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Millender v. BASF Corp.

Court of Appeal of Louisiana, First Circuit

December 23, 2014

KEVIN TODD MILLENDER
v.
BASF CORPORATION AND ZURICH AMERICAN INSURANCE COMPANY

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On Appeal from the Office of Workers' Compensation, District 5, In and for the Parish of Ascension, State of Louisiana. No. 11-10346. The Honorable Pamela A. Moses-Laramore, Workers' Compensation Judge Presiding.

Kevin Todd Millender, Plaintiff/Appellant, Pro se, Baton Rouge, Louisiana.

Janice B. Unland, John J. Rabalais, Heather W. Blackburn, Covington, Louisiana, Attorneys for Defendants/ Appellees, BASF Corporation and Zurich, American Insurance Company.

Denise A. Vinet, Baton Rouge, Louisiana, Intervenor/ Appellee, In Proper Person.

BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.

OPINION

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[2013 2253 La.App. 1 Cir. 2] DRAKE, J.

Plaintiff-appellant, Kevin Todd Millender, appeals the judgment of the workers' compensation judge (WCJ), in favor of BASF Corporation (BASF) and Zurich American Insurance Company (Zurich). We affirm the judgment of the WCJ.

FACTUAL AND PROCEDURAL HISTORY

It is undisputed that Millender sustained an injury to his left hand while in the course and scope of his employment with BASF on August 12, 2007.[1] On March 10, 2008, Millender filed a Disputed Claim for Compensation, which resulted in a consent judgment that was signed on May 6, 2009. On December 6, 2011, Millender filed another Disputed Claim for Compensation claiming indemnity benefits, authorization for medical treatment, and penalties and attorney's fees. Millender amended his Disputed Claim for Compensation to request indemnity specifically for the period September 9, 2011, through November 17, 2011, as well as additional penalties and attorney's fees.

A trial was held before the WCJ on July 3, 2013, and a written judgment was signed on July 25, 2013. The judgment contained fourteen findings. Millender appeals each finding, although he agrees with some of the WCJ's findings. This court will address each of those findings.

STANDARD OF REVIEW

In workers' compensation cases, the appropriate standard of review to be applied by appellate courts is the manifest

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error-clearly wrong standard. Smith v. Lafarge North America, L.L.C., 12-0337 (La.App. 1 Cir. 11/2/12), 111 So.3d 379, 382; Dawson v. Terrebonne General Medical Center, 10-2130 (La.App. 1 Cir. 5/19/11), 69 So.3d 622, 626. To reverse a factual finding by a workers' compensation judge, the appellate court must find from the record that a [2013 2253 La.App. 1 Cir. 3] reasonable factual basis does not exist for the finding of the judge and that the record establishes that the finding is clearly wrong. Smith, 111 So.3d at 382; Dawson, 69 So.3d at 626. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact-finder's conclusion was a reasonable one. Smith, 111 So.3d at 382; Dawson, 69 So.3d at 626. Where two permissible views of the evidence exist in a workers' compensation case, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Smith, 111 So.3d at 382; Dawson, 69 So.3d at 627.

DISCUSSION

Date of Injury and Middle Finger Injury

The judgment states that Millender was injured on August 8, 2007. Millender claims the WCJ used the wrong date of injury. The record shows that the date of injury was August 12, 2007, and the parties stipulated to this as the date of injury on the day of trial. Thus, we will amend the judgment to the correct recited date of injury. See La. C.C.P. art. 2164.

The WCJ found that although Millender originally sustained an injury to his ring finger on his left hand, for which he underwent surgery for trigger finger, he did not carry his burden of proof that his complaints as to his middle finger on his left hand were related to the initial injury. Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 04-0600 (La.App. 1 Cir. 3/24/05), 907 So.2d 86, 88. A court of appeal may not set aside a hearing officer's finding of fact in absence of " manifest error" or unless it is " clearly wrong." McCray v. Delta Industries, Inc., 00-1694 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. [2013 2253 La.App. 1 Cir. 4] Banks v.  Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551, 556. If the fact finder's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990).

In order for a claimant to be entitled to recover workers' compensation benefits, he must prove, by a preponderance of the evidence, that a work-related accident occurred and that an injury was sustained. In certain events a worker's testimony is sufficient to discharge the burden of proving an " accident," provided that two elements are first satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident, and (2) the workers testimony is corroborated by the circumstances surrounding the alleged incident. Vicknair v. Wal-Mart Stores, Inc., 12-0011 (La.App. 1 Cir. 12/21/12), 111 So.3d 1065, 1068. See also Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La. 1992).

Generally, the effect and weight to be given medical expert testimony is within the broad discretion of the

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factfinder. Yohn v. Brandon, 01-1896 (La.App. 1 Cir. 9/27/02), 835 So.2d 580, 584 writ denied, 02-2592 (La. 12/13/02), 831 So.2d 989. A trier of fact may accept or reject, in whole or in part, the opinions expressed by an expert. See Harris v. State, Department of Transportation and Development, 07-1566 (La.App. 1 Cir. 11/10/08), 997 So.2d 849, 866, writ denied, 08-2886 (La. 2/6/09), 999 So.2d 785. Further, where the testimony of expert witnesses differs, the trier of fact has great, even vast, discretion in determining the credibility of the evidence, and a finding in this regard will not be overturned unless it is clearly wrong. Cotton v. State Farm Mutual Automobile  Insurance Company, [2013 2253 La.App. 1 Cir. 5] 10-1609 (La.App. 1 Cir. 5/6111), 65 So.3d 213, 220, writ denied, 11-1084 (La. 9/2/11), 68 So.3d 522.

The evidence at trial regarding the middle finger injury consisted of the testimony of Millender and the depositions of Dr. Darryl Peterson, his treating physician, Dr. Michael Robichaux, the defendants' choice of physician, and Dr. Robert Morrow, Jr., who performed an independent medical exam (IME) at the request of the court. The WCJ placed great weight on the testimony of Dr. Morrow, who found Millender's complaints as to his middle finger to be unrelated to the accident. She also took into consideration the corroborating testimony of Dr. Robichaux that the middle finger complaints were unrelated to the accident. We find the WCJ's findings are reasonable in light of the entirety of the record. Although Dr. Peterson may have ...


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