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Kennedy v. Brookshire Grocery Co.12/7/2001
rty, absent circumstances casting suspicion on the reliability of his testimony. A worker's testimony alone may be sufficient to discharge the burden of proof provided that two essential 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 incident. Jackson v. Creger Automotive Co., Inc., 29,249 (La. App. 2d Cir. 04/02/97, 691 So.2d 824, writ denied, 97-1436 (La. 09/26/97), 701 So.2d 984.
Analysis
Kennedy claimed to have suffered a work related injury on July 27, 1995. Before this alleged incident Kennedy had a long history of on the job injuries while at Brookshire. On July 8, 1985, she injured her tailbone after slipping on a piece of fat while walking to the cooler in the meat department. She strained her back while lifting a 40 pound box of leg quarters on September 23, 1988. A few years later, on June 4, 1990, Kennedy injured her back opening the freezer in the meat department. Kennedy testified that she reported each one of these incidents to her employer. However, she did not report the July 27, 1995, incident until March 11, 1999, after she was terminated from Brookshire.
Kennedy was treated at Union General Hospital on July 27, 1995, for what the hospital records show as "shoulder pain occurring on and off for approximately one week," but she did not tell the doctors that she had been injured at work. Additionally, despite Kennedy's claims that she was injured on July 25, 1995, Brookshire's employee time sheets reveal that she was not at work on that date.
In September of 1995 Kennedy reported to her supervisor, Ron Linder, that she was suffering pains from a 1990 injury that occurred before he began working with the company. Kennedy repeated this complaint to Allen Turner, the store manager, who also was not at Brookshire in 1990. Because neither Allen Turner or Ron Linder worked for Brookshire in 1990, they referred Kennedy to Randy Modesitt, the workers' compensation adjuster. Modesitt then contacted CNA, Brookshire's insurer in 1990, to determine whether Kennedy could receive benefits for a 1990 injury for which she had previously received benefits. CNA informed Modesitt that their last payment for the 1990 injury was in January 1991 and that the claim had prescribed and no benefits were available.
Despite these circumstances, on September 21, 1995, Brookshire had Kennedy fill out an accident report to be sure that Kennedy was complaining of an injury from 1990 and not a new injury that was an aggravation of a pre-existing condition. In the report, Kennedy specifically mentions that she was injured in 1990. There was no mention of a July 27, 1995, accident. In fact, Kennedy did not mention a 1995 injury to Dr. Sidney Bailey, who treated her in 1995. She did not mention a 1995 injury to Dr. Doug Brown, who began treating her in 1996 and treated her until February 11, 1999.
Obviously, Kennedy's claim for workers' compensation related to any 1990 injury had prescribed. Nonetheless, because Kennedy was a good employee who was experiencing financial difficulties, Brookshire offered to pay the deductibles and co-payments on her personal health insurance so that she would have no out of pocket expenses.
On September 22, 1995, Kennedy filed for STDB. She actually filed for STDB a month earlier on August 2, but then refiled after being informed that prescription had run on her 1990 claim. Kennedy received STDB until October 22, 1995.
Kennedy, who is from the Philippines, asserts that Brookshire took advantage of her poor understanding of English to confuse her
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