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Jeansonne v. Department of Public Safety

Court of Appeals of Louisiana, Third Circuit

June 6, 2018

GARY JEANSONNE
v.
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS YOUTH SERVICES, OFFICE OF JUVENILE JUSTICE AND SEDGWICK CLAIMS MANAGEMENT SERVICES

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 02 PARISH OF AVOYELLES, NO. 16-03419 JAMES L. BRADDOCK, WORKERS' COMPENSATION JUDGE.

          Maria A. Losavio Losavio Law Office, LLC COUNSEL FOR PLAINTIFF/APPELLANT: Gary Jeansonne

          Jeff Landry Attorney General Bernetta Y. Bryant Assistant Attorney General COUNSEL FOR DEFENDANT/APPELLEE: Department of Public Safety and Corrections Youth Services, Office of Juvenile Justice

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery, Judges.

          SHANNON J. GREMILLION JUDGE.

         Gary Jeansonne sought benefits from his employer, the State of Louisiana, Department of Public Safety and Corrections Youth Services, Office of Juvenile Justice, in connection with injuries he allegedly sustained in two work-related accidents. The State denied both claims. The workers' compensation judge (WCJ) concluded that the claimant proved only one of the alleged accidents and denied penalties and attorney fees as to both claims. The claimant appeals. For the following reasons, we reverse in part and affirm in part.

         FACTS AND PROCEDURAL HISTORY

         Gary Jeansonne worked at the Cecil J. Picard Youth Center (hereinafter "the Center") in Bunkie, Louisiana, in the position of "Maintenance 2."[1] He began working there in 2001. His supervisor, Mr. Chris Hines, described Mr. Jeansonne as a "good employee" and a "[h]ard worker." Mr. Hines also consistently gave Mr. Jeansonne good evaluations. Also, according to Mr. Hines, Mr. Jeansonne did his work without complaining and was consistent in his work attendance.

         Mr. Jeansonne last worked at the Center on March 17, 2016. On June 2, 2016, Mr. Jeansonne filed a disputed claim for workers' compensation form in which he asserted that he injured his back in the course and scope of his employment on June 10, 2015 and again on or about March 9, 2016. The claim was brought against the Department of Public Safety and Corrections, Youth Services, Office of Juvenile Justice[2] and Sedgwick Claims Management[3] (hereinafter collectively referred to as "the State"). The State answered and denied that the claimant sustained an injury on or about the dates set forth.

         The matter proceeded to trial. Mr. Jeansonne testified that the first alleged workplace accident occurred while he was assisting in the kitchen during the supper shift on June 10, 2015. He explained that, after lifting a pot to drain grease from it, he experienced pain radiating into his right leg. Mr. Jeansonne testified that the pain was immediate; that he knew something was wrong; that he told the cook on duty, Sarah Howard, that he had hurt himself; and that he sat down after they caught up on the work. Mr. Jeansonne's accident was corroborated by the testimony of Ms. Howard. During the course of the evening's work, Mr. Jeansonne again experienced back pain radiating into his hip and groin area. He explained that Ms. Howard then advised him to sit down again, which he did.

         Mr. Jeansonne testified that the following morning, he telephoned his supervisor, Christopher Hines, to tell him that he was unable to come to work due to back pain but did not inform Mr. Hines that the back pain was work related. Mr. Jeansonne testified that Mr. Hines visited him at his home three days later. Again, Mr. Jeansonne did not tell Mr. Hines that the pain was work related. When asked about this, Mr. Jeansonne testified, "Because I -- I love my job. I'm dedicated to my job. I invest a lot in my job, I don't -- I just -- I like my job. . . . the right thing to do is to put it on my work -- my -- my insurance, so I can get back to my job and go to -- back to work."

