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Chaisson v. Pellerin & Sons, Inc.

Court of Appeals of Louisiana, Third Circuit

April 3, 2019

DAVID CHAISSON
v.
PELLERIN & SONS, INC.

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT NO. FOUR PARISH OF LAFAYETTE, NO. 17-04379 ANTHONY PALERMO, WORKERS' COMPENSATION JUDGE

          Tracy P. Curtis The Glenn Armentor Law Corporation COUNSEL FOR PLAINTIFF/APPELLANT: David Chaisson

          Jeffrey J. Warrens Johnson, Rahman & Thomas COUNSEL FOR DEFENDANT/APPELLEE: Pellerin & Sons, Inc.

          Court composed of John D. Saunders, Van H. Kyzar, and Candyce J. Perret, Judges.

          VAN H. KYZAR JUDGE

         The plaintiff in this workers' compensation case, David Chaisson, appeals from a judgment finding that he failed to prove that he suffered a work-related accident and dismissing his claim against the defendant, Pellerin & Sons, Inc., with prejudice. For the following reasons, we affirm.

         DISCUSSION OF THE RECORD

         Mr. Chaisson was a twenty-five year employee of two family-owned businesses, Pellerin & Sons, Inc. (Pellerin & Sons), a demolition company, and Pellerin & Wallace, Inc., a roofing company. He allegedly suffered a work-related injury on June 12, 2017, while working as a helper on a Pellerin & Sons' roll-off truck. The truck, driven by David Pellerin (David), a co-owner of Pellerin & Sons, was used to transport dumpsters and consisted of a cab and a rear chassis, which contained a wench and a loading mechanism. During loading, the truck is backed up to the dumpster, after which a helper attaches the wench cable to the front of the dumpster, which is then pulled onto the rear chassis. The process is reversed during unloading. During transport, the rear of the dumpster is strapped to the chassis by one strap, as required by the department of transportation. [1]

         As the driver's helper, Mr. Chaisson attached the wench cable to the front of the dumpster so it could be loaded and then strapped the rear of the dumpster to the chassis. This entailed running a strap, which was fixed to the driver's side frame of the chassis, through openings located between the skids upon which the dumpster rested and the floor of the dumpster, and then connecting the strap to the opposite side of the chassis. Mr. Chaisson and another Pellerin & Sons' employee both indicated that they pulled the strap from one side of the chassis to the other by going underneath the chassis.

         On June 12, 2017, Pellerin & Sons was in the course of demolishing several buildings for Frank's International (Frank's) at 700 E. Verot School Road in Lafayette, Louisiana. Mr. Chaisson alleged that he suffered a work-related injury to his lower back when David drove the roll-off truck forward while he was under the truck strapping the dumpster to the chassis. He claimed that he quickly fell to his knees in order to prevent his head from being struck by the chassis. Mr. Chaisson at first refused to get back into the truck with David, but after he did and they reached Pellerin & Son's office, he informed David that he quit and walked off.

         On July 20, 2017, Mr. Chaisson filed a disputed claim for compensation against Pellerin & Sons, alleging that he suffered an injury to his neck and lower back as a result of his June 12, 2017 accident.[2] He claimed that Pellerin & Sons had not paid wage benefits or authorized medical treatment, and he requested that he be allowed to see the physician of his choice. Mr. Chaisson further alleged that Pellerin & Sons was liable for penalties and attorney fees based on its failure to timely pay or contest his right to workers' compensation benefits. Pellerin & Sons initially denied Mr. Chaisson's claims, but then filed a supplemental and amending answer, in which it alleged that Mr. Chaisson was intoxicated at the time of the alleged accident. Thus, it claimed that Mr. Chaisson forfeited his entitlement to workers' compensation benefits pursuant to La.R.S. 23:1081.

         Following a March 1, 2018 hearing on the merits, the matter was taken under advisement by the workers' compensation judge (WCJ). Thereafter, on April 13, 2018, the WCJ issued an oral ruling, granting judgment in favor of Pellerin & Sons and dismissing Mr. Chaisson's claim against it with prejudice. A written judgment was rendered on June 5, 2018. It is from this judgment that Mr. Chaisson appeals.

         On appeal, Mr. Chaisson raises three assignments of error:

1. The WCJ clearly erred by concluding that any evidence discredited or cast serious doubt on plaintiffs incident-related testimony.
2. The WCJ clearly erred by its failure to conclude that the circumstances following the incident corroborated plaintiffs testimony.
3. The WCJ clearly erred by basing its ruling on its own medical causation opinion and by misunderstanding the medical evidence, all of which the WCJ used to find plaintiff to be not credible.

