from the Office of Workers' Compensation, District 6
Parish of Tangipahoa State of Louisiana Docket Number
14-00401 Honorable Gwendolyn F. Thompson, Judge Presiding
Lewis BarryW. Sartin, Jr. Sarah Delahoussaye Call New
Orleans, LA Counsel for Claimant/ Appellee, Reginald
D. St. John Kay H. Michiels Michael J. O'Shee Sam N.
Poole Alexandria, LA Counsel for Defendant/ Appellant,
Weyerhaeuser Holden Wood Products
BEFORE: WHIPPLE, C.J., GUIDRY, PETTIGREW, McCLENDON, AND
matter is before us on appeal by defendant/employer,
Weyerhaeuser Holden Wood Products, from a judgment of the
Office of Workers' Compensation ("OWC") in
favor of claimant/employee, Reginald Crockerham. For the
reasons that follow, we affirm in part, vacate in part, and
remand with instructions.
AND PROCEDURAL BACKGROUND
was employed by defendant for approximately eighteen years,
primarily in the position of forklift operator. On November
25, 2013, claimant filed a disputed claim for compensation
contending that he suffered a lower back injury caused by
driving a forklift with bad tires and a broken seat.
According to claimant, in 2012 and 2013, every time he would
hit a pothole or hit the lift side to side while operating
the forklift, it would "jar" his lower back and
send a sharp shooting pain down his right side to his big
toe. He contends that this "ongoing process" of
enduring these incidents caused his preexisting degenerative
condition to worsen, resulting in his lower lumbar back
injuries. After conservative treatment in the form of
multiple lumbar epidural steroid injections, claimant
eventually underwent a discectomy and a two-level fusion at
L4-L5 and L5-S1 on October 10, 2013.
matter wras tried before the OWC on October 12,
2015, with the parties stipulating to all issues except,
primarily, whether claimant suffered a work-related accident
within the course and scope of his employment with
defendant.Following the filing of post-trial
memoranda, the OWC rendered judgment on December 18, 2015,
finding that claimant proved by a preponderance of the
evidence that he suffered multiple accidents beginning in
2012, which arose out of and occurred during the course of
his employment with defendant, and that, as a result of these
accidents, claimant suffered injury to his lumbar spine. The
OWC awarded claimant temporary total disability (TTD)
benefits from April 2, 2013, and continuing forward, in the
amount of $394.13 per week, plus legal interest; granted
defendant a credit in the amount of $8, 442.34 against the
amount owed for TTD benefits; and awarded claimant past and
future medical expenses incurred for the lumbar spine, with
judgment of the OWC was accompanied by written reasons for
judgment, also issued on December 18, 2015. After hearing
from the witnesses and considering the documentary evidence
presented, the OWC issued the following findings:
The accident(s) at issue occurred when claimant was operating
"forklift number One" that had "bad
tires" and a "broken seat". These two problems
of that particular forklift combined with the potholes, which
remained despite claimant's reporting to supervisors,
caused excessive jarring of claimant's body which
resulted in repeated accidents to claimant's lumbar
spine. Despite claimant's notifications to his
supervisors about these accidents, nothing was done to
correct these problems and no reports were written despite
claimant's reporting, which began in 2012.
These problems of "bad tires", "broken
seat" and "pot holes" do not compromise job
activities that cause a "gradual deterioration or
progressive degeneration of the body" under La. R.S.
23:1021 which defines an accident. These problems were not
corrected by the employer and they continued to cause
accidents to claimant. Employer's failure to recognize or
acknowledge these accidents does not diminish the facts.
Claimant cannot read or write. His wife of many years
testified at trial that it is she that handles all of the
managerial aspects of the family. This includes almost, if
not all, of medical questionnaires, etc. that claimant had to
fill out during this long process of seeking medical
treatment. Claimant's wife is a special education teacher
in the Tangipahoa Parish school system.
When claimant initially sought medical treatment for his
lumbar spine, he was told that he had arthritis. There was no
recognition that claimant was suffering these work-related
accidents and claimant's limited educational abilities
did not help clarify this to the initial physicians.
Claimant's limited mental skills should be taken into
account when the facts of this case are considered. He is not
being given any advantage but the circumstances of the
reporting, forms filled out, discussions as to the events by
and involving claimant were considered with his mental
limitations being a part of the equation when determining
what actually happened.
Claimant last worked for defendant on April 1, 2013 when his
injuries from the repeating accidents finally resulted in his
inability to perform his work duties. On April 1, 2013,
claimant's injuries had "developed" into a
disability that rendered his work status as Temporarily
now appeals from the judgment of the OWC contending that the
OWC erred in: (1) disregarding and/or misinterpreting
applicable statutes and controlling precedent so as to find
that multiple unspecified accidents in 2012 and 2013
developed into a work-related injury, when claimant's
claim failed to meet the statutory definitions of
"accident" or "developing injury, " and
when the claim was otherwise excluded as an occupational
disease; (2) finding claimant's limited mental skills
allowed the disregard of unrefuted evidence showing the
absence of any accident; (3) denying defendant's
exception of prescription; and (4) awarding unspecified past
medical expenses and future medical expenses not yet
of Error Number One
first assignment of error, defendant contends that the OWC
erred in finding that claimant suffered "repeated
accidents, " as defined by LSA-R.S. 23:1021, and that
his injuries were not attributable to degenerative disc
disease, which defendant contends is specifically excluded as
an occupational disease pursuant to LSA-R. S. 23:1031.1.
workers' compensation claimant bears the initial burden
of establishing by a preponderance of the evidence that an
accident occurred on the job and that he sustained an injury.
