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Millon v. Clarion Hotel9/16/1998
MILLON v. CLARION HOTEL, 98-0002 (La. App. 4 Cir. 9/16/98)
Rehearing Denied October 30, 1998.
APPEAL FROM OFFICE OF WORKERS' COMPENSATION.
Defendant, PBHG-New Orleans, Inc., d/b/a Clarion Hotel, appeals a judgment from the Office of Workers' Compensation in favor of claimant, Valerie Millon. Claimant also appealed the judgment. In this judgment, the workers' compensation Judge held that claimant was entitled to temporary total disability benefits from October 27, 1994 through October 5, 1995, plus medical expenses, travel expenses and penalties.
Prior to trial, the parties stipulated that plaintiff was involved in an automobile accident on April 1, 1991 and that she had a pre-existing condition when she was hired by the Clarion on May 2, 1994. In the instant case, claimant alleges that on August 18, 1994, she was bending over to make a room key at her job at the Clarion when she aggravated her pre-existing back injury sustained in the 1991 automobile accident.
On appeal, defendant argues, inter alia, that the plaintiff failed to prove by a preponderance of the evidence that she sustained a job-related injury. Because we find that this argument has merit, we pretermit Discussion of the other arguments.
The Louisiana Worker's Compensation Act provides that an employee is entitled to benefits if he or she receives a personal injury by accident arising out of and in the course and scope of employment. La. R.S. 23:1031. La. R.S. 23:1021(1) defines "accident" as "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." In Dyson v. State Employees Group Benefits Program, 610 So.2d 953 (La. App. 1 Cir. 1992), the First Circuit interpreted this definition as requiring that an injured employee be able to identify the event marking the time when one can identify an injury, but not excluding from coverage employees who are "worn down by their work rather than immediately crippled by it." Id. at 956. In Dyson, the claimant was able to identify an event, i.e. a pivoting or turning movement, which immediately preceded her pain.
The claimant in a worker's compensation case has the burden of proving a work-related accident by a preponderance of the evidence. Woods v. Ryan Chevrolet, Inc., 30,206 (La. App. 2 Cir. 2/25/98), 709 So.2d 251, writ denied, 98-1169 (La. 6/5/98), ___ So.2d ___, citing Bruno v. Harbert International, Inc., 593 So.2d 357 (La. 1992). Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Id. at p. 4, 709 So.2d at 254.
In Bruno v. Harbert International Inc, 593 So.2d 357 (La. 1992), our Supreme Court elaborated on a worker's compensation claimant's burden of establishing a work-related accident as follows:
"A worker's testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker's testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence. (citations omitted), Id. at 361."
A plaintiff's case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Sisk v.
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