 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Thornton v. Louisiana Plastic Industries12/15/2004
rom the fusion procedures.
The matter was heard again in January 2004 and, after reviewing Dr. Holladay's report of the November 19th examination and hearing testimony from Mr. Thornton, the WCJ granted the request for surgery. This appeal ensued.
DISCUSSION
Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of review. Figueroa v. Hardtner Medical Ctr., 35,678 (La. App. 2d Cir. 1/25/02), 805 So. 2d 1267. Under this standard, a court of appeal may not set aside a trial court's or jury's finding of fact unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So. 2d 840 (La. 1989), citing Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Canter v. Koehring, 283 So. 2d 716 (La. 1973). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but, if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Arceneaux, supra, citing Watson v. State Farm Fire & Casualty Ins. Co., 469 So. 2d 967 (La. 1985).
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what can be said. Canter, supra; Virgil v. American Guarantee & Liability Ins. Co., 507 So. 2d 825 (La. 1987); Boulos v. Morrison, 503 So. 2d 1 (La. 1987). When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility furnishes a reasonable factual basis for the trial court's finding, on review, the appellate court should not disturb this factual finding in the absence of manifest error. Edwards v. Sawyer Industrial Plastics, 99-2676 (La. 6/30/00), 765 So. 2d 328. The issue to be resolved by a reviewing court, therefore, is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Stobart v. State, Through DOTD, 617 So. 2d 880 (La. 1993).
In the case sub judice, LPI argues that the hearing officer incorrectly weighed the opinions of the three physicians who examined Mr. Thornton. First, it notes that the treating physician, Dr. Bailey, did not clearly recommend the surgery for Mr. Thornton, but, rather, ceded to Mr. Thornton's strong desire to have the surgery. Second, Dr. Brown, who provided a second opinion to Dr. Bailey's at the employer's request, recommended against surgery. Finally, LPI emphasizes that Dr. Holladay, the orthopaedic surgeon appointed by the hearing officer to conduct an independent examination of Mr. Thornton, consistently recommended against surgery. LPI argues that the WCJ was clearly wrong in accepting only Dr. Bailey's tenuous recommendation for surgery in light of the other two medical opinions to the contrary.
Mr. Thornton, on the other hand, argues that the WCJ utilized the proper standard in evaluating the evidence. He asserts that the WCJ looked not only at
Page 1 2 3 4 5 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|