Timothy E. Penton, Jr. VS City of Hammond Police Department

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 2352 TIMOTHY E PENTON JR VERSUS CITY OF HAMMOND POLICE DEPARTMENT @ Judgment Rendered May 2 Appealed from the Office of Workers Compensation Parish ofTangipahoa 2008 District 6 State of Louisiana Docket Number 06 03788 The Honorable Elizabeth Warren W Chad Judge Presiding Counsel for Plaintiff Appellant Stelly New Orleans LA Timothy E Jeffrey C Napolitano Counsel for Defendant Appellee Metairie LA City of Hammond BEFORE Penton Jr WHIPPLE GUIDRY AND HUGHES JJ p C W Il J WHIPPLE J In this workers appeals from a compensation case carry his burden of proving we E Timothy Penton Jr judgment dismissing his claims against his former employer the City of Hammond Police Department based reasons claimant a work related accident with that he failed finding upon the For the injury to following affirm FACTS AND PROCEDURAL HISTORY On September ll 2005 Hammond Police Thad Gautier in officer Officer residential a m on chasing suspect a street saw while that date on Rodney Gemar who Penton traffic stop was by the City of full time employed Department holding the position of police officer fIrst class 1 00 approximately Penton foot Penton assisted Officer patrol The suspect had fled from attempting was the suspect on coming to arrest from a at the same time wooded as they a third the suspect after area Although approaching from different directions Officer Gautier reached the suspect At came towards a a Penton and upon a ditch and fell into it According across to Penton the ditch and fell on while his chin suspect with Officer Gautier running again was eventually reaching for the suspect He After the got up and attempted suspect was from several officers who had arrived re Although Penton stumbled to apprehend the handcuffed he broke off on the scene The suspect apprehended and transported to the police station Penton did not he later contended that he was apprehension of the suspect report any injuries injured as a result of He stated that he he associated with the accident and that he 2 to the other officer that night falling in the ditch during eventually began to feel pain eventually sought medical his that treatment he did However report the not employer until months later 5 On December injured during a to the Human Severan City of Hammond and mentioned the possibility workers accident compensation his 1 called Loretta Penton police chase a job accident and injury the on 2 2006 February on 2005 Resources Director for the having sustained alleged of that he had been explaining Severan advised Penton that he should Ms I Penton later claimed that after the alleged accident he experienced soreness and pain in his neck and shoulder on his right side and that the pain continued to worsen On September 29 200S Penton contacted his stated he primary physician care in Dr On October 13 200S he went in to see anti motion Notably there is complaints hand with mention in Dr Drwnmond no of right some s notes Penton s which scans revealed spine Chiasson neurosurgeon for further treatment However on the Attending Physician to submit s pain that started in tingling and numbness with injury occurring from a that he undergo an MRI scan activities surgeon placed him on leave and Dr Anthony S a required s orthopedic an Dr Drummond herniated disc at C6 7 consistent with Dr Drummond restricted Penton complaints of pain from work and referred him to Dr B J Ioppolo a arm of any work related accident At that visit Dr Drummond recommended of his shoulder and cervical s Dr Drummond at his office with presented right arm and the shoulder and radiated into his by telephone and office phoned in inflammatory medication and visit but Dr Drummond for notes from that visit indicate that he Drummond Maury pain He did not report for pain medication a muscle relaxer and an prescriptions follow up ifhe continued to experience pain advised him to was a 13 200S doctors visits regarding when asked if the doctor on visit s a form employees his initial visit with Dr Drummond was or were October on illness Penton did not check injury injury had occurred due to Likewise where the APR asked if the either blank APR Report s while on duty Penton did not circle Also where the APR asked if the illness had occurred while on yes or no circled no Penton Moreover on APR forms submitted for various subsequent visits duty although he checked that the forms when asked that the reason Dr Chiasson indicated for a herniated disc cervical traction by and that a visit with Dr Chiasson and also Penton In a was steroid February full the injections cervical February duty with no restrictions spine epidural injections Notably 200S to Dr