Opinion
No. 96-758.
February 5, 1997.
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, NO. 95-02521, STATE OF LOUISIANA.
Mark Terrance Hoychick, Eunice, for Bernadine Davis.
Katherine Marie Loos, Lafayette, for Jennings Manufacturing Co.
Before THIBODEAUX, SAUNDERS, DECUIR, PETERS and GREMILLION, JJ.
Bernadine Davis appeals the judgment of the Office of Workers' Compensation dismissing her claim for workers' compensation benefits claiming that the hearing officer's ruling that she failed to prove a work-related accident is manifestly erroneous and not supported by the evidence. We affirm.
Plaintiff claims to have sustained a back injury during the course and scope of her employment with Jennings Manufacturing Company on February 15, 1995, while reaching for a box of waistbands. After trial, the hearing officer found that plaintiff failed to prove by a preponderance of the evidence that the alleged injury occurred as a result of the work incident, stating in reasons for judgment: "the court believes it is just as possible, if not probable, that Ms. Davis experienced back and leg complaints as the result of a serious hemorrhoid and rectal fissure problem."
An appellate court may not set aside the factfinder's findings of fact in the absence of manifest error, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La. 1989). The "manifest error-clearly wrong" standard is applicable in workers' compensation cases. Alexander v. Pellerin Marble Granite, 93-1698 (La. 1/14/94), 630 So.2d 706. Where 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, Id. Applying this standard, we find no manifest error in the hearing officer's findings.
It is undisputed that plaintiff did not report the alleged work accident to her employer until almost one month after the incident. Jody Doucet, plaintiff's supervisor, and Bob Prejean, plant manager, both testified that on March 14, 1995, plaintiff and her husband met with them to request that the company help pay for plaintiff's hemorrhoid surgery. It was only after plaintiff and her husband were advised that the hemorrhoid surgery would not be covered by workers' compensation that Doucet and Prejean were advised of the alleged work-related injury.
Ms. Davis' credibility was called into question by business records contradicting her testimony regarding absenteeism prior to the alleged work injury. Additionally, Ms. Davis did not report the work-related injury to her treating physician until April 5, 1995, almost seven weeks after the alleged incident. Ms. Davis saw her family physician, Dr. Louis Shirley, for the first time after the alleged injury on March 2, 1995, for a hemorrhoid condition. She complained at that time of back and leg pain and hemorrhoids. Dr. Shirley testified that many people who have hemorrhoids experience leg and back pain, and he attributed the back and leg pain at that time to the hemorrhoid condition. Dr. Shirley's initial diagnosis was hemorrhoids and rectal fissure, which Dr. Shirley explained as a chronic tear in the rectum that produces chronic spasm to the rectum, more hemorrhoids and more back and leg pain. Dr. Shirley does not relate the hemorrhoid condition to plaintiff's employment. Ms. Davis did not relate the alleged work incident to Dr. Shirley until April 5, 1995. It was only after this visit that Dr. Shirley opined plaintiff had sustained a work related injury.
Plaintiff was subsequently examined by Dr. Gregory Gidman, orthopedic surgeon. Dr. Gidman ordered an MRI which reflected normal findings. Dr. Gidman was of the opinion that there was no organic reason for plaintiff's complaints. He indicated there was no evidence of spinal pathology and recommended that plaintiff could resume all normal activities. Dr. Gidman was of the opinion that plaintiff's whole examination was "totally theatrical."
Dr. Patrick Juneau, neurosurgeon, reviewed the film studies and MRI ordered by Dr. Gidman and indicated normal findings. Like Dr. Gidman, Dr. Juneau did not testify, but his medical report was admitted into evidence. Dr. Juneau concluded there was no evidence that Ms. Davis' nerve roots were at any more risk for injury than anyone in the general population. Although Dr. Juneau recommended that Ms. Davis be seen by a physical medicine specialist, his examination was objectively normal, and he placed no restrictions on her activities. As the hearing officer notes, Dr. Juneau's records do not reflect that he was supplied with any information regarding plaintiff's hemorrhoid condition.
Finally, Lena Handy, plaintiff's friend and co-worker and the only fact witness to testify on plaintiff's behalf, testified by deposition that she saw plaintiff remove boxes from the shelf, but did not notice any unusual reaction when plaintiff lifted the box.
Applying the rules of appellate review to the circumstances of this case, we cannot find manifest error in the hearing officer's ruling.
Costs of appeal are assessed to plaintiff-appellant.
AFFIRMED.
THIBODEAUX, J., dissents with written reasons.
The judgment of the hearing officer is not reasonably supported by the record and is manifestly erroneous. There is simply too much objective evidence of an accident and an injury.
It is true that Ms. Davis contemporaneously suffered from hemorrhoidal and rectal fissure conditions. However, it appears that the hearing officer chose between one injury, the back injury, or the other physical problems which hampered Ms. Davis. The hearing officer apparently did not consider that one could have work and non-work related problems occurring simultaneously. Ms. Davis unequivocally testified that she never realized the seriousness of her back injury until the hemorrhoids had abated. Thus, she did not report the injury to her employer. Additionally, she was afraid of losing her job if she had reported a work-related injury. It was only after she had definitively determined that her back problems were not related to the hemorrhoids but were due to the lifting incident at work that she informed her employer. The majority opinion penalizes an employee's candor.
Dr. Shirley, one of the treating physicians, gave Ms. Davis pain medication for her back, not her hemorrhoids, on March 2, 1995. The accident occurred on February 15, 1995. The pain medication was completely unrelated to hemorrhoids or fissures. On that same day, he detected muscle spasms which were consistent with a lifting, twisting type of injury. Furthermore, after April 15, 1995, approximately two months after the incident in question, Ms. Davis' medical records did not indicate any problems with hemorrhoids or a rectal fissure; yet, her back and leg pains persisted. When she saw Dr. Juneau, another treating physician, she still had objective signs of a low back pain syndrome and was not having any problems with hemorrhoids for over eight months.
The objective evidence and the objectively-corroborated testimony militate too greatly in favor of rejecting the conclusions and judgment of the hearing officer. Bruno v. Harbert, International, Inc., 593 So.2d 357 (La. 1992) concludes that, while an injured worker is not relieved from establishing a work-related accident by a preponderance of the evidence, the work-related accident requirement must be interpreted liberally and from the perspective of the worker. We have failed to follow these principles in this case.
For the foregoing reasons, I respectfully dissent.