MWCC NO.
98 04990-G-2778
| LLOYD J.
BERGERON, JR.
vs. SANDERSON
FARMS, INC.
|
EMPLOYEE
EMPLOYER
|
REPRESENTING
EMPLOYER/CARRIER:
Honorable
Douglas Boone, Attorney at Law, Laurel, Mississippi
The above styled cause came on for review in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Claimant's "Petition for Review" by the Full Commission.
Having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated March 29, 2001.
SO ORDERED, this the 16th day of July, 2001.
MISSISSIPPI
WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
ATTEST:
Jo Ann McDonald, Secretary
____________________________
MWCC No.
98 04990-G-2778
| LLOYD J.
BERGERON, JR.
vs. SANDERSON
FARMS, INC.
|
CLAIMANT
EMPLOYER
|
REPRESENTING
EMPLOYER/CARRIER:
Douglas Boone,
Esq., Laurel, Mississippi
The claimant
alleges disability resulting from a job-related lower back injury on April
14, 1998. The employer has denied the claim. Hearing of the matter on the
merits was begun, but not completed, in Hazlehurst on February 25, 2000.
Because the claimant was allowed at that time to place in evidence certain
documentary evidence, and to testify, about his post-injury efforts to
obtain other employment without having previously disclosed this evidence
to the employer, the hearing was recessed for a sufficient amount of time
to allow the employer to investigate that evidence. A second hearing session
was then convened in Hazlehurst on October 5, 2000, but after some eight
hours of additional testimony and evidence the claimant was still on the
stand under cross-examination by counsel for the employer. At the close
of this hearing session the undersigned determined that the threshold issue
of compensability might properly be decided on consideration of the existing
record plus the deposition testimony of the remaining crucial fact witness,
Mr. Bryce Rogers.1 The parties were therefore
instructed to take and submit the deposition of Mr. Rogers, with the understanding
that the Administrative Judge would admit that into evidence, consider
it in conjunction with the previously compiled record, and then determine
either that the claimant had failed to meet his burden of proof on compensability
or that further testimony and evidence would be needed. The original transcript
of the Rogers deposition was filed with the Commission on December 18,
2000 and has now been duly marked and admitted by the undersigned as set
out herein below.2 It has indeed now been determined
that there is sufficient evidence in the record to dispose of the case
on the threshold issue of compensability, and counsel for the parties have
been so informed.
Immediately prior to the first hearing session the parties were able to stipulate that the claimant's average weekly wage at the time of the alleged injury was $403.44 and that Exhibits 1-7, as set out on the Exhibit Inventory herein, were admissible in evidence. At the outset of that first session, a composite of documents from MWCC file # F-0386 was admitted as E/C-8 over the claimant's objection, medical records under affidavit of Dr. Rhymes were admitted as E/C-9 over the claimant's objection, and medical records under affidavit of Dr. Adatto were admitted as E/C-10 over the claimant's objection. During that session, records from Hardy Wilson Memorial Hospital in Hazlehurst pertinent to the claimant's alleged injury were admitted as CL-11, and a composite of documents concerning the claimant's asserted efforts to find other employment was admitted as CL-12 over the defendant's objection, but on the condition that the defense would have ample time following the hearing to investigate the named prospective employers before the hearing was reconvened. The claimant was instructed to provide defense counsel with an address and telephone number for each named employer, with the understanding that failure to do so in any instance would result in evidence about that particular employer being stricken or otherwise denied from the record.
Because the first hearing session was recessed before the claimant had completed his direct testimony, leaving some of the post-injury prospective employers on Exhibit 12 unaddressed, it was agreed that any further testimony by the claimant regarding a post-injury job search would be handled by deposition to be taken prior to any resumption of the live hearing. That deposition was indeed taken on August 17, 2000, but defense counsel refused to proceed with any cross examination at that time after a dispute arose regarding the intended scope of the deposition, such that cross-examination was reserved for the resumption of the hearing. At any rate, the transcript of that truncated deposition was admitted by stipulation as General Exhibit 13 at the outset of the reconvened hearing on October 5, 2000. Also admitted by stipulation at that time were the depositions of Aaron Zanca (E/C-14), Iris Gros (E/C-15) and Gilbert Hebert (E/C-16), taken by the defense in investigation of the claimant's job search evidence, and a copy of the claimant's Louisiana driver's license (E/C-17).
