Joseph Demarest v. Ni Welding Supply, LLC & the Gray Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-231

JOSEPH DEMAREST

VERSUS

NI WEDLING SUPPLY, LLC AND
THE GRAY INSURANCE COMPANY

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 19-05205
HONORABLE JONATHAN W. BROWN
WORKERS’ COMPENSATION JUDGE

**********

CHARLES G. FITZGERALD
JUDGE

**********

Court composed of Sylvia R. Cooks, Chief Judge, and Charles G. Fitzgerald and
Gary J. Ortego, Judges.

AFFIRMED.

Marcus M. Zimmerman
949 Ryan Street, Suite 110
Lake Charles, Louisiana 70601
(337) 474-1644
Counsel for Plaintiff/Appellant:
Joseph Demarest

Jeremy N. Morrow
Jennifer M. Ardoin
Neuner Pate
One Petroleum Center, Suite 200
1001 West Pinhook Road
Lafayette, Louisiana 70503
(337) 237-7000
Counsel for Defendants/Appellees:
NI Welding Supply, LLC
The Gray Insurance Company

FITZGERALD, Judge.

The issue here is whether the workers’ compensation judge (WCJ) manifestly

erred in denying compensation benefits.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Joseph Demarest, was formerly employed by NI Welding Supply

LLC. Joseph alleges that he hurt his back in the course of employment on July 25,

2019. Two weeks later, he filed a disputed claim for compensation against NI

Welding and its insurer, The Gray Insurance Company. Defendants reconvened,

claiming that Joseph willfully made false statements for the purpose of obtaining

compensation benefits.

Trial was held in June 2021. Many months later, in February 2022, the WCJ

issued a final judgment with accompanying written reasons. In essence, the WCJ

denied all claims. Joseph appealed.

On appeal, Joseph asserts the following assignments of error:

1. The WCJ committed manifest error in finding that [Joseph]
failed to meet his burden of proving that he suffered a
compensable work-related accident to his lower back in the mid-
morning of July 25, 2019.

2. The WCJ committed manifest error in failing to award [Joseph]
weekly temporary total disability benefits (TTD indemnity) from
after his last day of work, August 6, 2019, with legal/judicial
interest on the past due indemnity benefits.

3. The WCJ committed manifest error in failing to award [Joseph]
medical benefits.

4. The WCJ committed manifest error in failing to award [Joseph]
penalties and attorney fees.

5. The WCJ committed manifest error in failing to award [Joseph]
reimbursement of litigation expenses.

LAW AND ANALYSIS

The manifest error standard of review is the correct standard to be applied by

the appellate court in workers’ compensation cases. Dean v. Southmark Constr., 03-

1051 (La 7/6/04), 879 So.2d 112. The WCJ’s findings will not be set aside absent a

showing that they are clearly wrong. Alexander v. Pellerin Marble & Granite, 93-

1698 (La. 1/14/94), 630 So.2d 706. “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.” Blake v. Turner Indus. Grp.,

LLC, 12-140, p. 6 (La.App. 1 Cir. 9/21/12), 111 So.3d 21, 25, writ denied, 12-2288

(La. 11/30/12), 103 So.3d 376.

In general, a workers’ compensation claimant is entitled to compensation

under La.R.S. 23:1031(A) if he “receives personal injury by accident arising out of

and in the course of his employment.” The claimant “must establish that the accident

was work-related, that the accident caused the injury, and that the injury caused the

disability.” Lenox v. Cent. La. Spokes, LLC, 18-556, pp. 4-5 (La.App. 3 Cir. 2/13/19),

265 So.3d 834, 838. Thus, the claimant initially bears the burden of proving that an

accident occurred on the job and that he sustained an injury. Id. The claimant must

then prove a causal connection between the accident and the resulting disability. Id.

As explained in Lenox, 265 So.3d at 838 (citations omitted):

Even if the employee suffered from a pre-existing medical
condition, he may still meet his burden of proof of causation if he
proves that the reported accident aggravated, accelerated, or combined
with the pre-existing condition to produce a compensable disability. He
may be aided in meeting the foregoing burden by a presumption of
causation, if he can prove that before the accident he had not manifested
disabling symptoms, that such symptoms commenced with the accident
and manifested themselves thereafter, and that either medical or
circumstantial evidence indicates a reasonable possibility of causal
connection between the accident and onset of the disabling symptoms.

2

In his first assignment of error, Joseph contends that the WCJ manifestly erred

in finding that he failed to meet his burden of proving that he suffered a compensable

work-related accident to his lower back on July 25, 2019.

As stated by the WCJ, Joseph “failed to prove by a preponderance of evidence

that an injury arising out of and in the course of his employment which was causally

related to his work has occurred.” The WCJ’s finding was based on conflicting

evidence. A summary of the record evidence is set forth below.

At trial, Joseph testified that he worked for NI Welding as a commercial driver

for approximately seventeen years. In addition to driving, his job duties included

ordering cylinder tanks, picking up the tanks from one location and delivering them

to another, and filling the tanks with different gases and delivering them to customers.

Joseph’s supervisor was Gil Arabie II.

Joseph testified that on the day of his injury, he went to a facility operated by

Targa, a customer, where he was supposed to pick up one empty helium tank. Yet

the delivery ticket shows that Joseph was there to retrieve thirteen tanks, including

the empty helium tank; and this was confirmed by the testimony of his supervisor,

Gil, at trial. Joseph also testified that the empty helium tank weighed approximately

150 pounds and was tan or dark brown. In contrast, Gil testified that all helium tanks

are yellow.

