accident, which she claimed occurred

on September 28, 2015 at J.S. Clark Academy. When confronted with her

employment record which showed she was not at work that day, the following

exchange ensued:

A. . . . I can’t recall, which I don’t remember the exact date that --
that’s the day I went to the hospital. It must have been the day
before because I did go to the hospital behind it.

Q. Okay. The day before is a weekend, though.

A. I can’t -- then I can’t explain all them questions.

Q. Okay.

A. I’m trying to see if that’s when my excuses was still led to.

Q. You didn’t work on Saturday and Sunday, though, did you?

A. No. I’m talking about from the Friday. I can’t really remember
the date that it really happened.

Q. Okay.

A. I can’t recall the date.

When asked about the injury-free certificates, Chaisson testified that although

there were times she would not sign the form because she missed work or worked

offsite, she typically signed them because they were presented on a table where she

would pick up her check. When asked, “So even though it’s an injury-free

certification, you would sign it even if you were having problems[,]” she replied,

“Most of the time.” She testified she would sometimes not sign the injury-free

certificates because she was having problems.

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On re-direct examination, Chaisson was only questioned about the text

message she sent to Scelfo shortly after being terminated. The following exchange

occurred:

Q. I’m interested in the text you -- where you have in all cap[s],
“YOU USED ME.” What were you referring to when you texted
Mr. Scelfo that he used you?

A. As going doing things for him that I wasn’t supposed to on the
job at work. Doing him favors, going to the store for him. I was
staying doing more work than I was supposed to be.

Q. How about working in pain?

A. He knew that.

This ended Chaisson’s testimony and the presentation of her evidence.

Compass re-called Lange to the stand. According to Lange, Chaisson only

mentioned an incident involving her horse, never a workplace accident. Lange

explained that Compass’s protocol required employees to report a workplace

accident to their supervisors, which was then reported to the corporate office. Lange

denied ever receiving any medical records concerning Chaisson, saying “The only

stuff I saw was the first stuff that came from the attorney about the bill.” Lange

testified she reviewed Chaisson’s personnel file for trial and found nothing related

to a work injury. She testified Scelfo was aware of Compass’s protocol for reporting

and confirmed he had reported workplace accidents in the past.

Lange was also asked about Chaisson’s claim she had asked for a helper when

she worked at J.S. Clark Academy because of problems she was having physically.

According to Lange, Chaisson “indicated she liked working by herself. She didn’t

like working with other people.” Lange claimed Chaisson once told her of being

tired so Lange told Chaisson to tell Scelfo if she needed time off or if she needed

help, to which Lange stated Chaisson replied, “no, I like working by myself.”

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Under cross-examination, Lange reiterated Chaisson did not complain to her

of an injury suffered while at work. According to Lange, Chaisson indicated the

pans were heavy but did not ever say she could not work because they were too

heavy.

Compass next called Scelfo to the stand. Scelfo testified he has been

employed as a Unit Director for Compass since August 17, 2015. According to

Scelfo, Chaisson was not working at J.S. Clark Academy on September 28, 2015,

when she alleges her first injury occurred. Scelfo claimed he worked at the school

from September 23, 2015 until October 10, 2015, after which Chaisson worked at

the school. Scelfo also disputed Chaisson’s claims that she asked for help with her

work duties while working at the school.

Scelfo testified Chaisson never told him she was injured at work and denied

Chaisson told him she was having neck or back pain because of work-related

injuries. He recalled Chaisson complained that her knee hurt, but claimed she told

him she hurt it when she fell while walking down stairs at her house. Scelfo testified

Chaisson would inform him when she was sick, but he refuted Chaisson’s claim he

was given medical excuses or records related to a work-related injury.

Scelfo explained Compass’s protocol required him to compose a written

injury report, which he then gave to the human resources department. Scelfo

testified he first heard Chaisson claimed a work-related injury when Compass

received a letter of representation from her attorney.

Under cross-examination, Scelfo conceded that as a Unit Director, it would

be beneficial to have an accident-free unit. When asked whether he knew anyone

that makes nine dollars and fifty cents an hour who owns a horse, Scelfo replied he

did not know anyone who owned a horse. Next, he reiterated that from September

23, 2015 through October 10, 2015, he alone brought and served breakfast, lunch,

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and snacks to J.S. Clark Academy. When asked his height, Scelfo testified he is six

feet tall. He acknowledged he is responsible for hiring and firing and his supervisors

hold him accountable for his unit’s profits.