         On July 2, 2015, Dr. George Williams began treating Mr. Jeansonne for back pain. Mr. Jeansonne's medical records from this visit indicate that the injury occurred at home, and the record from this initial visit with Dr. Williams was to prove pivotal in the WCJ's decision.[4]

         Mr. Jeansonne asserted that the report is "not accurate" and that he told Dr. Williams that the injury happened at home because he "wanted to go back to work." Mr. Jeansonne explained that, other than the incident in the Center's kitchen, nothing happened at home or elsewhere to explain why his back started hurting at that time. Dr. Williams testified:

Q. Okay. Did you ask him why he didn't tell you about the work accident before you did back surgery on him?
A. You know, he may have. It may have been that he didn't want to fool with workman's [sic] comp, having to go through all the rigmarole, you know.

         The remainder of Dr. Williams's records demonstrate widely varying dates of injury, including notations about the accident having occurred at home.

         Dr. Williams ultimately performed back surgery on Mr. Jeansonne to fuse the L4-5 lumbar vertebral bodies on July 17, 2015. Mr. Jeansonne testified that Mr. Hines and the regional supervisor over the Center, Johnny Qualls, visited him after his surgery and that he again did not report a work-place accident to them.

         Mr. Jeansonne utilized his private health insurance for his medical expenses, and he used personal leave time during the recovery period. Theresa Jeansonne, Mr. Jeansonne's wife, also testified at the hearing and explained that they chose to use private health insurance because they thought that Mr. Jeansonne would be unable to have the surgery if he reported the injury as a workers' compensation accident. Alternatively, she said they thought that it would be quicker under private health insurance, thus allowing Mr. Jeansonne to return to work sooner.

         On March 8, 2016, Dr. Williams granted Mr. Jeansonne a full release to return to work. Mr. Jeansonne stated that when he was reporting back to work on March 9, 2016, he "felt good" and as if he "could do the job . . . no problem, " even knowing that he was going to have to do his full duties. Mr. Hines, though, assigned an inmate to assist Mr. Jeansonne with his tasks, but Mr. Jeansonne explained that the assistant never returned after lunch on the second day. Mr. Hines testified that he did not know whether the assistant left at some point because it would have been Mr. Jeansonne's job to supervise him. Mr. Jeansonne testified that he spent the initial days marking the soccer field, grouting the showers, working on vanities, removing vanities, removing faucets, and lifting toilets. He explained that when he went home every day, he would "go straight to bed" because his back was "getting . . . worse and worse." When asked whether there was a specific task that caused him to feel pain, Mr. Jeansonne said, that at midday on March 17, he had been changing out a faucet in one of the facility's cabins and, "I felt that something was broken again. . . .That's the way it felt when I come out from under that lavatory. I said 'Well, something -- something's not right.'"

         Mrs. Jeansonne testified that "from March 9 on, " Mr. Jeansonne complained of back and leg pain. She stated that his complaints subsequently increased and that every night was worse than the night before. Mrs. Jeansonne testified that Mr. Jeansonne had indicated to her that he felt like he had reinjured himself at work. She could not recall specifically what Mr. Jeansonne said had caused him to reinjure his back, but she testified that he told her during this time period that he was "[l]ifting up on a commode, grouting floors, wall, on the lawnmower . . . ."

         Mr. Jeansonne said that on March 17, 2016, he went to the Center's office, turned in his keys, and told Mr. Hines, "I'm broken up. The wheel is broken" and "I can't perform the duties . . . ." Mr. Jeansonne testified that when Mr. Hines asked him whether his back was all right, he answered, "'I don't know.'" He testified that Mr. Hines also asked whether it was job-related to which he responded, "'I can't tell you if it was job-related, '" and "'I know I didn't do nothin' [sic] at my house.'" According to Mr. Hines, when he asked Mr. Jeansonne if he had gotten hurt on the job, Mr. Jeansonne said, "No, Chris, I just can't do this kinda [sic] work anymore. The wheel is broken." Regarding the latter statement, Mr. Hines explained that he did not understand what it meant. Thereafter, Dr. Williams restricted Mr. Jeansonne from work again.