by Drummond none ever treating Penton inflammatory use out Penton of work for documenting a 17 2006 Dr Chiasson indicated that as was of February 21 2006 scheduled to undergo opined that upon completion of the Penton testified that Dr Michael Burdine and Penton would be able to return to work November 1 would be 9 2006 Dr Chiasson noted that Penton to his later was anti undergoing Penton letter dated released to return to work letter dated epidural injections performed by was 7 2006 APR submitted February on the duty that Penton On he did not indicate letter dated November 29 200S that he physical therapy and injury an on the C6 7 level at four weeks approximately for the visit was injury occurred while of the above letters indicated that Penton including a letter dated injures resulted from a s work related accident Nonetheless the City of Hammond Daunis who evaluated Penton full work duty while injured lith chasing and fell forward was individual at work February was 28 2006 released to return to work Work Status Penton to an February 22 2006 by Dr Chiasson and claimed that he An APR dated Penton on restrictions no requested note dated March 1 as on 20 need possible surgery pounds Dr the day after he was by released Dr Mark to return to Penton told Dr Daunis that he had been 0S when he slipped on a flat surface unable to return to work documenting a visit with Dr of March 1 2006 but 2006 Dr Ioppolo inside work over 11 09 that Penton be evaluated issued only for permanent Ioppolo sedentary showed that work In a restrictions limiting only and restricting him from climbing ladders and lifting anything Ioppolo reported that Penton had a CS 6 disc herniation and that he may ifhis pain became intolerable 3 complete an accident report Despite having been advised responded work related claim existed Penton do that until and he did right now February 2 file not a that he didn to file wanted t think he report submitted February 2 2006 the shift supervisor NEVER STATED HE HURT HIMSELF DURING AN ARREST January 10 2006 from indicated that the HE On an APR visit with Dr Chiasson Penton for the first time a occurred injury 2 while on Records from the duty Spine fell while Pain Treatment Center show that he contended that he Diagnostic to report of a job accident with his employer AT NO TIME DID OFF PENTON TELL ME OF THIS INCIDENT wrote a 2006 On the accident dated report if a chasing perpetrator at work On June 13 2006 Penton filed a disputed claim for compensation seeking wage benefits and the authorization of medical treatment The answered the scope of his The petition denying that employment and that he matter 2007 a employer dismissing written ruling that judgment Penton s injury during the course judge rendered oral Penton s on September appeals challenging finding that reasons claim with full for 2007 At judgment in prejudice On July 13 signed by the OWC judge in conformity with her was injury and entitled to any further benefits claimant failed to carry his burden of related accident with judge was an proceeded to trial before the OWC judge on June 25 the conclusion of trial the OWC favor of the he sustained City of Hammond he failed two 11 proving that he suffered work 2005 evidentiary rulings prove that he sustained to a as well as the OWC injuries from a work related accident 2Penton 2006 during was off from work which time he was on paid with civil service laws which entitle a sick leave from October of 2005 his full salary by civil service 4 the City employee through October of of Hammond in accordance up to 52 weeks ofsick leave DISCUSSION Evidentiary Challenges Assignments of Error Nos 2 In these assignments Penton contends that the OWC judge made various interdicts its fact any of error Stroud 2006 0918 La court must applicable App 1st Cir 2 issued tecum at called into question the further demonstrated that appeal inasmuch while sick leave records sought s of Penton treatment tecum to the Miller s prior to trial June 21 Hammond filed Miller is not the by of this a show disparate four to 2007 days before trial of this expedited an party to are whether Penton was judge agreed this motion to substantially City of Hammond learned he matter was actively subpoena duces a matter and that actually injured in and treatment the matter City of a Captain Miller absolutely s personnel bearing no on wage and the issue of work related accident herein granted the City of Hammond s motion to T he issue job far as we re with is did he have The issues you 11 2005 dealing September is he being treated differently 5 as far an accident on the as talking as the Attending re The quash stating follows on a quash the subpoena noting that Captain confidential and have medical records OWC of City