Joseph then explained that while he was at the Targa facility, he was assisted

by one of its employees: an unnamed white male who was in his forties. Joseph

further explained that he picked up the bottom of the cylinder tank while the Targa

employee held the top of it, and together they pulled the tank out of the rocks and

placed it upon the liftgate of Joseph’s work truck, which was approximately ten feet

away. By contrast, Gil testified that all NI Welding employees, including Joseph,

3

are prohibited from eliciting the help of nonemployees due to liability and safety

concerns. Gil noted that Joseph could have rolled the empty cylinder tank to the

liftgate rather than asking a customer’s employee to help pick it up.

Nevertheless, Joseph testified that after the cylinder tank was secured in the

truck bed, he told the Targa employee that he had injured his back. Yet Gil testified

that NI Welding never received any documentation from Targa about the alleged

accident. Moreover, during Joseph’s deposition, he testified that the Targa employee

signed the delivery ticket after the job was finished. But Gil disputed this at trial,

explaining that the delivery ticket had not been signed by any Targa employee. And

the delivery ticket itself, which was admitted into evidence, confirms Gil’s testimony.

Next, Joseph testified that immediately after the accident, he returned to NI

Welding and told Gil what had happened: that he was involved in an accident, that

he suffered a back injury, and that he needed to see a doctor. Gil, in turn, testified

that Joseph never told him about an injury or accident on July 25, 2019. Instead,

Joseph told him that he needed to leave to see a doctor. Gil explained that he did

not pry into the reason for the doctor visit out of respect for Joseph’s privacy,

especially since Joseph did not complain of a work-related injury and there were

other employees who could cover for him. Gil testified that he first received notice

of the alleged accident when NI Welding was served with Joseph’s disputed claim.

Gil was then asked about company protocols for employee accidents.

According to Gil, when a work-related accident is reported, company policy

involves completing an accident report, notifying general counsel, and drug testing

the injured employee. None of this happened in this instance. By contrast, accident

reports were prepared in 2005 and 2015 for previous work-related injuries sustained

by Joseph.

4

Thomas Gary, another WI Welding employee, also testified at trial. Thomas

and Joseph were co-workers and friends. According to Thomas, Joseph never

mentioned that he had a work-related accident or sustained a back injury.

In addition to the witness testimony, numerous medical records were admitted

into evidence. For example, the medical records of Dr. William Lowry dated July

26, 2019 (one day after the incident), state that Joseph “is here for a recheck of low

back pain. He denies any injury or trauma, but says he has been doing some heavy

lifting at work and felt that has increase[d] his pain. Says he has had pain since

2018.” But at trial, Joseph testified that Dr. Lowry’s records were incorrect.

Regardless, Dr. Lowry excused Joseph from work until July 31, 2019.

Joseph testified that he returned to work on July 31, 2019, but the pain grew

worse causing him to return to Dr. Lowry the very next day. And this time, Dr.

Lowry excused Joseph from work until August 5, 2019. Dr. Lowry also ordered an

MRI. Thereafter, Joseph worked on August 5 and August 6, 2019. Gil testified that

Joseph performed all work duties without restrictions on those days.

The record contains two texts messages from Joseph to Gil. In the first text

message, which is dated August 6, 2019, Joseph states that his MRI results are bad

and that he would be seeing Dr. Lowry the following day. In the second text message,

which is dated August 7, 2019, Joseph states that Dr. Lowry has excused him from

work until September 5, 2019. But neither text message states that his injuries were

caused by a work-related accident.

The record also contains Joseph’s request for accommodation plan dated

August 7, 2019, along with Dr. Lowry’s corresponding physician information sheet.

Therein, Dr. Lowry states that Joseph’s job duties should be limited to operating a

motor vehicle. In response, on August 12, 2019, NI Welding agreed to this

5

accommodation. Yet the next day, NI Welding received an amended physician

information sheet from Dr. Lowry, notifying that even driving is too much.

As stated above, Joseph filed his disputed claim for compensation on August

7, 2019, which is the same day that NI Welding received Joseph’s first request for

accommodation. NI Welding contends that this is when it was first notified of

Joseph’s alleged work-related accident and injury.

The record also contains the examination report of Dr. Clark Gunderson dated

May 21, 2020. In this report, Dr. Gunderson states that he examined Joseph on May

19, 2020, for low back pain after he “was injured in July of 2019 while lifting a 150

pound cylinder while at work.” Joseph’s medical history, as stated in the report, was

provided by Joseph during his examination. And the report specifically refers to an

October 2018 incident when Joseph “woke up one morning with lower back

complaints[.]”

As to his 2018 back pain, Joseph testified at trial that he woke up experiencing

back pain in October of that year. Medical records from October 25, 2018, indicate

that Joseph’s back pain was not related to an accident. Rather, it was acute and

recurrent with no known injury. At trial, Joseph testified that he could not say that

his 2018 symptoms were work related. But in his deposition, Joseph stated that his

2018 back pain was work-related because it started while he was at work.

In summary, there are two permissible views of the evidence. The WCJ

believed Defendants’ version, finding that Joseph did not prove that his back

symptoms were caused or aggravated by a work-related accident on July 25, 2019.

“[W]here 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.”

6

Rosell v. ESCO, 549 So.2d 840, 845 (La.1989). And when two permissible views

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

erroneous or clearly wrong. Id.

In the end, the WCJ did not manifestly err in finding that Joseph failed to meet

his burden of proof as to causation. Consequently, Joseph’s remaining assignments

of error are now moot.

DISPOSITION

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

affirmed. All costs of this appeal are assessed to Joseph Demarest.

AFFIRMED.

7