At the second
session the defense also moved to strike from Exhibit 12 those named employers
for whom the claimant had failed to provide an address and/or phone number
as previously instructed, whereupon the claimant countered that certain
of those for whom that information had admittedly not been provided had
nonetheless been located by the vocational expert for the defense, such
that some fifteen (15) of the named employers on Exhibit 12 were ultimately
stricken from that exhibit.3 In addition to
certain other exhibits not necessary to this deposition, the claimant's
original discovery deposition of March 24, 1999 was admitted at the second
session as E/C-23 without objection. The previously mentioned deposition
of Bryce Rogers was marked and admitted by the undersigned as E/C-25.
The claimant is a 32 year old resident of Monticello who dropped out of school in the ninth grade but obtained a GED certificate in 1986. He claims to suffer from dyslexia, although he offered no evidence to support that, but he also conceded that he is able to read and write. Since 1986 Mr. Bergeron has worked at a variety of jobs, none lasting more than six consecutive months, and has filed workers' compensation claims for three previous job injuries, with each such injury, including the presently alleged one, occurring within the first few months of the particular employment. He has also drawn Social Security disability benefits for two different periods since 1995, based on his work-related lower back injury in March of 1993, for which he had surgery at the L4-5 level and received 78 weeks of temporary total disability benefits (see Ex. 8).
Mr. Bergeron testified that he worked as a truck driver hauling oil field equipment for three different firms in Houma, Louisiana, during the several years just prior to his joining Sanderson Farms in April of 1998, those being Dynasty Transportation, Venture Transport and Ace Transportation. He said that prior to hiring on at Dynasty in June of 1996 he had been drawing Social Security disability benefits since October of 1995 and had not worked at all, except for two weeks at a Domino's Pizza in Houma, since his workers' compensation back injury at Nikko Plastics in March of 1993; that he worked at Dynasty for two months before moving to Venture for better pay in August of 1996; that he worked at Venture until an automobile accident on October 25, 1996, for which he obtained a $100,000.00 settlement; and that he then drew Social Security disability again and did not resume working until joining Ace in February of 1998.5
The claimant's Sanderson Farms application, dated February 2, 1998, is in evidence as Exhibit 19, and in it he stated that he had worked for Venture from September of 1996 to December of 1997. Because he testified on direct that he never worked for Venture after his auto accident in October of 1996, he was asked about this contradiction during cross-examination, and he then explained that he was "on their [Venture's] roster" until December of 1997. He also conceded on cross-examination that he had misstated his tenures at both Candy Fleet and Nikko Plastics on the Sanderson application, having actually worked at Candy Fleet only two months, rather than two years, and having actually worked at Nikko Plastics only the two months prior to his work injury there, rather than 21 months.
Mr. Bergeron began work at Sanderson Farms as an egg truck driver during the first week of April in 1998. His job involved driving his truck to various chicken farms, loading carts holding about 800 pounds of eggs onto the truck and then delivering his load to the Sanderson plant in Gallman. According to the claimant, these egg carts are mounted on wheels or rollers, the truck is backed up to the chicken house at the farm and parked at a loading area, the individual carts are rolled onto a hydraulic lift gate at the back of the truck one at a time and secured on the gate with a safety chain, and two carts at a time are then raised on the gate and rolled into the trailer, where they are secured again by some sort of bar that is attached across them by the driver. Mr. Bergeron said he was taught how to accomplish all of this during several days of training when he was accompanied by other Sanderson employees, such that he did not start driving his route alone until April 13, 1998, the day before the alleged injury.
The claimant testified that he began work on April 14, 1998 at approximately 2:00 a.m. and had worked straight through until just before midnight when he arrived at a farm outside Magee; that he rolled two carts of eggs onto the lift gate and attached the safety chains to them; that when he attempted to raise the hydraulic lift gate it malfunctioned and stopped; that the safety chain holding the cart on the left "popped off or it came loose" when the lift gate stopped; that he then reached to grab the cart of eggs to keep it from rolling off the lift gate, twisting his body in the process; and that at this time he felt a burning sensation in his lower back, such that he released the egg cart and it slid off the lift gate. He said that he had been having trouble with the lift gate "sticking and jumping" all that day, and that the gate had a lean to the left which caused the egg cart to roll off, During his discovery deposition on March 24, 1999, Mr. Bergeron testified that he took his truck to the company shop at about 4:00 p.m. after his first 25-cart delivery on April 14 and asked Bryce Rogers, his supervisor, to have the lift gate fixed, at which time Rogers told him they would fix it temporarily and complete the job the next day. (Ex.23, pp.40-41).
