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Verret v. Tyson Foods, Inc.

Court of Appeals of Louisiana, Third Circuit

April 18, 2018

FRANK J. VERRET
v.
TYSON FOODS, INC.

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 4 PARISH OF LAFAYETTE, NO. 15-01869 ANTHONY PAUL PALERMO, WORKERS' COMPENSATION JUDGE

          Jeffrey C. Napolitano Juge, Napolitano, Guilbeau, Ruli, and Frieman COUNSEL FOR EMPLOYER-APPELLANT: Tyson Foods, Inc.

          Harry K. Burdette COUNSEL FOR CLAIMANT-APPELLEE: Frank J. Verret

          Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Candyce G. Perret, Judges.

          ELIZABETH A. PICKETT JUDGE.

         Tyson Foods, Inc. appeals the judgment of the Office of Workers' Compensation (OWC) finding that the court had subject matter jurisdiction to adjudicate Frank Verret's claim against Tyson and the award of workers' compensation benefits to Mr. Verret.

         FACTS

         Mr. Verret, a resident of Lafayette, Louisiana, was employed as a long-haul truck driver for Tyson on January 25, 2015. On that date, Mr. Verret lost control of his truck and crashed into the barrier in the median of a highway in Durant County, Oklahoma. Mr. Verret suffered lacerations to his hand and complained of back pain to the emergency medical personnel who responded to the scene of the accident. He was transported to the Medical Center of Southeast Oklahoma emergency room, where he repeated his complaints of back pain. The hospital records show Mr. Verret's back was x-rayed. According to hospital records, Mr. Verret was given prescriptions for Flexeril and Prednisone, though Mr. Verret denied getting these prescriptions at trial. The emergency room records also suggest that Mr. Verret follow up with his doctor within two or three days. Mr. Verret was then transported to McKinney, Texas for mandatory drug screening before he returned to the Tyson facility in Springdale, Arkansas, where he had begun his route on January 24, 2015.

         When he returned to Springdale, Ms. Bonnie Cameron, a nurse employed by Tyson, scheduled a follow-up appointment for Mr. Verret with Dr. Karl Haws. She also gave him a voucher to have his prescriptions from the emergency room doctor filled at a local pharmacy, though Mr. Verret denies this happened. Mr. Verret saw Dr. Haws on January 27, 2015. Dr. Haws's records indicate that Mr. Verret stated that his back pain had resolved. Mr. Verret denies that he told Dr. Haws that his back pain was resolved. Dr. Haws noted that Mr. Verret could return to full-duty work.

         Tyson's employment records indicate Mr. Verret retired from Tyson on January 28, 2015. He has never returned to work.

         Mr. Verret filed a Disputed Claim for Compensation on March 26, 2015, alleging injuries to his back and shoulders. Tyson denied that he was entitled to workers' compensation benefits. Tyson also filed a motion for summary judgment (more appropriately a declinatory exception) alleging that the OWC lacked subject matter jurisdiction to adjudicate this case. The workers' compensation judge (WCJ) referred the exception to the trial. Following a trial, the WCJ found that the contract of hire between Mr. Verret and Tyson was formed in Louisiana, and therefore the OWC had subject matter jurisdiction. The WCJ further found that Mr. Verret's back injury was related to the work accident and awarded benefits retroactive to the date of the accident. The WCJ found that Mr. Verret's shoulder injury was not related to the accident. The WCJ did not award penalties and attorney fees to Mr. Verret. Tyson Food now appeals the judgment of the WCJ.

         ASSIGNMENTS OF ERROR

         Tyson alleges three assignments of error:

1. The trial court erred in denying the employer's Exception of Lack of Subject ...

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