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Burrow v. Delta Container Corp.11/29/2005
Panel composed of Judges James L. Cannella, Marion F. Edwards, and Susan M. Chehardy
REVERSED IN PART; AFFIRMED AS AMENDED
Both plaintiff, James A. Burrow, and defendant, Delta Container Corporation, have appealed a judgment of the Office of Workers' Compensation Court in favor of Burrow, awarding temporary and total disability benefits and assessing penalties and attorney's fees.
On September 13, 2001, Burrow was injured in the course and scope of his employment with Delta when his hand was caught in a Revi-Cart machine, a device for folding and gluing corrugated board. He was taken to Ochsner Hospital and later tested positive for marijuana. All employment-related benefits were denied except for payment of the emergency room visit. Burrow filed his compensation claim, and trial was held. Following trial, the court found that Burrow had been injured in the course and scope of his employment but that he did not successfully rebut the presumption of intoxication under LSA-R.S. 23:1081.
Burrow filed a Motion For New Trial, which motion was subsequently granted by the trial court for "good cause shown." Several months later, a ruling in favor of Burrow was issued, finding that he had overcome the presumption of intoxication, awarding him temporary total disability benefits and all medical expenses. A penalty for failure to pay compensation was assessed.
Prior to trial, the parties stipulated as to the authenticity and admissibility of a number of items, including medical and drug screen documents. They further stipulated that the urine sample collection and testing procedure was done in compliance with the director's rules/regulations and provisions of the Louisiana Workers' Compensation Law. The parties also stipulated as to the average weekly wage and to the authenticity of employment records from other employers including Stone Container Corporation.
Delta is in the business of making boxes. Philip Arceneaux, operations manager at Delta, testified that Mark May is in charge of safety and environmental and quality assurance at Delta. The Revi-Cart machine in which Burrow was injured is manufactured in Italy and had been in use for about one year. The machine had been set up by representatives of Revi-Cart. The only person who had been trained in its operation was Linda Chatelain but, at the time of the accident, Burrow was training to become a Revi-Cart operator. On the day of the accident, Arceneaux did not see Burrow until afterwards, when Burrow approached him and appeared ready to faint. Arceneaux brought Burrow to the hospital but did not notice whether he appeared to be intoxicated.
To operate the Revi-Cart, a box is set up and then run through, and adjustments are made constantly. The operator stands at the front, at a control panel, places boxes in the machine, and then walks along the side to make sure the boxes come out correctly. The Revi-Cart has a plexiglass wall and sliding doors along the walls which, if opened during operation, would normally cause the machine to shut off. However, after the machine was installed at Delta, Plant Supervisor Craig Hartzheim disengaged the doors from the shut-off mechanism. This was done because many of the boxes being made were running crooked or fishtailing and, upon consulting the manufacturer, the only person at Revi-Cart who spoke English recommended the disconnect on the operator's side. The only other solution was to leave the devices connected, close the door, get inside the machine as it was running, and then make the necessary adjustment.
Arceneaux was aware that the Revi-Cart instruction manual carries this statement: "It is severely forbidden to appr
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