Following Scelfo, the defense rested its case and Chaisson returned to the

stand on rebuttal. Chaisson denied ever owning a horse. She also denied having

stairs in her home. This concluded Chaisson’s testimony and trial.

The WCJ issued an oral ruling immediately at the conclusion of trial, denying

Compass’s fraud claim and Chaisson’s claim for workers’ compensation benefits.

The WCJ opined, in pertinent part:

It is, as we discussed at the outset, more of a he-said/she-said
credibility-type determination. It’s not quite a Bruno, situation, or it’s
not a classic, I guess in my mind, Bruno situation because there is some
corroboration, although, it is a little mild in nature. There are hospital
or healthcare visits at approximately the times complained of. And then
we have the first witness who, Mr. Edwards, my understanding of his
testimony is that he did hear her complain. I did not hear him testify
that he heard her complain of an accident, my words, in the sense that
that term is defined in the Workers’ Compensation Act and under the
jurisprudence under the Act.

And I was also going to ask, but I did not, how tall was
Mr. Edwards, because he certainly wasn’t much taller, I think, than
Ms. Chaisson. But any way, the corroboration that exists is mild, but
there is some. Therefore, it’s not what I call a classic Bruno case. So
it is more down to weighing the evidence and the credibility of
Ms. Chaisson, and I find the probabilities to be evenly balanced, and
Ms. Chaisson does not prevail today because there are just too many
discrepancies.

Considering Chaisson “notified [Scelfo] in a bit of detail and without hesitation

when she was not feeling well, and it would be shocking to me if she was having

back and neck and knee complaints related to a work accident and there was no text

message about it[]” the WCJ did not “place any weight on [Chaisson’s] testimony”

that she only verbalized her pain complaints to Scelfo. Consequently, the WCJ ruled

Chaisson “failed to bear her burden of proving an accident in the course and scope

of employment by a preponderance of the evidence, and therefore find that the case

12

should be dismissed with prejudice.” A written judgment to this effect and which

assessed Chaisson with court costs was signed on May 10, 2018.

Chaisson’s arguments herein suggest that only her testimony should be

considered to determine whether a workplace accident has been proven. We cannot

ignore, however, our review of the record which reveals contradictions and

inconsistencies throughout. Considering the Bruno criteria, the record supports the

conclusion that other testimony and medical evidence discredited and cast serious

doubt upon Chaisson’s allegations.

Chaisson alleged an injury on September 28, 2015. Although medical records

show she did seek treatment at LGMC on September 28, 2015, evidence disputes

she worked that day at J.S. Clark Academy, as she claimed. Also suspect is the fact

that Chaisson could remember specifics about the September 2015 incident, but

could not remember specifics about the May 2017 incident. Although medical

records show Chaisson did seek treatment at LGMC on May 25, 2017, she denied

an injury at the time of treatment. Further, Edwards did not convincingly corroborate

Chaisson’s injuries, noting he only heard her mention back pain. Chaisson alleged

her back was injured in September 2015 and her neck was injured in May 2017.

Thus, we must agree with the WCJ’s characterization that Chaisson’s testimony was

only mildly corroborated.

Finally, there is clear conflict in the testimony, requiring an evaluation of

credibility. Both Lange and Scelfo vehemently disputed Chaisson claims she

informed them of her workplace accidents and injuries. Even though an appellate

court may feel its own evaluations and inferences are reasonable, the factfinder’s

reasonable evaluations of credibility and reasonable inferences of fact should not be

disturbed upon review where conflicts exist in the testimony. Rosell v. ESCO, 549

So.2d 840 (La.1989).

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We must agree with the WCJ’s conclusion that the inconsistencies noted

above indicate Chaisson failed to prove a workplace injury by a preponderance of

the evidence. In view of our holding, it is not necessary that we consider Chaisson’s

assignment of error number two.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge

is affirmed. All costs of this appeal are assessed to Dekeisha Lashun Chaisson.

AFFIRMED.

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