Bryce Rogers has worked for Sanderson Farms since June of 1994 and had been their hauling supervisor and driver trainer for almost two years as of April of 1998. As such he was Mr. Bergeron's supervisor at the time of the alleged injury and he instructed Mr. Bergeron in the operation of the truck in question, including the operation of the lift gate and the use of the safety chains which secured the egg carts. He had driven that very truck himself for 18 months, on and off, between 1995 and 1998. Mr. Rogers testified that, based on his knowledge of and experience with that truck, it was physically impossible for the claimant to have been injured under the sequence of occurrences as alleged (Ex. 25, pp. 26-27-68). He also testified that the claimant never told him on April 14, 1998 that the lift gate was not working properly; that Sanderson maintenance records indicate the lift gate was routinely lubed and check for hydraulic fluid and proper operation by the shop during that day without any resulting indication it was ever not working properly; and that the lift gate was working entirely properly and had no lean at all to it when he himself was the next person to use the truck to pick up eggs on April 16, 1998 (Id. at pp. 11-16).
Mr. Bergeron testified that after a period of medical care for and recuperation from the subject back injury he began looking for other work. As previously mentioned, he submitted a list of some 88 prospective employers which he allegedly contacted, mostly in and around Houma, during late March through early August of 1999 (Ex. 12), and he gave direct testimony at the first hearing session and in his subsequent deposition (Ex. 13) to the effect that he had made a bona fide but unsuccessful effort to obtain employment at each one of the listed businesses. As also mentioned above, 15 of the listed businesses were stricken from his list (Ex. 18) because the claimant was unable to provide an address and a telephone number for those, and the employer took the depositions of representatives of three others in order to investigate the claimant's testimony.
According to Mr. Bergeron, he went to Reagan Equipment Company in Houma on March 26, 1999 in search of work, put in an application, spoke with a Mr. Aaron Zanca there, was told there was a job opening, and was indeed offered a job. He said Reagan Equipment was a company that shipped "wire line services and tanks" to offshore oil rigs and that he refused the offered job because he was told it required lifting up to 100-pound rolls of wire and up to 150 pounds of tubing, which requirements exceeded the lifting restrictions placed on him by Dr. Goel.
Aaron Zanca testified by deposition taken on September 7, 2000 (Ex. 14). He said that he is the branch manager of Reagan Equipment's Houma office and has worked at that office since February of 1997; that Reagan is a distributor for natural gas engines packaged with pumps or compressors and does not deal in tubing or wire lines; that the employees are rarely required to lift anything weighing over 15-20 pounds; that they had no job openings at all when Mr. Bergeron inquired about work; and that the claimant was given an application to fill out, but declined to do so. He specifically recalled that the claimant asked him if they were a tubing and wire line service and he told the claimant that was not the case. (Id. at p. 7) He also testified that it was his impression at that time that Mr. Bergeron did not really want to apply for a job. (Id. at pp. 11-13)
On cross-examination at the second hearing session, the claimant affirmed that he spoke with Mr. Zanca at Reagan Equipment, and he again stated that he did not get a job there because he was told he would "have to be doing some lifting."
The claimant testified that he also went to a company called Rent-A-Lease in Houma on March 26, 1999, although he could not recall whom he spoke with; that Rent-A-Lease mixed chemicals for and dealt in drilling mud for off-shore oil rigs; and that they had a job opening, but he did not fill out an application because he was told that he was not qualified to mix the chemicals, and that he would have to lift 100-pound sacks of drilling mud, as well as mixing tools.
Iris Gros is the office manager for Rent-A-Lease at its main office in Lockport, Louisiana, and she also testified by deposition taken on September 7, 2000 (Ex. 15). Ms. Gros said that her company does not deal in drilling or any other kind of mud and never has; that the company rather rents and sells sandblasting and painting equipment; that the company never mixes any chemicals, but occasionally mixes some paint; that the employees use forklifts to lift anything weighing more than 50 pounds; that the company does have a branch office in Houma, but anyone applying for a job there would be immediately referred to the main Lockport office to fill out an application; and that she has been in charge of accepting job applications for the last nine years, but had no record or recollection of Mr. Bergeron.
On cross-examination about Rent-A-Lease at the second hearing session, the claimant said he recalled that they were not hiring at the time and that he would not have been able to lift the required weights, such as the I 00-pound sacks of mud. When asked about the discrepancy between his prior testimony and the testimony of Ms. Gros regarding the nature of the business, his explanation was that during the first hearing session, "I was more worried about my grandpa being in a serious accident than thinking on these questions."
During the first session the claimant testified that he also sought work at Offshore Energy Service on Thompson Road in Houma on March 26, 1999; that this company shipped chemicals to offshore oil rigs; that he spoke there with Gilbert Herbert (not Hebert), the secretary of the company, and filled out an application; that he was refused a job because he would not be able to lift the 100-pound bags of chemicals as required; and that the company's only business involved chemicals for oil rigs.
