David Brister v. E K Construction Company, Inc. & Lwcc

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-409

DAVID BRISTER

VERSUS

E. K. CONSTRUCTION COMPANY, INC., ET AL.

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ON APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT # 03
PARISH OF CALCASIEU, NO. 21-00493
SHANNON BRUNO BISHOP, WORKERS’ COMPENSATION JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Elizabeth A. Pickett, Jonathan W. Perry and Ledricka J. Thierry,
Judges.

AFFIRMED.

R. Scott Iles
Attorney at Law
1200 West University Avenue
Lafayette, LA 70506
(337) 234-8800
COUNSEL FOR CLAIMANT/APPELLANT:
David Brister

M. Jeremy Berthon
Attorney at Law
2237 S. Acadian Thruway
Baton Rouge, LA 70898-8001
(225) 231-0925
COUNSEL FOR EMPLOYER/APPELLEE:
E. K. Construction Company, Inc.
COUNSEL FOR INSURER/APPELLEE:
Louisiana Workers’ Compensation Corporation

PERRY, Judge.

In this case, the claimant appeals the judgment of the Workers’ Compensation

Judge (“WCJ”) in favor of the employer and its workers’ compensation insurer,

dismissing his workers’ compensation demand. For the reasons and law stated

below, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 25, 2021, David Brister (“Mr. Brister”) filed a disputed claim for

compensation naming his employer, E. K. Construction Company, Inc. (“E. K.

Construction”), and its insurer, Louisiana Workers’ Compensation Corporation

(“LWCC”), as defendants. Mr. Brister, a nineteen-year employee of E. K.

Construction, alleged in his petition that he fell from a piece of heavy machinery on

August 4, 2020, and injured his back. Although his petition does not allege that he

reported his injury, Mr. Brister contends that he consulted a doctor who ordered X-

rays and advised him to not return to work for a two-week period. Mr. Brister further

contends in his petition that when he returned to work, he was referred to an

orthopedist and he was advised that he needed an MRI. Also, Mr. Brister alleged

that his injury and related pain made “it difficult to move and he therefore advised

that he would not be in work on a Friday, after working 48 hours that week.”

However, as alleged in his petition the following Monday, “he was terminated from

his job for [not] working the previous Friday.” At this point, Mr. Brister contended

that based on “[t]his repetitive injury” he was temporarily and totally disabled.

At trial, the WCJ heard the testimony of Mr. Brister, Sandy Smith (“Ms.

Smith”), the president of E. K. Construction, and Kyler Smith (“Mr. Smith”), a

supervisor for E. K. Construction. It also received into evidence the medical records

of Rebecca Kiely (“Ms. Keily”), the physician assistant who treated Mr. Brister, and

the medical records of Beauregard Memorial Hospital (“Beauregard Memorial”).

After considering the evidence, the WCJ stated in its written reasons for judgment:

In the instant matter, there are no witnesses to the accident.
Additionally, the medical records are devoid of any mention of a work
accident. Instead, the medical records indicate that Claimant had been
suffering with hip and back pain for two years. There is no mention in
the records that a work accident caused or aggravated Claimant’s
condition.

....

In weighing the evidence, the Court listened to the testimony of
the witnesses and reviewed the evidence. Upon doing such, the Court
finds that Claimant failed to meet his burden of proving a work related
accident occurred on August 4, 2020 as provided in La.R.S. 23:1021(1).
Additionally, Claimant failed to prove a causal connection between a
work accident and his injuries. Lastly, Claimant failed to prove that he
is entitled to workers’ compensation benefits as a result of a work
accident.

APPELLATE PRACTICE

Before reaching Mr. Brister’s argument, we find it necessary to comment on

the Uniform Rules of the Courts of Appeal. These rules help focus attention on the

issues before the court and assist the court in applying the law to the facts of each

case.

The Uniform Rules of the Courts of Appeal, among other appellate matters,

provide rules for the writing of briefs. One aspect bears mentioning because Mr.

Brister’s brief in the present case lacks references to the specific page numbers of

the record.

From the outset, we observe that Uniform Rules—Courts of Appeal, Rule 2-

12.4(A)(2014) provides in pertinent part: “The brief of the appellant shall contain,

under appropriate headings and in the order indicated: . . . . (7) a statement of facts

relevant to the assignments of error and issues for review, with references to the

specific page numbers of the record[.]”