of Hammond seeking the records associated with Captain leave of absence On v testimony and would have Penton claims he issued sick leave on as a Breitenbach Captain Paul Miller of the City of Hammond Police Department employed as review Thus relevant and would have were Penton contends that Department novo that judge erred in quashing the subpoena veracity of the supervisor disparate on de error 959 So 2d 926 930 which He contends the records supervisor Police his request a evidentiary standard of review 9 07 Penton first argues that the OWC duces conduct be addressed first errors must may affect the court commits trial a this finding process alleged evidentiary finding If evidentiary rulings erroneous 3 about Im thinking that what you re Physician Report requirement trying to get at is maybe some other cause of action that I have to go forward with is nothing to do with What Im here today just to hear evidence and testimony on did he have an accident on the job with the Hammond Police Department Miller s medical stuff is it relevant s personnel personal think I file is and confidential it s burdensome going not to help me I just don and his t see where medical and decide whether Penton has proved his accident On review Hammond relevance find we treatment s the to matters at work related accident and discretion afforded find to while employees of its issue in this injury the trial as case i out sick leave bears on given Moreover discovery and evidentiary court in judge s matters Tarver App lSI Cir 2d 300 Companv 200l 832 Penton also trial the allowing La 307 La App 3rd Cir 12112 0l City of Hammond their introduction The OWC evidence weight to his v Justiss Oil v the morning of introduce certain documents to evidencing or reported by Penton on Penton objected claiming the documents had not been previously produced explaining 3Penton we 2d 659 662 judge overruled the objection and allowed should be of his 80l So Brvant challenges the ruling of the OWC judge prior work related accidents involving to 1991 a Inc ruling with respect See Testa Distributing Company So no the broad remaining evidentiary challenge 584 City of whether Penton sustained e claimed herein abuse of discretion in the OWC no the judge correctly held As the no error that the court given to them carefully consider what evidentiary 3 contends that the OWC judge erred in admitting employer The claims into evidence documentation forms and reports prepared by his superiors prior compensation these documents had been requested in discovery but were not produced by contending that the workers would the documents into carrier until the morning or oftrial of Hammond counters that the admission of these documents City was provided proper as process and was opportunity to testifY as to his knowledge of the reporting knowledge prior reports filed on his behalf The City further contends that Penton was allowed the opportunity to explain his thought processes concerning the prior reporting of claims as well as his reasons for delay in reporting the instant claim Penton his an of any The documents included completed by Sgt I a copy of an accident report dated January 18 200S C Schaerer where Penton broke a finger and suffered a laceration on his left knee when he fell while chasing a suspect 2 a copy 6 of an accident report dated June 9 2003 A review of the record shows that Penton to was provided ample opportunity fully explain the details surrounding the prior accident reports and claims Moreover the documents participation in the claim were relevant show his to Thus filing process we understanding of and past allowing the admission of these prior accident forms Moreover the given Penton generation of these s opportunity forms we to find no abuse of discretion in on find the morning of trial explain the circumstances surrounding prejudice by no the admission of these documents Accordingly these assignments of error lack merit Challenges to the OWC s Factual Findings Assignment of Error No 1 assignment of error In his final in finding that he failed to prove Penton contends that the OWC judge erred that he suffered a work related accident and injuries resulting therefrom The employee who claims a right to collect workers compensation benefits has the burden of proving of the evidence The Citv of Hammond 2004 0410 La 5 6 05 McCov v 915 So 2d 849 850 the worker s review unless are The OWC judge s by a preponderance determinations clearly factual determinations which wrong or Penitentiary 2006 0553 La La work related accident App as to 1 sl Cir whether testimony is credible and whether the worker has discharged his her burden of proof 2258 a 25 1 08 manifestly 15 8 07 are not to Haves erroneous 970 So 2d 547 555 v be disturbed