Magee v. Abek, Inc., 2004-2554 (La.App.
1st Cir. 4/28/06), 934 So.2d 800, 806, writ
denied, 2006-1876 (La. 10/27/06), 939 So.2d 1287.
"Accident" is defined in LSA-R.S. 23:1021(1) as
"an unexpected or unforeseen actual, identifiable,
precipitous event happening suddenly or violently, with or
without human fault, and directly producing at the time
objective findings of an injury which is more than simply a
gradual deterioration or progressive degeneration."
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. Airman v. Washington
Parish Police Jury, 2004-0600 (La.App. 1st
Cir. 3/24/05), 907 So.2d 86, 88.
findings in a workers' compensation case are subject to
the manifest error-clearly wrong standard of review.
McCray v. Delta Industries, Inc., 2000-1694 (La.App.
1st 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 wrhether the fact finder's
conclusion was a reasonable one. Banks v. Industrial
Roofing & Sheet Metal Works, Inc., 96-2840 (La.
7/1/97), 696 So.2d 551, 556. For an appellate court to
reverse a workers' compensation judge's factual
finding, it must find from the record that a reasonable
factual basis does not exist for the finding of the
workers' compensation judge and that the record
establishes that the finding is clearly wrong. Dawson v.
Terrebonne General Medical Center, 2010-2130 (La.App.
1st Cir. 5/19/11), 69 So.3d 622, 626.
the interpretation of statutes pertaining to workers'
compensation is a question of law and warrants a de
novo review to determine if the ruling was legally
correct. Lirette v. Patterson Services, Inc.,
2005-2654 (La.App. 1st Cir. 11/17/06), 951 So.2d
223, 226. Thus, we review de novo the OWC's
statutory interpretation, while using the manifest error
standard of review for the OWC's factual findings
regarding application of the statute. See Harrelson v.
Arcadia, 2010-1647 (La.App. 1st Cir.
6/10/11), 68 So.3d 663, 666, writ denied, 2011-1531
(La. 10/7/11), 71 So.3d 316.
contends that claimant's surgery was necessitated herein
by degenerative disc disease in his lower back and not as a
result of an "accident" as defined by LSA-R.S.
23:1021. Defendant further contends that while LSA-R.S.
23:1031.1 provides that an employee shall be entitled to
workers' compensation benefits for an occupational
disease due to causes and conditions characteristic of a
particular occupation, "degenerative disc disease"
is specifically excluded from the classification of an
occupational disease. Thus, defendant submits that because
claimant's injuries resulted from degenerative disc
disease, claimant is not entitled to the benefits granted by
the OWC for maladies that are non-compensable under the
counters that the statutory law and jurisprudence do not
require claimant to be able to identify the exact time,
place, and location of the accident, and produce medical
evidence showing that the incident produced an exact change
in claimant's condition immediately following the
complained of accident, as such a burden would be impossible
for most workers sustaining compensable injuries to meet.
Claimant further contends that although he had experienced
back pain in the ten years prior to 2012, that pain or
"stiffness" always resolved. Beginning in 2012,
however, claimant contends that he suffered injuries in
several precipitous events, which directly caused pain that
was different in nature and severity than pains previously
experienced, for which he sought medical attention and
reported to defendant. Moreover, claimant contends that
strict adherence is an affront to the intended purpose of
workers' compensation law. We agree.
It is a
well-settled principle that the provisions of the
worker's compensation scheme are to be liberally
interpreted in favor of the worker. Scott v. Wal-Mart
Stores, Inc., 2003-0858 (La.App. 1st Cir.
2/23/04), 873 So.2d 664, 668, citing Bynum v. Capital
City Press, Inc., 95-1395 (La. 7/2/96), 676 So.2d 582,
586 (La. 1996). While a claimant must show that his
employment somehow caused or contributed to the disability in
order for the employee to recover, he need not establish the
exact cause. Elswick v. Highway Transport, 96-0014
(La.App. 1stCir. 9/27/96), 680 So.2d 1364, 1367.
Moreover, claimant's own testimony accepted by the trier
of fact may be sufficient to prove causation by a
preponderance of evidence, provided: (1) no other evidence
discredits or casts serious doubt upon the claimant's
version of the incident, and (2) the claimant's testimony
is corroborated by circumstances surrounding the alleged
incident. Bruno v. Harbert International Inc., 593
So.2d 357, 361 (La. 1992).
instant case, claimant testified that he had
"stiffness" in his back for ten years before the
Fall of 2012 and Spring of 2013, but it had always gotten
better and he was able to go back to work and perform his
job. He explained that, beginning in September of 2012,
however, "[e]very time [he] would hit a hole or hit the
lift side to side, it would jar [his] lower back and send
pain down [his] right side to [his] big toe." Claimant
took photographs of the tires on the forklift to show his
wife why he was hurting so much and why he could not get out
of bed in the morning. He also testified that he reported the
problems with the forklift and resulting pain he was
experiencing to his supervisor, Joe Hart. Claimant testified
that he "would complain ... [a]nd after [he] complained,
they'd tell [him], okay, they was going to take care of
it." Claimant stated that he would then continue to do
"the best [he] can ...