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Tubre v. Automobile Club of Southern California

Court of Appeal of Louisiana, Fourth Circuit

February 4, 2015

MARK TUBRE
v.
AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA AND TRISTAR RISK MANAGEMENT

Page 1022

APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION. NO. 2013-00490, DISTRICT " EIGHT" . HONORABLE ROBERT VARNADO , WORKERS' COMPENSATION JUDGE.

PATRICK H. PATRICK, PATRICK MILLER, L.L.C., New Orleans, Louisiana, Counsel for Plaintiff/Appellant.

SCOTT F. DAVIS, ALLEN & GOOCH, ALC, Metairie, Louisiana, Counsel for Defendants/Appellees.

(Court composed of Chief Judge James F. McKay III, Judge Dennis R. Bagneris, Sr., Judge Max N. Tobias, Jr.). BAGNERIS, J., CONCURS WITH REASONS.

OPINION

Page 1023

[2014-0859 La.App. 4 Cir. 1] JAMES F. MCKAY III, JUSTICE.

Plaintiff, Mark Tubre, appeals from a judgment of the Office of Workers' Compensation (" OWC" ) finding that he failed to prove the occurrence of a work-related accident and, thus, was not entitled to workers' compensation benefits. We affirm.

STATEMENT OF FACTS

Plaintiff filed a Disputed Claim for Compensation on January 23, 2013, seeking workers' compensation benefits for a back injury he allegedly sustained at work in a December 25, 2012 unwitnessed accident. At the time, plaintiff was employed with Automobile Club of Southern California (" AAA" ). Defendants, AAA and The Hartford Insurance Company, maintain that no accident occurred.

Following a trial on the merits, judgment was rendered in favor of defendants, dismissing plaintiff's claims for workers' compensation benefits. As conveyed in written reasons for judgment, the OWC judge determined that plaintiff and his three witnesses lacked credibility.

Plaintiff testified that he worked as the manager at the AAA fleet facility in New Orleans. As the manager, he was on call 24/7, 365 days a year. Plaintiff described being the only person at work on Christmas Day in 2012, when he [2014-0859 La.App. 4 Cir. 2] slipped or tripped on a palette as he was putting a battery on a shelf. As a result, plaintiff claims that he aggravated a preexisting back injury. Plaintiff explained that he tried, unsuccessfully, to reach the supervisor who was supposed to be there. Plaintiff did not provide the name of the supervisor.

Plaintiff presented three witnesses to corroborate his claim that he sustained a work-related injury. Daniel Edwin Oser, plaintiff's neighbor, testified that he visited plaintiff's home around 4:00 p.m. on Christmas Day, to discover plaintiff stretched out on the sofa. Plaintiff stated that he hurt his back at work. Plaintiff's brother, Henry Larry Tubre, Jr., ...


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