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Uniform Rules—Courts of Appeal, Rule 2-12.4(B)(3)(2014) (emphasis

added) further provided as follows: “The court may disregard the argument on an

assignment of error or issue for review if suitable reference to the specific page

numbers of the record is not made.”

Finding discretion in Uniform Rules—Courts of Appeal, Rule 2-12.4

(B)(3)(2014),1 we have chosen to address Mr. Brister’s argument even though the

brief fails to reference the specific page numbers of the record relative to factual

assertions and the rulings of the WCJ.

APPELLANT’S ASSIGNMENT OF ERROR

In his sole assignment of error, Mr. Brister contends the WCJ erred in ruling

that he failed to meet his burden of proving he sustained an accident and resultant

injuries arising out of and in the course and scope of his employment, thereby

dismissing his claims against all defendants.

APPELLANT’S ARGUMENT

Mr. Brister contends that he proved he sustained an unwitnessed accident on

the job on August 4, 2020, that he was temporarily and totally disabled from work

and that this was confirmed by his treating physician. He further contends that

neither defendant presented a contrary opinion.

1
Effective January 1, 2023, the wording of Uniform Rules—Courts of Appeal, Rule 2-
12.4 (B)(3) (emphasis added) has been amended. It now states, “The court may not consider the
argument on an assignment of error or issue for review if suitable reference to the specific page
numbers of the record is not made.” Mr. Brister’s brief was filed before the amendment to Uniform
Rules—Courts of Appeal, Rule 2-12.4(B)(3) took effect; thus, it does not fall under the amendment
noted above.

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APPELLEE’S POSITION

E. K. Construction and LWCC note that Mr. Brister’s accident was

unwitnessed. However, they acknowledge that even an unwitnessed accident may

be proved if the worker can establish that nothing casts doubt on the worker’s version

and the worker’s testimony is corroborated. They argue that the record shows Mr.

Brister failed to satisfy either of those requirements.

LAW AND DISCUSSION

In Richard v. Workover & Completion, 00-794, pp. 2-3 (La.App. 3 Cir.

12/6/00), 774 So.2d 361, 363-64, we stated:

A workers’ compensation judge’s findings of fact are subject to
a manifest error or clearly wrong standard of review. Johnson v.
Transamerican Waste Co., 99–190 (La.App. 3 Cir. 6/2/99); 741 So.2d
764. In applying the standard of review, great weight is given the
workers’ compensation judge’s factual findings, its reasonable
evaluations of the witnesses’ credibility, and its reasonable inferences
of fact. Dixon v. Louisiana Restaurant Ass’n, 561 So.2d 135 (La.App.
3 Cir.1990). See also Stobart v. State, Through the Dep’t of Trans. &
Dev., 617 So.2d 880 (La.1993).

In order for a claimant to recover workers’ compensation
benefits, he or she must prove by a preponderance of the evidence that
a work-related accident occurred, and that an injury was sustained.
La.R.S. 23:1031. “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.” Bruno v. Harbert
Int'l Inc., 593 So.2d 357, 361 (La.1992). A workers’ compensation
judge’s determination as to whether the worker’s testimony is credible
and whether the worker has [met] his or her burden of proof are
questions of fact, which will not be disturbed on appeal absent manifest
error or unless they are clearly wrong. Id.; Castille v. Leesville Lumber
Co., 93–1091 (La.App. 3 Cir. 4/6/94), 635 So.2d 643, writ denied, 94–
1147 (La.6/24/94), 640 So.2d 1351.

Mr. Brister presented limited evidence in support of his workers’

compensation claim.2 As noted earlier, Mr. Brister’s case consisted of his testimony,

2
At the commencement of trial, the parties also entered the following stipulations: (1)
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the first report of injury, his pay records from April 1, 2020, to September 9, 2020,

the medical records of Ms. Kiely, and the medical records of Beauregard Memorial.

Mr. Brister contended that he notified his employer of the accident on or near

the time of the alleged accident. He also urged that his medical records supported

his contention that he suffered an accident while he worked on August 4, 2020.