Mr. Gilbert Hebert (not Herbert), an employee of Offshore Energy Services on Thompson Road in Houma since the fall of 1997, also testified by deposition taken in September of 2000 (Ex. 16). He said he was the operations manager and in charge of interviewing job applicants at the time Mr. Bergeron called on him in March of 1999. Mr. Hebert testified that his company had nothing at all to do with chemicals and in no way involved any 100-pound bags of chemicals, that they were rather in the business of "tong service, computer torque turn, running casing and tubulars, and that's it, lay down machines. " (Id. at p. 6)6 On direct questioning, he gave the following account of his encounter with the claimant:
A: He said that - he specified that he couldn't pick up anything over 50 pounds. Then after that he said that he really didn't want the job, he was just wanting me tell whoever called that he had applied.
Q: So he applied but he said he didn't want the job?
A. Right, and I figured it was some kind of unemployment or something like that. I don't know what he was trying to do, but he wanted me to say that he had applied for that job and that that's all he needed.
Q. He wasn't interested in working, he was just interested in applying?
A. Right. I said, well, then you don't have the job.
Mr. Bergeron
was cross-examined during the second hearing session about his call on
Mr. Hebert at Offshore Energy. He again testified that he both asked for
a job and filled out an application there, and he acknowledged and affirmed
his prior testimony that he was not qualified for a job there because he
couldn't lift the 100-pound bags of chemicals as required.
Upon consideration of the record evidence and the applicable law, the Administrative Judge finds that the claimant has failed to meet his burden of proving by a preponderance of the credible evidence that he suffered an injury arising out of and in the course of his employment with Sanderson Farms, so his claim must be denied and dismissed in its entirety.
Mr. Bergeron's
testimony regarding the circumstances and event of his injury is not corroborated
by any other witness, but this alone is not grounds for denial of his claim,
because the uncorroborated testimony of the claimant can be competent evidence
to substantiate his claim, so long as that testimony is found to be credible
and trustworthy. Dunn, Mississippi Workers' Compensation,
Sec. 264 at 32.0-21
(3d Ed. 1982). Mr. Bergeron's testimony on his injury is substantially
contradicted by that of his supervisor, Bryce Rogers, and "negative testimony
concerning the cause of injury may be substantial evidence upon which a
claim may be denied." White v. Superior Products,
515 So. 2d 294
(Miss. 1987). Even so, Mr. Rogers' contradictory testimony, standing alone,
could be said to merely cast the case in the "doubtful" category and thereby
allow a finding of compensability, since "doubtful cases must be compensated."
Big "2" Engine Rebuilders v. Freeman, 379 So. 2d 888,
889 (Miss. 1980). But Mr. Bergeron has
raised enough doubt to remove his claim from the realm of the compensable.
His problem is not the contradictory testimony of Mr. Rogers, but the wholly
and devastatingly contradictory testimony of the three disinterested witnesses
from Louisiana, the combined effect of which is to give the Administrative
Judge ample reason to conclude that the claimant's own uncorroborated testimony
is entirely untrustworthy and abjectly inadequate to support an award of
benefits.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the claim of Lloyd Bergeron against Sanderson Farms should be and is hereby denied and dismissed.
SO ORDERED, this the 29th day of March, 2001.
JAMES HOMER
BEST
ADMINISTRATIVE
JUDGE
ATTEST:
Jo Ann McDonald,
Secretary
____________________________
1. Mr. Rogers had been named as a fact witness subject to call by both parties in their pretrial statements. The only other fact witness named by the claimant was his wife, and the undersigned was given to understand that Mrs. Bergeron's testimony would not be related to the circumstances of the alleged injury.
2. Docket personnel never informed the Administrative Judge that the deposition had been filed, even though it came under a cover letter specifically addressed to the Administrative Judge. Instead it was discovered by the Administrative Judge during a routine review of pending cases in late January of 2001.
3. Exhibit 18 was admitted by stipulation to identify those specific employers stricken from Exhibit 12.
4. The combined transcripts of the two hearing sessions, obtained by the undersigned once defense counsel ordered pay records, are some 400 pages in length. Furthermore, there are six depositions in evidence totaling some 300 additional pages of testimony. The undersigned will therefore refrain from attempting to summarize all the record evidence.
5. By rough estimate, Mr. Bergeron has received about as much or more financial support from various disability benefits and settlements as he has from employment, and has correspondingly been off work about as much as he has been on, since 1986, the year he turned 18 and had his first work injury.
6. The undersigned does not pretend to know exactly what the business does, but presumes it is related to offshore oil drilling.