DARRYL DAVID FISH v. LION INSURANCE COMPANY AND SOUTH EAST PERSONNEL LEASING INC (2025)

In this workers’ compensation case arising from an alleged injury purportedly sustained while unloading bundles of shingles from a flatbed truck, claimant Darryl David Fish appeals a judgment from the Office of Workers’ Compensation rendering judgment in favor of defendants South East Personnel Leasing, Inc. and Lion Insurance Company and dismissing Mr. Fish's claims with prejudice.¹ For the following reasons, we affirm the judgment of the Office of Workers’ Compensation.

BACKGROUND AND PROCEDURAL HISTORY

The disputes at the heart of this case are primarily factual. In August of 2021, Mr. Fish began working as a delivery truck driver for Vinyltech. Mr. Fish alleges that on December 1, 2021, around noon, he injured his neck, back and feet while unloading bundles of shingles from pallets on a Ford F-650 flatbed truck at an unspecified jobsite in Kenner, LA. There were no witnesses or recordings of this accident. Mr. Fish alleges that he reported this incident back at the Vinyltech facility to his immediate supervisor, Corey Byrne, and that Randy Hebert, another employee, witnessed or overheard this conversation. After reporting the incident, Mr. Fish subsequently took off work to rest and never returned to work.

Defendants maintain that they have no record of a work accident and that Mr. Fish never reported a work injury to Mr. Byrne or any other company representative. Defendants argue that, on the date of the alleged incident, Mr. Fish was assigned to pick up roofing materials that would have been loaded and unloaded by a forklift, and that Mr. Fish never unloaded materials on the date of the alleged incident nor did he make any deliveries to a job site that day. Randy Hebert denied overhearing Mr. Fish report an injury to Mr. Byrne and stated that Mr. Fish appeared physically fine and displayed no evidence of injury. Defendants contend that medical treatment sought by Mr. Fish following the alleged incident relates to prior work injuries sustained in 2018 and 2006.

Mr. Fish filed his claim for compensation on November 25, 2022. The parties were unable to resolve their factual disputes, and the matter proceeded to trial on December 7, 2023. At trial, the court heard testimony from Mr. Fish, David Cook, a private investigator, Benjamin Becker and Randy Hebert, former Vinyltech employees, Shane Mulkey, owner of Vinyltech, and Corey Byrne, Mr. Fish's former supervisor. The trial resumed on February 28, 2024, during which Dr. Allen Johnson testified for Mr. Fish as an expert witness, and the depositions of Dr. William Alden and Dr. Douglas Lurie were introduced into evidence in lieu of live testimony. Following trial, the court took the matter under advisement. Judgment was rendered on March 28, 2024, with the trial court finding that Mr. Fish failed to prove the workplace accident or to establish a work-related injury and determined no workers’ compensation benefits were owed.

On appeal, Mr. Fish raises two assignments of error: first, the trial court erred in finding that Mr. Fish failed to meet his burden proof to show he suffered a workplace accident and work-related injury on December 1, 2021; and, second, the trial court erred in failing to afford Mr. Fish the presumption of causation.

DISCUSSION

A worker in a compensation action must establish a personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031(A). An employee may prove by his or her testimony alone that an unwitnessed accident occurred in the course and scope of employment if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged accident. Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La. 1/19/11), 56 So.3d 215, 218-9. Corroboration of the worker's testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id. The fact-finder's determinations as to whether the worker's testimony is credible and whether the worker has discharged his burden of proof are factual determinations that should not be disturbed on appellate review unless clearly wrong or manifestly erroneous. Id.

Appellant's first assignment of error relates primarily to the factual dispute over whether or not the accident occurred on December 1, 2021. The evidence of the incident consisted of testimony by claimant (the only first-hand witness) and other witnesses who did not see the alleged accident. No written or photographic evidence of the alleged accident was presented.

Mr. Fish testified at trial that he would unload 2800-pound pallets of shingles and other roofing supplies from the delivery truck bundle by bundle, with each bundle weighing 40 to 45 pounds, at a pace of one pallet unloaded per hour. He testified that he unloaded everything by himself. He stated that on December 1, late in the evening, his back “popped” while he was unloading the full delivery truck, but that he finished the task and drove back to the office. He claims that he told Mr. Byrne that he hurt his back and that the only response from Mr. Byrne was “Okay.” He stated that he then returned to Vinyltech the next day, December 2, at which time he repeated his claim of injury to his back to Mr. Byrne in front of Mr. Hebert, and Mr. Byrne's only response was “Okay” and to inquire whether Mr. Fish was quitting.

Mr. Hebert testified that he recalled Mr. Fish returning to the warehouse on December 1st with a full truck and announcing, “I quit.” Mr. Hebert also stated that Mr. Fish did not appear hurt or injured when he left the facility that day. He stated that it would not be normal for a delivery driver to unload a full truck of shingles by himself, and also that there were some types of materials that could not be unloaded by a single person without breakage.

