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Bigge v. Lemoine Co.3/2/2005
AFFIRMED.
The defendant, The Lemoine Company (TLC), appeals the judgment of the workers' compensation judge finding that the plaintiff, Kim Bigge, suffered a work-related accident and that he was entitled to see a physician of his own choice. For the following reasons, we affirm.
FACTS
Bigge, a drywall mechanic, allegedly suffered an injury to his lower back on August 8, 2002, while moving boxes of documents from TLC's former office to its new office. The boxes, which were located in the second floor of a warehouse, were slid down to the first floor via doors nailed onto the stairs. Bigge, who was located at the bottom of the stairs, stopped the boxes as they reached the bottom and then handed them to another employee to be stacked onto a trailer. When stopping an especially heavy box, he claimed that he felt a pain in his back as the box hit his hands, causing him to immediately fall to the floor. He was taken to a doctor and given an injection for his back. He returned to the doctor two other times seeking treatment for back pain. Bigge returned to work on August 23, 2002, but was only able to work a few hours because of discomfort in his back. As he was unable to perform his job duties, he was terminated from his employment later that morning. Thereafter, he obtained counsel and requested that he be allowed to see a physician of his choice. This request was denied by the Louisiana Workers' Compensation Company (LWCC), TLC's workers' compensation insurance carrier, as it had already determined his claim was non-compensable.
Thereafter, Bigge filed a disputed claim for compensation seeking indemnity and medical benefits, the right to see a physician of his choice, and penalties and attorney's fees. TLC denied his claim alleging that he had forfeited his right to workers' compensation benefits via his violations of La.R.S. 23:1208 and 1208.1. After a trial on the merits, the workers' compensation judge held that Bigge had sustained a work-related accident, was entitled to see a physician of his choice, was entitled to indemnity benefits from October 2002, when he returned to work, and awarded him penalties of $4000 and attorney's fees of $6000. Upon the denial of its motion for new trial, TLC suspensively appealed from this judgment.
ISSUES
On appeal, TLC raises six assignments of error. It argues that the workers' compensation judge erred in finding that Bigge satisfied his burden of proving that he suffered a work-related injury and in failing to address its claims that he violated La.R.S. 23:1208 and 23:1208.1. It further argues that the workers' compensation judge erred in finding that Bigge was entitled to see a physician of his choice, in awarding him indemnity benefits, and in assessing it with penalties and attorney's fees.
WORK-RELATED ACCIDENT MISREPRESENTATIONS
In its first two assignments of error, TLC argues that the workers' compensation judge erred in finding that Bigge suffered a work-related accident and in failing to address its allegations that he violated La.R.S. 23:1208 and 1208.1.
In order to recover workers' compensation benefits, an injured employee must prove by a preponderance of the evidence that he suffered a "personal injury by accident arising out of and in the course of his employment." La.R.S. 23:1031(A). An "accident" is defined as an "unexpected or unforseen 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 Louisiana Supreme Co
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