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McCray v. Delta Industries9/21/2001
In this workers' compensation case, an employee appeals the dismissal of his claim against his employer for additional benefits. For the following reasons, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
Clifford McCray was employed by defendant Delta Industries, Inc. (Delta) as a cement truck driver. On July 17, 1998, Mr. McCray was involved in an accident when he lost control of the cement truck he was driving and veered off the road. He had been employed since 1995. When the truck crashed, the drum came to rest on the cab, trapping Mr. McCray inside the wreckage for approximately two and a half hours. The magnitude of the damage is reflected in exhibit photos. As a result of the accident, Mr. McCray sustained a number of injuries, including a closed head injury with loss of consciousness, facial fractures, a right orbital "blow out" fracture, and a knee injury. Plaintiff also claims to have sustained a back and/or neck injury in the accident.
Mr. McCray received workers' compensation benefits through December 2, 1998, amounting to $4,818.68, and medical benefits were paid in the amount of $31,263.00.
On July 16, 1999, plaintiff filed a claim with the Office of Workers' Compensation (OWC) against his employer, Delta, and its insurer, Travelers Property Casualty Corporation (Travelers), for continued treatment, diagnostic testing, and temporary total disability. Following a hearing before the OWC, judgment was rendered in defendants' favor, dismissing plaintiff's claims. Plaintiff has appealed this judgment and alleges the OWC erred: in crediting the testimony of Dr. Trahant over Dr. Olsen; in concluding plaintiff did not sustain a compensable back and/or neck injury; in failing to order MRI, EMG, and nerve conduction studies; in failing to find defendants were arbitrary and capricious for not providing MRI, EMG, and nerve conduction studies; in denying continuing benefits for temporary total disability; and for ordering payment of only the first $750.00 of non-approved treatment by Dr. Olson.
ANALYSIS
Plaintiff alleges that he is entitled to continued treatment, diagnostic testing, and temporary total disability benefits because he has not yet reached maximum medical improvement. He bases this contention on his continued suffering from a back and/or neck injury and the fact that the OWC judge relied upon only plaintiff's injury and treatment of his knee in rendering a decision.
An employee seeking temporary total disability benefits must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of the nature or character of the work, including but not limited to employment while working in pain. La. R.S. 23:1221(1)(c).
The "clear and convincing" standard is a heavier burden of proof than the usual civil case standard of "preponderance of the evidence" but is less burdensome than the "beyond a reasonable doubt" standard of a criminal prosecution. Chatelain v. State, Department of Transportation and Development, 586 So.2d 1373, 1378 (La. 1991). Therefore, to prove a matter by "clear and convincing" evidence means to demonstrate that the existence of a disputed fact is highly probable, in other words, much more probable than not. Fritz v. Home Furniture-Lafayette, 95-1705, p. 3 (La. App. 3rd Cir. 7/24/96), 677 So.2d 1132, 1134. Also, to carry the burden of proving disability by clear and convincing evidence, the claimant must introduce objective medical evidence of the disabling injury. Id.
Disability can be proven by medical and lay testimony. The trial court must weigh all the
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