or on Louisiana State writ denied 2007 973 So 2d 758 signed by Penton where he suffered an injury to his left wrist and elbow and hip while attempting to arrest a suspect 3 a copy of an accident report dated September 30 2002 completed by a sergeant noting Penton suffered pain and swelling in his lower back after moving a 29 1999 5 heavy gun case completed by in the trunk of his vehicle Lt Donald Day 4 a copy of an accident report dated July after Penton closed his vehicle door on his hand and copy of an accident report dated June 5 thumb in a scuflIe with a suspect a 1997 7 signed by Penton where he broke his right A workers proof provided alone may be sufficient testimony elements two satisfied serious doubt upon the worker casts worker Bruno workers La suspicion the 939 reliability may be testimony or 2 and or the 1287 of the worker 1992 Magee v Abek Inc Barring uncontradicted s when as true Brown 2d 315 circumstances that v Kwok testimony the fact determining whether Wong However 319 cast 2001 2525 where as La here the probabilities of causation equally balanced the worker has evidence leaves the to carry his 836 So La 934 So 2d 800 807 writ denied 2006 2d So 36l provided by the testimony of by medical evidence discharged his burden 1st Cir 12 20 02 failed 593 So 2d 357 generally should accept the testimony the worker has App version of the incident s App l51 Cir 4 28 06 lO 27 06 on s friends spouses 2004 2554 La finder other evidence discredits no Harbert Intemational Inc v Corroboration of the worker l876 1 discharge this burden of testimony is corroborated by the circumstances following the alleged s incident co are to or her burden of proof Magee 934 So 2d at Abek Inc v 807 Moreover diminish the in many physicians history becomes testimony are 4 2 04 the cases Magee credibility s lack of veracity of his complaints App 151 Cir 1296 La noted claimant a v as a factual issues on physician 162 Peters important as the medical 934 So Harmsen 2003 previously the claimant to his opinions based in part The rule that 2d at 807 applies v serve to can As this court has credibility of the history given by Abek Inc v to 879 So 2d 157 for the trier of fact Lirette credibility on that questions of also to the evaluation of State Farm Insurance Company 563 So 2d 850 expert 853 La 1990 Penton testified in a at trial that he suffered ditch and hit his chin during a a foot chase 8 work related of a injury suspect on when he fell September ll 2005 On file claim a he contends that his failure appeal related alleging work delayed giving notice because he of Hammond Police suffered a fall and that the record made hesitant was of the none to upon testimony not found that Penton failed In Mr as to he employees making such claims or documentation we dispute that he disagree and and determinations find actually 4 the medical and carefully reviewing as or report his injury and the City amply supports the factual fmdings injuries reasoning defeat his claim After careful review resulting injuries by the OWC judge After injuries should Department frowned He further contends that timely report the accident to to lay testimony the OWC judge establish that he suffered a work related accident and follows Penton s case have substantial medical records we that in my opinion certainly don t do anything to corroborate his version of the incident The alleged accident we re dealing with here We have the handwritten note in Dr is September 11 2005 In that note September 29 2005 9 25 05 complaints of T spine pain and then it indicates that Dr Drummond called in some prescriptions which was corroborated by his testimony Drummond reports from s concerning that phone call Mr Penton had indicated that he called it in as opposed to going to Dr Drummond s In his direct exam office because he didn t want to take the time off from work But my review of the payroll records indicate that he wasn t working that day So I don t know why he couldn t have gone in to see Dr Drummond That was a little suspicious in my opinion The first office visit we have subsequent to this alleged September 11 2005 incident is of course the October 13 2005 office note from Dr Present Illness started Patient shoulder a History of in complaining of right arm pain that comes I radiates into his right numbness with motion treatment but That indicates under Drummond that assume arm and Got means at hand with shoulder some and tingling somewhat better without still has flared back There s no and patient mention whatsoever of a work related accident 4Contrary to Penton involved in the chase that during Penton s characterization of the night i e testimony although his fellow officers Officers Gautier and Gemar may have witnessed his fall were