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Poland v. Kroger #40412/8/1999
dition and caused increased intensity or frequency of the symptoms requiring surgical treatment. He was not concerned that claimant did not reveal her history of back problems, stating that the information was irrelevant, further noting that it could have been a failure to investigate on his part instead of a failure on claimant's part to disclose.
Dr. Grozinger reviewed both the 1995 and the 1997 MRI's of claimant's lumbar spine and found no significant differences, noting that both showed a small bulge at L4-5. Further, in a September 1996 deposition concerning her tort action arising out of the 1995 automobile accident, claimant stated that she experienced continuing low back pain and had fallen several times because of the pain.
After hearing the testimony of claimant and reviewing the medical evidence and all other relevant evidence, the WCJ found that at the time of the Kroger accident, claimant had not recovered from her 1995 automobile accident and that the Kroger accident neither aggravated nor combined with claimant's pre-existing condition to cause her current disability. The WCJ specifically noted that claimant's testimony was not credible regarding the details of the Kroger accident or the severity of the injuries she sustained.
Discussion
On appeal, claimant urges error in the WCJ's finding that her disabling condition was not causally connected to her work-related accident. 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). An employee's preexisting disease or infirmity does not disqualify her workers' compensation claim if the work-related injury either aggravated or combined with the disease or infirmity to produce the disability for which compensation is claimed. Andrews v. Music Mountain Water Co., 25,634 (La. App.2d Cir. 04/06/94), 637 So.2d 571.
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. Green v. Conagra Broiler Co., 26,599 (La. App. 2d Cir. 03/01/95), 651 So.2d 335. The causal relationship, however, can be established when the employee proves that before the accident she 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 possibility of causal connection between the accident and the disabling condition. Allen v. Misco Paper, 27,146 (La. App. 2d Cir. 08/23/95), 660 So.2d 175.
Whether claimant has carried her burden of proof and whether her testimony is credible are questions of fact to be determined by the WCJ. Where there are two permissible views of evidence, the fact-finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993).
In the case at bar, claimant argues that the medical evidence clearly showed that before the Kroger accident she was not disabled. In our examination of the record, however, we find that there are two permissible views of the evidence. One is that the Kroger accident caused or combined with a pre-existing condition to leave the claimant disabled. The second, and the one the WCJ subscribes to, is that the Kroger accident was not the cause or even a
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