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Sheppard v. Isle of Capri8/17/2005
on appeal are exclusively factual and subject to manifest error review. After carefully reading the transcript, depositions, medical records and other exhibits, we cannot say the judgment is plainly wrong. Each of the factors outlined by the court in Blair v. Wal-Mart Stores Inc., supra, fully support the WCJ's findings.
While Ms. Sheppard was adamant that she reported the accident promptly, the call-out slips failed to support this and several live witnesses contradicted her outright; the WCJ was entitled to find her report was late. Notably, Ms. Sheppard initially sought leave under FMLA, which would be inconsistent with a work-related injury . She offered no testimony from any supervisor to substantiate her claim of an accident. She called Ms. Jackson as a witness, but even from the impassive record, Ms. Jackson's testimony is vague and evasive, and provides no basis to disturb the WCJ's credibility call. There was no testimony of family or friends. Ms. Sheppard admitted continuing to work, first as a substitute teacher and then as a part-time cashier; she also drew unemployment compensation for seven months in 2003, indicating an ability to work. La. R.S. 23:1600 (3)(a). Sitting as a trier of fact, this court might not have rejected the claim that Ms. Sheppard "had worked her job for quite some time prior to the incident without problems," as the record simply does not address this. Nonetheless, the medical evidence shows a fairly extensive history of prior back injuries, which the WCJ appropriately summarized.
Ms. Sheppard particularly argues that Drs. Peele and Hudson related her current condition to the accident. In response to a leading question, Dr. Peele agreed it was "more probable than not that the lifting of the bags caused her back to hurt": "I mean, I had no reason to believe other than what she was telling me, and I didn't find anything that would make me think anything else." Later, however, he clarified that Ms. Sheppard never reported any specific incident; he concluded it was "lifting as a repetitive problem that would aggravate her." On cross examination, Dr. Hudson agreed that her symptoms were consistent with an accident similar to the one she described and occurring on March 30; however, he also testified that she never described the accident or said when it occurred. On this equivocal testimony, we cannot say the WCJ was plainly wrong.
In short, the WCJ was entitled to find that other evidence discredited or cast serious doubt on Ms. Sheppard's claim of an unwitnessed accident on March 30. Further, the WCJ could find the circumstances following the alleged incident did not support the claim. Bruno v. Harbert Int'l Inc., supra; Rosson v. Rust Constructors Inc., supra. On this record, we perceive no manifest error. The judgment is affirmed.
Conclusion
For the reasons expressed, the judgment is affirmed. Costs are charged to Ms. Sheppard in accordance with La. C.C.P. art. 5188. This opinion is designated for publication pursuant to La. R.S. 23:1310.5 F.
AFFIRMED.
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