aware of any purported injuries sustained by the chase neither of the officers or providing a alleged to have resulted from this incident until statement in relation to his claim months later 9 they were contacted about The I guess Attending Physician Report from that date we re calling it the APR this is the main thing in my opinion that casts the most serious doubt upon this whole alleged incident There s clearly a been we ve spot through this over and over again with various different witnesses There s obviously on the APR a place for Mr Penton to fill out injury illness and then again did the injury occur while on duty He has the option of yes or no He didn t circle either But then did the illness occur while on duty he circled specifically no I think in his didn t the way he tried to explain it was he realize the seriousness of the injury at the time I guess the I have with that is in the doctor visits and all the APR problem after that date that he still s not all of them but the call it And he didn illness at work occur to s closest in time after of his own volition injury whatever you want He just kept checking injury do that t ones every time given this option circle yes it did to testimony or doubt upon that testimony is as of his or as of October 24 2005 APR Dr Drummond had next visit clearly indicated he had a hemiated disc The part that the physician Also the tills out thing that cast No 5 nature of illness So I think early as as 10 24 05 injury herniated disc neck pain or he realized the seriousness of his alleged injury Then get into the problem of Dr Chiasson you This is the s reports And Ive looked through these reports several different times and I can t see anywhere in any of these visits starting with November l5tof2005 there s no mention of a work injury or an accident of any type Then November lith there s no orthopedic surgeon mention of an accident I Dr Chiasson s reports about an injury can t injury And all the way through find anywhere that he s told him or February 17 2006 office note Dr Chiasson relates in the history and physical h e states he has had improvement of symptoms He continued to complain of tension type headaches Then in his neck but he states he is ready to return to work On the find any mention of an accident or an i ury November 11 2005 December 12 2005 January lOth 2006 no mention of an accident Chiasson visits that I reviewed where I s Then Im reading Dr Burdine 4 This is his visit Present Illness He rates his 4 a fall Plaintiff s Exhibit Burdine January 10 2006 History of describes the pain as aching and throbbing 1 through 10 scale Timothy states his pain his pain started five months ago The pain on a is intermittent He states occurred after reports t to Dr Timothy pain a s can There s no mention that the fall occurred at work And then according to January the records that s the first time that 10 2006 I believe is the first time looking at during the testimony the injury while on duty at work that he we were 10 circles yes It looks like the date that Mr Penton put in was January lO 06 Dr B Chiasson is supposedly the doctor I can t see the physician s signature but And then again its dated 1 16 06 we got into the situation I think Assistant as far alluding to Chiasson s record s seem as the way Im reading them it seems that Mr Penton showed up at Dr Chiasson s office and told him that he was ready to go back to 17 work That s when Chiasson on 2 06 indicates he has improved symptoms and he s ready to return to work on 2 21 06 Chief Corkern was Yet the very next day on 2 2 2 06 Dr narrative Daunis when he actually states that he was chasing an individual at work and he fell forward So I can t really reconcile that in my mind why a patient would go in and tell a doctor that they re ready to go to that s having mentioning to this physician I fell I was on duty I was chasing a suspect it was on the job but then the day after he s supposed to be released to return to work Dr Daunis reports indicate a pretty substantial history of this alleged chasing an individual and falling during that chase work without ever The medical again in these medical reports Drummond s deposition confronted with a in I guess based And it s set on me know find any amount even little Im was a testimony in that I know it chasing little bit hard suspicious of As far to Dr Drummond I in the report suspect and he fell a s out Dr we re and filled history s not believe I can t corroboration also there saying in his just know he I find that you imagine that something of that nature saw him on October 13th of 2005 as know you Drummond would leave report when he of corroboration of medical records that he filled clearly in conflict with that he a t Mr Penton