 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Bolton v. B E & K Construction6/21/2002
FITZSIMMONS, J. CONCURS.
The employee, Frank Bolton, Jr. (Bolton), claims he was injured on August 13, 1998, while in the course and scope of his employment with defendant, B E & K Construction (BE&K;. Bolton's claim for workers' compensation benefits was denied by BE&K;on the basis that no accident had occurred. The Office of Workers' Compensation (OWC) Judge found as a fact that Bolton failed to prove he suffered an accident while in the course and scope of his employment and denied the claim. Bolton took this devolutive appeal.
FACTS
Bolton was hired by BE&K;on August 10, 1998 as a laborer. That same day he was required to submit to a drug test as part of the hiring process. A urine sample was collected from Bolton and sent to Laboratory Specialists, Inc. (LSI) for analysis.
Before the results of the drug test were received, Bolton began work at BE&K; His duties included using a jackhammer to break up concrete, picking up broken pieces of concrete, loading them into a wheelbarrow, rolling the wheelbarrow up an incline and dumping the concrete in a pile for dump trucks to haul away. Bolton completed the four-day work week by working 10 hour shifts on August 10, 11, 12, and 13. During this period of time, Bolton never complained to anyone about being injured.
After the weekend, Bolton returned to work on Monday, August 17. That morning, Richard Levert (Levert), BE&K;s office manager at the site, received a phone call from LSI with the results of Bolton's drug test. The test indicated that Bolton had tested positive for cocaine. Consequently, Levert summoned Bolton to the office to terminate his employment. When he entered the office, Bolton informed Levert that he hurt his back the previous week.
Bolton asserts that he injured his back and neck in an accident that occurred on August 13, 1998, while he was performing his duties at BE&K; He admits that he did not report the accident at the time it occurred. He further concedes that the first time he ever informed anyone about his injury was when he was summoned to the office on August 17. Bolton testified that he had no idea why he was called into the office, but once there, he immediately reported his accident to Levert. Levert then informed Bolton that he was being terminated due to his positive drug test. Bolton denied using any drugs prior to taking the test.
ADMISSIBILITY OF EVIDENCE (Assignment of Error 4)
Bolton contends the OWC judge committed legal error by admitting into evidence the LSI drug test report and other medical evidence. 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. Gordon v. Sandersons Farms, 96-1587, p. 2 (La.App. 1 Cir. 5/9/97), 693 So.2d 1279, 1282. Thus, the evidentiary issue must be addressed first.
Workers' compensation 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." Id. In other words, the OWC judge has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 10 (La. 3/4/98), 708 So.2d 375, 381. The legislative requirement that a hearing officer's factual findings be based upon competent evidence is the safeguard that ensures that the factual findings are made on evidence that has some degree of reliability and trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility. Id. Therefore, wh
Page 1 2 3 4 5 6 7 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|