Mr. Mulkey, the owner of Vinyltech, stated that delivery drivers were not expected to unload trucks manually by themselves. Rather, the subcontractor crew at the jobsite would be there to unload the truck and had an incentive to do so quickly to meet their production goals. He stated that he only learned of Mr. Fish's injury upon receiving the papers for the lawsuit. It was Mr. Mulkey's understanding that Mr. Fish quit because he was asked to make another drive to a warehouse in Covington to pick up materials.

Mr. Byrne testified that on the day of the alleged incident, Mr. Fish had been sent to pick up materials from a distributor in Covington twice because he was missing material when he returned the first time. Upon his return from this second trip, Mr. Fish was agitated and stated “I'm done” and left the job with no report of any kind of injury. Mr. Byrne claims that the truck at that time had only a small order (six boxes) of vinyl siding and that Mr. Fish did not have to drop off or unload any shingles at any job sites that day. He said Mr. Fish did not appear hurt or injured when he left the job.

He testified that the usual procedure for a driver who shows up at a jobsite with a full load and no one there to unload it would be a call to him, whereupon he would locate the crews to perform the unloading. In such a situation on previous deliveries, Mr. Fish had called Mr. Byrne to report no one was present to unload the materials on his truck. He stated that unloading a full truck would take at least six to eight hours for one person by themselves. This would mean the delivery driver would only make one delivery a day, which is not the company's expectation. Mr. Byrne testified that he only learned Mr. Fish was claiming an injury when he was contacted by attorneys to set up a deposition. He denied that Mr. Fish ever told him that he hurt his back on December 1 or 2.

Following the trial, judgment was rendered in favor of the defendants. In her written reasons for judgment, the trial judge stated her findings of fact. She found Mr. Fish's statements about the events that took place made in his deposition and at trial to be inconsistent, particularly pointing out Mr. Fish's statements about making four deliveries a day and unloading every truckload alone at eight hours per truckload, which would mean he would be unloading truck loads 32 hours per day, an impossibility. The judge also found the statements by Mr. Mulkey, Mr. Byrne, and Mr. Hebert that it was not the company policy for drivers to unload large loads from trucks to be consistent and credible. The testimony and observations by Mr. Byrne and Mr. Hebert regarding Mr. Fish's last day of employment, including his statement that he quit, and appearing to walk off the job uninjured, were considered extremely consistent. In stating that the claimant failed to meet his burden to prove the work accident, the judge expressly stated that she found that the testimony and evidence presented discredit and cast doubts on claimant's version of the alleged incident.

Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Salgado v. Tri-Par. Roofing & Home Improvements, 19-407 (La. App. 5 Cir. 5/27/20), 296 So.3d 1201, 1206, (citing Glob. Constr. & Equip., L.L.C. v. Rathborne Properties, L.L.C., 18-169 (La. App. 5 Cir. 5/29/19), 274 So.3d 837.) If the trial court's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Ardoin, 56 So.3d at 219. When there are two permissible views of the evidence, the fact-finder's choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La. 1993). Upon review of the record before us, we find no manifest error in the judge's findings of fact and decision not to credit the testimony of Mr. Fish.

In light of this finding, we pretermit any further discussion on appellant's second assignment of error. Given that the court found that claimant failed to carry his burden of proof that an accident occurred, and finding no manifest error in that determination, the issue of whether or not the appellant is entitled to the presumption of causation is moot. The judgment of the trial court is affirmed.

AFFIRMED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. WISEMAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY FEBRUARY 26, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-477

CURTIS B. PURSELL CLERK OF COURT

E-NOTIFIED

OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)

ERIC E. POPE (APPELLEE)

MAILED

HONORABLE HEATHER PETH FAIRCHILD ANGELA M. BAUTISTA (APPELLEE) CLIFFORD E. CARDONE (APPELLANT)

(DISTRICT JUDGE) MEGAN C. GLADNER (APPELLEE) S. WATSON TURNIPSEED (APPELLANT)

OFFICE OF WORKERS' COMP. - DIST. 7 ATTORNEY AT LAW ATTORNEYS AT LAW

JUDGE, DISTRICT 7 3421 NORTH CAUSEWAY BOULEVARD 829 BARONNE STREET

880 WEST COMMERCE ROAD SUITE 900 NEW ORLEANS, LA 70113

SUITE 401 METAIRIE, LA 70002

HARAHAN, LA 70123

FOOTNOTES

1.   South East Personnel Leasing, Inc. was the company employing workers on behalf of Vinyltech of New Orleans, LLC; most of the testimony at trial refers to the employer as Vinyltech, therefore hereinafter the employer will be referred to as Vinyltech.

TIMOTHY S. MARCEL JUDGE