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Gray v. H.B. Zachary Construction Co.9/25/2001
AFFIRMED.
Plaintiff, Adrian Gray, appeals from a judgment denying workers' compensation benefits. We affirm.
In 1999, Plaintiff was employed as an electrician for Defendant, H. B. Zachary Construction Company, working at the Union Carbide plant in Taft, Louisiana. He had worked in the plant for Defendant for 9½ years. Sometime in the fall, he alleges that he was assisting a new worker pulling cables in one of the substructures that had a low ceiling with pipes running along the top. As he raised himself from a squatting position, he struck his head on an overhead beam, "jamming" his neck. Plaintiff alleges that the accident happened during a "turnaround" or "shut down" and that he had been working 12-14 hours. He continued to work, he did not report the accident directly to the Safety Department, and no one completed a report of injury. Plaintiff claims that, when the accident happened, he informed his immediate supervisor and a co-worker that he was injured. He later attempted to obtain workers' compensation benefits, but his request was denied.
On December 21, 1999, Plaintiff filed a Disputed Claim for Compensation. On the form he stated that the accident happened on October 12, 1999. After a hearing was held on November 2, 2000, the workers' compensation judge denied the claim on the basis that Plaintiff failed to prove a work related injury.
On appeal, Plaintiff asserts that the trial judge erred in failing to find that he had sustained a work related injury and in failing to award penalties and attorneys fees for Defendant's arbitrary refusal to provide workers' compensation benefits.
At trial, Plaintiff testified that the accident happened sometime in September of 1999. At various points in his testimony, he said that it happened on September 3, during the second week of September, or the latter part of September. He denied that it happened on October 12, 1999, as he alleged on the claim form, or in the week before Halloween as he alleged in his deposition. He said that the October date on the claim form was when he saw a doctor. Plaintiff was positive, however, that the accident happened during a "shut down" or "turnaround" when he was in the Etox area of the plant, although he noted that the "shut down" also involved the acrylics' department.
Plaintiff explained that a "shut down" occurs when the work in an area is stopped so that various equipment can be upgraded. Plaintiff testified that work during the "shut down" is performed 24 hours a day. This "shut down" lasted approximately 7 days. Because the company loses money during a "shut down", the workers are under pressure to complete the upgrade quickly. Plaintiff said that it is a very hectic time, during which everyone works longer hours, and that he worked 12-14 hours a day during that period, as opposed to his regular 10 hours. Plaintiff contends that he reported the accident to Bobby Breaux (Breaux), his immediate supervisor, right after the accident, but continued working because he was needed. He claims that he waited until the first Friday on which he was off before seeking medical attention.
Plaintiff first visited Dr. Raja Talluri, an internal medicine specialist, on September 10, 1999, for pain in his upper back, left shoulder, and radiating down his left arm. He did not tell the doctor that the injury was work related. Because of his continuing complaints, the doctor placed Plaintiff on no-work status starting October 1, 1999. He was then referred to Dr. Richard Morvant, who treated him briefly, before referring him to Dr. Thomas Donner, a neurosurgeon. Dr. Donner subsequently operated on Plaintiff for a cervical disc herniation.
Breaux
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