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Durham v. Plum Creek Manufacturing5/10/2000
er 7, 1998.
The workers' compensation judge (WCJ) filed a judgment on March 25, 1999, awarding Mr. Durham temporary total disability (TTD) benefits in the amount of $350.00 per week from May 1, 1998 to November 1, 1998, and supplemental earnings benefits (SEBs) at the full compensation rate from November 2, 1998 through the date of judgment and during the disability, subject to modification in the event of the term of the disability or statutory limitations. Plum Creek was given credit for all sums paid to the plaintiff as accident and sickness benefits, $3,417.94. The plaintiff's claim for penalties and attorney fees against Plum Creek was denied. Plum Creek appealed the judgment, asserting that the plaintiff is not entitled to workers' compensation benefits. The plaintiff answered the appeal, claiming that the WCJ erred in failing to award penalties and attorney fees.
ACCIDENT
Plum Creek argues that the WCJ erred in finding that the plaintiff sustained a work-related accident and resulting injury entitling him to workers' compensation benefits. According to Plum Creek, the plaintiff had a pre-existing back condition which deteriorated over time. Plum Creek notes that the plaintiff had a back problem in 1993 with identical symptoms to his present complaint, and was at that time diagnosed with the herniated disc for which he eventually had surgery in 1998. Plum Creek claims that the plaintiff's complaint of an on-the-job injury on April 23, 1998 was inconsistent with his action in working a large amount of overtime in the week following the date upon which he claimed he was injured. Plum Creek contended that the plaintiff knew that his portion of the mill was going to be shut down and that he would be laid off. Therefore, he decided to complain that he was injured. Plum Creek also argues that the plaintiff did not timely inform his supervisors, Eddie Wright and Jimmy Atwell, of a work-related accident. Based upon our review of the record, we find that the plaintiff carried his burden of proving a work-related accident and resulting injury.
Workers' compensation benefits are available for claimants who suffer personal injury by accident arising out of and in the course of employment. La. R.S. 23:1031(A). An employment-related accident is an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. La. R.S. 23:1021(1).
The claimant's burden of proof in establishing a causal relationship between a job -related accident and the disability is by a preponderance of the evidence. Quinones v. U.S. Fidelity and Guaranty Company, 93-1648 (La. App. 2d Cir. 1/14/94), 630 So. 2d 1303; Poland v. Kroger, #404, 32,576 (La. App. 2d Cir. 12/8/99), ___ So. 2d ___. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Taylor v. Columbian Chemicals, 32,411 (La. App. 2d Cir. 10/27/99), 744 So. 2d 704; Harris v. Coushatta Industrial Sand, Inc., 31,977 (La. App. 2d Cir. 6/16/99), 741 So. 2d 143.
For the employee to recover, he must show that his employment somehow caused or contributed to the disability, but he need not establish the exact cause. Taylor v. Columbian Chemicals, supra. The causal relationship, however, can be established when the employee proves that before the accident he was in good health, but commencing with the accident the symptoms of the disabling condition appeared, and there is sufficient medical evidence to show a reasonable pos
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