deposition which is told I don out Dr of that initial corroboration in the s no deposition testimony of the other officers that were on the scene with him the deposition of Officer Gautier or the deposition of Rodney Gemar And obviously Captain Miller and Assistant Chief Corkern couldn this alleged And corroborate any of this incident on September ll 2005 as t far as in her Ms Severan the s testimony any of the details of I was very where she said persuaded about you testimony on point something this was unusual that s why I drafted the notes I thought And Mr Stelly asked why it was unusual and she said you know because he had reported all his prior accidents know So you know Compensation novice Mr Penton is I think you know I the benefit of the doubt in I guess chose not to report it immediately back because there think given his very obviously can not t a Workers really give him reason why he believing any why he chose to kind of hold are some other issues going on at work I recent January 2005 injury it s a little bit hard 11 for to me believe that he didn the drill that he that needed to was t know the routine he didn supposed to report it promptly to t all the know people get involved Also my review of the payroll records the time sheets I don t see where he missed any work between 9111 05 and 1 0 2 05 So I m looking at the period ending September 18 2005 this obviously is the time period when everyone I guess would agree that they were working 12 hour shifts and they just divided it up into dayshift and nightshift II th So from Sunday September II through Saturday September 191h he s worked l2 hour shifts on Saturday September l71h he worked eight hours and then it looks like four hours overtime pay and then on September 19th the notation on one page somebody handwrote in September 19th 05 12 6 So it appears he may have worked 12 hours regular Let s September see a was lh that date and then six hours overtime on following pay period through Sunday October 2nd he s working six hour shifts eight hour shifts But I guess the I don t see any sick time requested or whole point is there s no And then that any indication that he had to take off for any injury through October 2 I Penton was was a little I guess being questioned anything illness or unconvinced I suppose when Mr about his earnings I found that he fairly evasive about this money that he supposedly earned detailing cars You know I just didn t feel like we ever could was really get a straight answer even of a ballpark figure until after the question had been asked several times I didn t find he was very forthcoming So about that based on corroboration of this particular the issue failure to have incident and lay or issues I credibility judgment in favor of the City of Hammond Police Department and against Mr Penton I ll dismiss the claim with full prejudice I will have everybody just pay their own costs Im not going to assess costs on this one We ll just call it a dismissal with prejudice And had with Mr Penton that The Hooper App 1 sl v s alleged s testimony medical any some Im going to render it credibility of a witness is best determined by the trial court judge Louisiana Department of Agriculture and Forestrv 2005 2481 Cir 3 23 07 960 So 2d l48 l53 standard of review demands regarding the credibility The great deference of witnesses because to manifest clearly the trier of fact only the fact finder the variations in demeanor and tone of voice that bear 12 error so heavily can on s be La wrong findings aware of the listener s understanding and belief in what is said Lirette v State 2d at 852 in While discharge judge some cases claimant s proving found that other evidence testimony was incident was the OWC insufficient After a s a alone may be sufficient testimony no we manifestly This cast serious version of the incident and found that the claimant v Harbert Intemational Inc judge found the claimant s to meet his burden of proving a conclude that s by the circumstances following the alleged 593 So the 2d uncorroborated at 361 testimony work related accident thorough review of the record and evidence in this cannot or support reasonable factual basis exists in the record for the OWC Thus to work related accident herein the OWC presented provided corroborated not See Bruno Accordingly herein a his burden of proof in doubt upon the claimant a Farm Insurance 563 So matter judge judgment dismissing the s we find conclusions petition was erroneous assignment of error lacks merit CONCLUSION For the above and of the OWC Timothy foregoing Costs of this reasons appeal are we affIrm the July 13 2007 judgment assessed E Penton Jr AFFIRMED 13 against the appellant claimant

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