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Hatcherson v. Diebold11/2/2000
facts. La.Const. art. V, ยง 10(B). An appellate court may not set aside the factual findings of a worker's compensation judge in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dep't of Transp. and Dev., 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). The appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one, after reviewing the record in its entirety. Mart v. Hill, 505 So.2d 1120 (La.1987); Stobart, 617 So.2d 880; Rosell, 549 So.2d 840. Even where the appellate court believes its inferences are more reasonable than the factfinder's, reasonable determinations of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).
Work Stress Under La.R.S. 23:1021(7)(e)
Diebold contends that the trial court erred in concluding a pre-existing lower back injury was a physical work stress under the following statute. Louisiana Revised Statutes 23:1021( 7)(e) provides in pertinent part that:
heart related or perivascular injury , illness or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this statute unless it is illustrated by clear and convincing evidence that one, the physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and two, the physical work stress or exertion and not some other source of stress or pre-existing condition was the predominant and major cause of the heart-related or perivascular injury, illness or death.
The trial court found that Mr. Hatcherson's work stress was extraordinary and/or unusual in comparison to the physical work stress experienced by the average employee in his occupation because Mr. Hatcherson had sustained a previous work-related lower back injury . No other employee in Mr. Hatcherson's occupation was laboring under the debilitating effects of a herniated lumbar disk. Also, his physical condition in and of itself was extraordinary and unusual in comparison to other employees in the same occupation. No other employee suffered from the same extreme weight condition as Mr. Hatcherson. Additionally, it is well established and the courts have firmly followed the principle that the employer must take the worker as he finds him. Behan v. John B. Honor Co., 143 La. 348; 78 So. 589 (1918). An abnormally susceptible employee is entitled to no less protection under the workers' compensation law than a healthier employee. Baker v. Conagra Broiler Co., 93-1230 (La.App. 3 Cir. 5/4/94); 640 So.2d 494, writ denied, 94-1435 (La. 9/23/94); 642 So.2d 1289. It is not important that the disease or weakened condition might alone have eventually caused death. Id.
The herniated lumbar disk that Mr. Hatcherson suffered from may not have directly caused his pulmonary thromboembolism but it most certainly accelerated and aggravated his condition to the extent that his work stress was greatly increased over that experienced by other employees similarly situated. At the time of his death, Mr. Hatcherson was in severe and debilitating pain, uncomfortable and traveling a far distance from his home in order to attend a work-associated seminar. It was an injury he suffered at work which caused him to be in the physical condition he was in at the time of his death. Accordingly, we affirm the WCJ in finding that Mrs. Hatcherson discharged her legal obligation under La.R.S. 23:1021(7)(e). Mr. Hatcherson established that his physical condition and the debilitating and severe pain he suffered as a result of the inope
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