Sherry Hirstius VS Tropicare Service, L.L.C. and Zenith Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 CA 1080 SHERRY HIRSTIUS VERSUS TROPICARE SERVICE LLC AND ZENITH INSURANCE COMPANY Judgment Rendered December 21 2011 On Appeal from the Office of Workers Compensation District 6 State of Louisiana Docket No 10 04957 Honorable Gwendolyn F Thompson Workers Compensation Judge Presiding e41J Dannie P Garrett III Baton Rouge La Counsel for PlaintiffAppellant Sherry Hirstius John Chris Turnage Shreveport La Counsel for DefendantsAppellees Tropicare Service LLC and Zenith Insurance Co BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J HIGGINBOTHAM J In this workers compensation case Sherry Hirstius appeals the decision of the workers compensation judge WCJ denying her claim for workers compensation benefits On April 9 2010 Sherry Hirstius was employed in a supervisory capacity by Tropicare Service LLC Tropicare when she allegedly felt her back pop while moving a pallet of plants was diagnosed with an She sought medical treatment on April 14 2010 and injury to her lower back She sought workers compensation benefits from her employer but her claim was denied Thereafter on June 3 2010 Ms Hirstius filed a disputed claim for compensation with the Office of Workers Compensation seeking to collect workers compensation benefits penalties and attorney sfees from Tropicare Following a hearing before the WCJ judgment was signed on March 28 2011 denying her claim The Louisiana Workers Compensation Act provides coverage to an employee for personal injury caused by an accident arising out of and in the course of his employment See La R 23 An employee must prove the chain S 1 A 031 of causation required by the workers compensation statutory scheme as adopted by the legislature and must establish that the accident was employmentrelated that the accident caused the injury and that the injury caused the disability Clausen v D Construction 2001 0077 La App 1st Cir 2 807 G A 02 15 2d So 1199 1201 writ denied 2002 0824 La 5816 So 851 02 24 2d Initially a workers compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury Id A worker testimony is sufficient to discharge the burden s of proving an accident provided that two elements are first satisfied 1 no other evidence discredits or casts serious doubt upon the worker version of the incident s 2 and 2 the worker testimony is corroborated by the circumstances surrounding s the alleged incident Carter v Lakeview Regional Medical Center 20041794 La App 1st Cir 9 923 So 686 688 05 23 2d Penn v Options Inc 2002 1987 La App 1st Cir 6 858 So 557 560 03 27 2d Corroboration of the stestimony may be provided by the testimony of fellow workers spouses worker or friends or by medical evidence Ardoin v Firestone Polymers L 2010 C 0245 La 1 56 So 21 219 11 19 3d 5 see also Roberts v Thibodaux Healthcare Center 2005 0774 La App 1 st Cir 3934 So 84 92 06 24 2d As in other civil cases in reviewing the WCFs factual determinations including whether the employee has discharged his burden of proof this court is bound by the manifest error standard of review Lafleur v Alec Electric 2004 0003 La App 1st Cir 12 898 So 474 478 writs denied 2005 0276 04 30 2d 2005 0277 La 4 898 So 1287 1288 Moran v G 05 8 2d G Construction 2003 2447 La App 1 st Cir 10 897 So 75 79 writ denied 20042901 04 29 2d La 2 894 So 1148 Under that standard of review an appellate court 05 25 2d may only reverse a WCJ factual determinations if it finds from the record that a s reasonable factual basis for the finding does not exist and that examination of the entire record reveals that the finding is clearly wrong Stobart v State Through Dept of Transportation and Development 617 So 880 882 La 1993 2d Thus where two permissible views of the evidence exist the factlinder choice s between them cannot be manifestly erroneous or clearly wrong Id at 883 On the date of the alleged accident Ms Hirstius was working with two other individuals neither of whom witnessed the accident or was aware that she was injured The WCJ in written reasons for judgment found the testimony that no one working with the claimant on that date was aware of any accident was important to Ms Hirstius credibility s The judgment noted that Ms Hirstius s 3 burden of proof was preponderance of the evidence and stated c Sherry laimant Hirstius did not carry her burden of proof that she was involved in an accident Emphasis in original Ms Hirstius alleged that the WCJ did not appropriately apply the law as articulated by the Louisiana Supreme Court in Bruno v Harbert Intern Inc 593 So 357 361 La 1992 In the March 28 2011 judgment the WCJ cited 2d Bruno and stated that the worker testimony must be corroborated by the s testimony of fellow workers his spouse and other close family members friends or the introduction of medical evidence Emphasis added The standard expressed in Bruno uses the disjunctive or instead of the conjunctive and therefore Ms Hirstius contends that the WCJ incorrectly required corroborating testimony from each of the enumerated individuals While this court recognizes that the judgment partially misstates the Bruno case it is clear from the WCJ s written reasons and judgment that it did not require testimony from each of the individuals listed and that it used the correct burden of proof After a thorough review of the evidence presented and considering the credibility determinations made by the WCJ we conclude that the record reasonably supports the WCJ finding that Ms Hirstius failed to prove by a s preponderance of the evidence that she was involved in an accident on April 9 2010 which would have entitled her to benefits under the Workers Compensation Act Further our review of the record establishes that the factual determinations of the WCJ were not clearly wrong For the foregoing reasons the decision of the WCJ is affirmed Costs of this appeal are assessed to Sherry Hirstius AFFIRMED M
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