         Mr. Jeansonne testified that he subsequently reported the alleged June 10, 2015 accident to the Center's human resources representative, Carolyn Hollins, on March 31, 2016. To corroborate this testimony, Mr. Jeansonne introduced Ms. Hollins' adjuster's log into evidence. An entry dated April 14, 2016 reads, in pertinent part:

The claimant contacted me on 3/31/16 around 1:50 P.M. to advise of this 2015 injury. He indicated that he told his boss that he was in back pain following the incident but didn't [sic] inform him that the injury occurred at work. When asked why hes [sic] just reporting it he stated that he didn't [sic] want to lose his job or sue his employer by filing a comp claim. He just wanted to get better and return to work. He also mentioned that he injured his back while working at the Department of Education during Hurricane Gustav but failed to report that injury as well which required back surgery. He re-injured his back at work on 6/10/15 resulting in additional surgery to his pre-existing condition.

         Mr. Jeansonne admitted that this conversation with Ms. Hollins was the first time he reported the alleged June 10, 2015 accident as work-related to someone associated with the State. He testified that during this conversation, he did not report the alleged March 9, 2016 accident to Ms. Hollins. Mr. Jeansonne admitted that he knew he was to report workplace accidents. He also confirmed that he had reported a work accident in 2014. At the hearing, Mr. Hines also testified that his job duties include instructing employees on the proper protocol for reporting work accidents. Pursuant to this, he said that he has held safety meetings at which he reviews the center's policies and forms. He specifically confirmed that Mr. Jeansonne had attended such a meeting.

         Mr. Hines testified that Mr. Jeansonne never told him that his back pain was work-related. Rather, Mr. Hines explained that he first learned of an alleged June 2015 workplace accident on March 31, 2016 from Ms. Hollins, who instructed him to contact Mr. Jeansonne and Ms. Howard to get statements from them. Mr. Hines stated that he obtained Mr. Jeansonne and Ms. Howard's statements[5] and that he also completed an "unusual occurrence report" concerning the alleged June 2015 accident. Mr. Hines testified that he was first notified about the alleged March 2016 workplace accident by Ms. Hollins on June 21, 2016 at which time he wrote a statement about what he recalled happening when Mr. Jeansonne came into his office on March 17, 2016.

         After the alleged March 2016 accident, Mr. Jeansonne returned to Dr. Williams for treatment. Regarding his first visit on May 24, 2016, Mr. Jeansonne testified that he reported to Dr. Williams that he had injured himself at work in June 2015 and reinjured himself in March 2016.[6] Ultimately, Dr. Williams ordered an MRI, which revealed that Mr. Jeansonne's L3-4 intervertebral disc is herniated and compressing the nerve root. Dr. Williams has recommended that Mr. Jeansonne undergo surgery again. Dr. Williams testified that Mr. Jeansonne suffered an accident, but he could not say whether the accident occurred at home or at work nor which tasks would have caused the renewed back problem. Dr. Williams also opined, in response to cross-examination questioning, that Mr. Jeansonne's condition could represent a degenerative process. Additionally, in their respective testimonies, Dr. Williams and Mr. Jeansonne both confirmed that, prior to the alleged accidents, Mr. Jeansonne had been treated for back pain and had undergone surgeries on his back.

         After the hearing, the WCJ rendered a judgment finding that the claimant sustained an accident in the course and scope of his employment on June 10, 2015 and was entitled to temporary total disability benefits from June 19, 2015 through March 8, 2016 as well as out-of-pocket medical expenses. However, concerning the June 2015 accident, the WCJ rendered judgment in favor of the State, concluding that the claimant failed to prove that he sustained an accident in the course and scope of his employment on or about March 9, 2016. In so ruling the WCJ stated:

Mr. Jeansonne is a person of, in my view, small credibility, if any credibility at all. We have an individual who seems self-centered. He testified he never reported this because he was afraid he would lose his job. This was just the belief Mr. Jeansonne had that Mr. Qualls said was prevalent in the rural community. There is no direct evidence that Mr. Jeansonne knew of anyone who had been retaliated against for reporting a job accident who had lost a job for having had a job accident and a job injury, and again, it's just a belief of Mr. Jeansonne. He was willing to misrepresent to Dr. Williams that this was not a job accident. He told Dr. Williams it occurred at home, it was -- he said it occurred eight weeks prior to seeing Dr. Williams on one occasion, which would have made ...

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