         OPINION

         In Calumet GP, LLC v. Garrett, 50, 341, pp. 3-5 (La.App. 2 Cir. 1/20/16), 186 So.3d 712, 715-16, writ denied, 16-301 (La. 4/8/16), 191 So.3d 587, the second circuit set out the standard of appellate review applicable in workers' compensation cases and the burden of proof that a claimant must satisfy to prove a work-related accident:

In a workers' compensation case, the appropriate standard of review to be applied by the appellate court to the WCJ's finding of fact is the manifest error or clearly wrong standard. Dean v. Southmark Const, O3-[]lO5l (La. 7/6/04), 879 So.2d 112; Dunlap v. Madison Parish Sch. Bd, 46, 139 (La.App.2d Cir.4/13/11), 61 So.3d 833. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Dunlap; supra; Harris v. Casino Magic, 38, 137 (La.App.2d Cir. 1/28/04), 865 So.2d 301, writ denied, 04-0502 (La.4/8/04), 870 So.2d 275. Unless shown to be clearly wrong, the WCJ's factual findings of a work-related disability will not be disturbed where there is evidence which, upon the trier of fact's reasonable evaluation of credibility, furnishes a reasonable, factual basis for those findings. Id. When a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La. 1989); Wilson v. General Motors Corp., 45, 232 (La.App.2d Cir.5/26/10), 37 So.3d 602. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, supra; Morgan v. Glazers Wholesale Drug Co., 46, 692 (La.App.2d Cir.l 1/2/11), 79 So.3d 417. The trier of fact's determinations as to whether the worker's testimony is credible and whether the worker discharged the burden of proof are factual determinations, not to be disturbed upon review unless clearly wrong. Harris v. City of Bastrop, 49, 534 (La.App.2d Cir.1/14/15), 161 So.3d 948; Thomas v. GM Benefits & Serv. Ctr., 48, 718 (La.App.2d Cir.1/15/14), 132 So.3d 464.
An employee is entitled to worker's [sic] compensation benefits if he receives a personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031; McLin v. Industrial Specialty Contractors, Inc., 02-1539 (La.7/2/03), 851 So.2d 1135; Scott v. Super I Foods, 45, 636 (La.App.2d Cir.9/29/10), 48 So.3d 1133. An employment-related accident is 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. La. R.S. 23:1021 (1). The term "accident" includes a weakened condition which collapses due to a precipitous event. Rice v. AT & T, 614 So.2d 358 (La, App. 2d Cir.1993).
Although the workers' compensation law is liberally construed in favor of coverage, the claimant's burden of proving an accident is not relaxed; she must prove by a preponderance of the evidence that an accident occurred and the resulting disability is related to an on-the-job injury. McLin, supra; Hofler v. J.P. Morgan Chase Bank, N.A., 46, 047 (La.App.2d Cir. 1/26/11), 57 So.3d 1128, 1134. When the accident at question is unwitnessed, a worker's testimony alone may be sufficient to discharge claimant's burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts doubts upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Bruno v. HarbertInt'l, Inc., 593 So.2d 357, 360-61 (La.1992).

         In his three assignments of error, Mr. Chaisson basically argues that the trial court was manifestly erroneous in finding him not credible as a witness and by failing to find that his testimony, alone, was sufficient to prove that the accident occurred. However, we find no merit in these arguments.

         In describing the incident, Mr. Chaisson testified that he was under the truck, strapping the dumpster to the chassis, when David drove forward approximately fifty feet. He stated that while he was under the truck, he heard David put the truck into gear and rev the engine, so he let go of the strap, ducked his head, and then fell onto his knees as the truck started forward. He stated that he stopped his fall by putting his hands down onto the ground, which prevented his face from hitting the ground.

         At the time of this incident, Mr. Chaisson testified that Andrus Pellerin, David's father and a co-owner of Pellerin & Sons, was standing on the passenger side of the truck, next to him. At first he stated that Andrus would not have seen him fall because he was underneath the truck. However, he later stated that Andrus would have seen the incident. He claimed that he said nothing about the incident to Andrus once he stood up. Instead, Mr. Chaisson testified that he went to the driver's side of the truck and confronted David, stating to him, "What the hell you doing? I almost got killed underneath the truck. You took off fifty, sixty feet." He stated that David stepped out onto the truck's step and started cussing him. He said that he eventually climbed into the truck, and while in the cab, David continued arguing with him and then punched him in the face. However, in a rule to show cause filed by his attorney, Mr. Chaisson claimed that David only struck him on the arm. He further denied that David said anything about him taking a drug test. Once they arrived back at Pellerin & Sons' office, he stated that he exited the truck, told David that he quit, and started walking towards the bus stop. He said that he quit because David punched him in the face and because of the incident while he was under the truck.

         Mr. Chaisson testified that after he had walked a little ways from the office, he received a call from Donald Pellerin, David's brother, who said that he would pick him up and take him to his truck. When asked about the incident, he said that he replied that David "almost got me killed underneath the truck." He said that Donald only replied, "Boy, boy, boy. That boy ...


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