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Cousin v. Slidell Memorial Hospital9/26/2003
f Cousin had told him that the pain had begun while he was stripping the floors and felt a pop in his neck, he would have filled out an occurrence report. Later, while Cousin was in the examining room, Rhodes went to see him again. Cousin again did not tell Rhodes about feeling a pop in his neck while stripping the floors.
The emergency room report of Dr. Archie Tatford states that Cousin presented to the emergency room complaining of left neck, shoulder, and arm pain while working on the floors that evening. Cousin denied any chest pain to Dr. Tatford, but Tatford noted that Cousin had reported chest pain to both the charge nurse and the triage nurse. Cousin described the pain as a previous pain he had seen Dr. Sharp for, which had been occurring off and on for three days but had worsened that evening.
Upon review of the evidence, the OWC judge found that Cousin failed to carry his burden of proving a work-related accident. Specifically, the OWC judge noted that Cousin had multiple opportunities the night of the alleged accident to describe the accident and how his neck "popped," but he did not, and therefore he failed to provide sufficient corroboration of the alleged accident. The OWC judge stated that it was ultimately a credibility call as to what happened immediately following the alleged accident, and Cousin failed to carry his burden by a preponderance of the evidence that he sustained an accident. Cousin's claim was dismissed with prejudice.
Cousin appealed this judgment, alleging that the trial court clearly erred in concluding that he did not sustain an on-the-job accident on August 15, 2001 because he failed to carry his burden of proof that an accident occurred.
DISCUSSION
Standard of Review
Cousin first argues that although a trial court's determination that a work-related accident did not occur is normally subject to the manifest error or clearly wrong standard of review, Bruno v. Harbert Int'l, Inc., 593 So.2d 357, 361 (La. 1992), under Bolton v. B E & K Construction, 01-0486 (La. App. 1 Cir. 6/21/02) 822 So.2d 29, this court should conduct a de novo review of the evidence, giving no deference to the OWC judge's findings, because the OWC judge relied on incompetent evidence in reaching his decision.
Specifically, Cousin alleges that the testimony of nurse Christell Olivo, triage nurse Barbara Boles, and supervisor Gilbert Rhodes was not competent and should not have been relied upon by the OWC judge. Cousin argues that because Olivo testified that she vaguely remembered the incident and could not recall Cousin telling her that he was injured while operating a stripping machine, Cousin's testimony that he informed her that he was injured while stripping the floors was uncontradicted. Because of this, Cousin claims that Olivo's testimony was incompetent evidence and should not have been considered by the trial court. Cousin also argues that Boles' testimony was incompetent and likewise should not have been considered because she had no independent recollection of Cousin's emergency room visit and could testify only after refreshing her recollection with her report. Cousin also asserted that Boles' testimony was incompetent because the report she relied upon to refresh her recollection contained one error and had another question left blank and it could possibly contain other errors. Finally, Cousin alleges that the testimony of Gilbert Rhodes is incompetent evidence because he failed to fill out a report immediately as he should have done even if he thought Cousin was only having a heart attack at work. According to Cousin, since Rhodes did not perform his job correctly, his testimony should be disregarded.
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