Bartholomew v. Rhorer Mutual Industries12/13/2005
Panel composed of Judges James L. Cannella, Marion F. Edwards, and Susan M. Chehardy
REVERSED
The Defendants, Rhorer Mutual Industries (Rhorer) and its insurer, Louisiana Workers' Compensation Corporation (LWCC), appeal from the judgment of the Office of Workers' Compensation (OWC) rendered in favor of the Claimant, Allen Bartholomew. For the reasons which follow, we reverse.
On September 5, 2003, the Claimant filed a Disputed Claim for Compensation with the OWC. Therein he stated that he had started working for Rhorer on August 12, 2003 as an equipment operator. His average weekly wage was $600. Eight days later, on August 20, 2003, he claims that he sustained injuries to his ribs, back, knee, and ankle while in the course and scope of his employment, working near the tank farm, when he fell into a deep hole. He also contends that penalties and attorney fees are due because the Defendants failed to reasonably controvert the claim. Bartholomew listed Jamie Labranche (Labranche) as a witness.
On December 12, 2003, the Defendants answered the claim and denied all liability, contending that, upon investigation of the claim, no witnesses confirmed Bartholomew's account or even the occurrence of the accident. Moreover, contrary to the Claimant's assertions, statements by co-workers indicated that no accident took place.
Following a hearing conducted on October 25, 2004, judgment was rendered on December 6, 2004 in favor of Bartholomew, upon finding that: (1) Bartholomew was injured by accident during the course and scope of his employment on August 20, 2003; (2) Bartholomew is entitled to the payment of temporary total disability benefits from August 20, 2003 through November 30, 2003; (3) Bartholomew is entitled to the payment of supplemental earnings benefits from December 1, 2003 through April 18, 2003; (4) Bartholomew is entitled to the payment of all medical expenses, medication expenses and transportation expenses related to the injury sustained on August 20, 2003; (5) the Defendants were arbitrary and capricious in their refusal to pay worker's compensation benefits; (6) the Defendants failed to reasonably controvert the claim; (7) penalties are due in the amount of $2000 for failure to pay worker's compensation benefits; (8) attorney's fees are due in the amount of $3000; and (9) credit is due to the Defendants for any benefits already paid and for any earnings by Bartholomew. It is from this judgment that the Defendants appeal.
On appeal the Defendants first argue that the trial court erred in finding that Bartholomew sustained a work related injury on August 20, 2003. They argue that there is no evidence in the record to support the claim except the self serving testimony of the Claimant. His testimony is not corroborated by any other testimony and, to the contrary, it is contradicted by the testimony and statements of his co-workers, supervisors and his own deposition. Therefore, the Defendants argue that the trial court judgment, finding that a work related accident occurred on August 20, 2003, is manifestly erroneous and should be set aside. We agree.
It is well settled and acknowledged by the Defendants that an appellate court may not set aside the factual findings of a workers' compensation judge in the absence of manifest error or unless it is clearly wrong. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La. 3/4/98), 708 So.2d 375, 380; Barbarin v. TLC Home Health, 02-1054, p. 3 (La. App. 5th Cir. 4/29/03), 845 So.2d 1199, 1202; Campbell v. Gootee Const. Co., 99-913, p. 9 (La. App. 5th Cir. 1/12/00), 756 So.2d 449, 453. It is the claimant's burden, in a workers' compensation case, to prove a work-related
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