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Crockerham v. Weyerhaeuser Holden Wood Products

Court of Appeals of Louisiana, First Circuit

June 2, 2017


         Appealed from the Office of Workers' Compensation, District 6 Parish of Tangipahoa State of Louisiana Docket Number 14-00401 Honorable Gwendolyn F. Thompson, Judge Presiding

          Pete Lewis BarryW. Sartin, Jr. Sarah Delahoussaye Call New Orleans, LA Counsel for Claimant/ Appellee, Reginald Crockerham

          Peggy D. St. John Kay H. Michiels Michael J. O'Shee Sam N. Poole Alexandria, LA Counsel for Defendant/ Appellant, Weyerhaeuser Holden Wood Products


          WHIPPLE, C.J.

         This 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.


         Claimant 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.

         The 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.[1]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 interest.

         The 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 Totally Disabled.

         Defendant 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 incurred.


         Assignment of Error Number One

         In its 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.

         A 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.

         Factual 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.

         However, 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.

         Defendant 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.[2] 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 statutory scheme.

         Claimant 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).

         In the 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.[3] 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 ...

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