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Cousin v. Slidell Memorial Hospital9/26/2003
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If the OWC judge committed evidentiary error that interdicted his factual decision, this court would conduct a de novo review rather than a manifest error review. Bolton v. B E & K Construction, 01-0486 p. 3-4 (La. App. 1 Cir. 6/21/02), 822 So.2d 29, 32. Thus, the evidentiary issue must be addressed first.
OWC judges are not strictly bound by the technical rules of evidence. La. R.S. 23:1317(A). The applicable statute only requires that all findings of fact be based upon "competent evidence." Bolton, 01-0486 at p. 3, 822 So.2d at 32. The basic concept of competency is that a witness may not testify to a fact unless a foundation is laid from which the trier of fact could conclude that the witness has personal knowledge of that fact. La. Code Evid. art. 602. If a witness lacks memory of events he or she witnessed, the facts may be recaptured by "jogging" the witness' memory, either prior to or while the witness is testifying. La. Code Evid. art. 612.
The problems Cousin refers to with the testimony of Olivo, Boles, and Rhodes have nothing to do with their competency to testify; rather, these are credibility issues. Since the testimony of these witnesses was indeed competent evidence, we will not conduct a de novo review.
The applicable standard of review in this case is a two-part test: (1) the appellate court must find that from the record that there is a reasonable factual basis for the trier of fact's findings, and (2) the appellate court must further determine that the record establishes that the finding is not manifestly erroneous (clearly wrong). Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the trial court's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990). Consequently, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La. 1993); Sistler, 558 So.2d at 1112.
Proof of an Accident
Cousin argues that the OWC judge erred in finding that he did not meet his burden of proof that an accident occurred. An employee who sustains a personal injury by accident arising out of and in the course and scope of his employment is entitled to collect workers' compensation benefits from his employer. La. R.S. 23:1031(A). The workers' compensation claimant has the burden of proof to establish that a work-related accident occurred by a preponderance of the evidence. Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La. 1992). In determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant's testimony is afforded great weight. Id. In Bruno, the Louisiana Supreme Court stated that a worker's testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident, and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Id. Therefore, if the worker testifies that he suffered an accident, a court must then look to see if the Bruno elements are satisfied. Coats v. American Tel. & Tel. Co., 95-2670 p. 5 (La. 10/25/96), 681 So.2d 1243, 1245.
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