In its written reasons for judgment, the WCJ summarized the evidence as

follows:

Claimant testified that he was involved in a work accident on August 4,
2020 when he fell from a piece of equipment four feet to the ground
and landed on his tailbone. He stated he rested for a while and then
returned to the equipment to work. He stated he did not report the
accident because he thought he would get better. He testified that he
knew workers are supposed to inform Sandy Smith, the President of the
company, if they are hurt on the job. However, he did not report an
accident. Claimant testified that he injured his hip and back and there
is nothing else that would cause his pain. However, he confirmed that
he had muscle spasms in the past. Claimant testified that he later
informed Sandy Smith and his supervisor, Kyler Smith about his
accident. However, they both dispute that Claimant reported an
accident. He testified that he informed Kyler Smith that he was going
to the doctor. He stated that he informed Kyler Smith that he was going
to NASCAR for four days and Kyler Smith said he could only have one
day off.

Kyler Smith testified at trial that Claimant did not inform him
that he had a work accident. He testified that the employees know that
they are supposed to report a work accident to him or Sandy. Kyler
Smith testified that Claimant did not report a work accident. He stated
that Claimant asked for time off because he was sore, but Claimant did
not tell him the cause of the pain. He testified that Claimant was
terminated because he was a no-show at work for four days. He stated
that Claimant was needed because of the increased work following
Hurricane Laura.

Sandy Smith testified that Claimant never informed her of a work
accident. She testified that he told her he was in pain and required
surgery, but he said it was because of old age. She testified that he
informed her that he was going to Texas for a doctor’s appointment and
she gave him one day off. She testified that she terminated him because

LWCC provides E. K. Construction with workers’ compensation insurance; (2) Mr. Brister was
employed by E. K. Construction on August 4, 2020; (3) Mr. Brister no longer worked for E. K.
Construction after September 2, 2020; and (4) Mr. Brister’s average weekly wage was $660.

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he did not show up for work after being instructed to do so. She stated
that she found out he went to Texas to drive in NASCAR.

Claimant testified that he injured his back and leg as a result of
the work accident. On August 13, 2020, he presented to Beauregard
Family Medical Center with complaints of right hip pain. He reported
“the hip pain has been gradual and has been occurring in a persistent
pattern for 2 years. . . . The pain is aggravated by any movement. There
are no relieving factors.” The records also show that causative factors
include driving, rising from seated position, prolonged sitting and
walking. On August 20, 2020, he reported to Beauregard Family
Medical Center for the results of his x-ray. At that time, he had no
complaints. The x-rays showed degenerative changes to the lower back
and bilateral hips. Claimant’s medical records do not make any
mention of a work accident. Additionally, the records make no mention
of work activities aggravating or exacerbating his hip or back pain.
Claimant testified that he stopped working because he was in pain. He
also testified that he had no doctor restrictions and he was tired of
working due to the increased work following Hurricane Laura.

The record fully supports the WCJ’s understanding of the testimony.

The record shows that although this alleged accident may not have been

witnessed, Mr. Brister worked daily with a three-man crew. They traveled together

to and from the work site and worked in proximity to each other. Although they

may have been able to provide some corroboration to Mr. Brister’s assertions, none

of these individuals were deposed or were called to testify. Additionally, although

the record establishes that Mr. Brister was married, his wife was not called to

corroborate her husband’s assertions regarding the alleged work accident.

We further note that even though the record shows Ms. Kiely ordered an MRI

on August 20, 2020, and referred Mr. Brister to an orthopedist on March 4, 2021,

nothing in the record shows that the MRI was completed. And, although Mr. Brister

testified that he was seen and treated by an orthopedist in Lake Charles, he only

identified the doctor as Dr. Lowery. No dates of treatment were provided and no

medical records or testimony from this doctor was provided to the WCJ. All that

Mr. Brister stated was, “He gave me shots in my back and he burnt three of my

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nerves in my back between my joints in my back bone to kill the pain.” Again, even

if this treatment occurred, no evidence was produced which linked it to a work-

related accident.

Based upon the foregoing, we find the WCJ was neither clearly wrong nor

manifestly erroneous when it determined that the evidence Mr. Brister presented did

not establish that a work-related accident occurred and that an injury was sustained.

DECREE

For the foregoing reasons, we affirm the judgment of the Workers’

Compensation Judge. All costs of this appeal are assessed against David Brister.

AFFIRMED.

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