INJURED WORKERS MUST PROVE AN ACCIDENT

In the New Orleans workers compensation case the court made it clear that injured workers must prove an accident happened in order to get workers compensation.

The employee, Mark Tubre, made a claim for workers’ compensation benefits after he hurt his back while an employee of Automobile Club of Southern California (better known as “AAA”) on Christmas Day, 2012. He was the manager on duty and the only person at work when he either slipped or tripped on a palette as he was putting a battery on a shelf. Tubre had hurt his back before. He claimed this on the job accident aggravated his old back problem. He tried to report the slip to his supervisor who was supposed to be there that day but didn’t come in.

Just prior to Christmas and Tubre’s unwitnessed accident someone complained that Tubre was repairing and/or selling vehicles on AAA property that were not part of the fleet. After further investigation some of the allegations proved true and were in violation of AAA’s ethical code of conduct. On December 26, 2012, AAA’s director of human resources traveled to New Orleans for a surprise visit to talk to Tubre about the complaints. During this surprise visit Tubre mentioned the work related accident and injury from the previous day. He didn’t give any details about the accident and didn’t cooperate with the investigation and was fired. Tubre forgot one og the big rules of workers compensation – injured workers must prove an accident actually happened.

After a trial Judge Robert Varnado decided Tubre failed to prove the occurrence of a work-related accident and was not entitled to workers’ compensation benefits. The Fourth Circuit Court of Appeal agreed and reiterated a workers’ compensation claimant’s burden of proof:

“The employee in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. 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 workers’ version of the incident; and (2) the workers’ testimony is corroborated by the circumstances following the alleged incident. In deciding whether the plaintiff has discharged his or her burden of proof, the fact-finder should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.”

The Fourth Circuit then pointed out that the fact that Tubre was being investigated and that his doctor didn’t find any evidence of a new injury made Judge Varnardo’s ruling reasonable.

Tubre v. Automobile Club of Southern California, 14-0859 (La.App. 4 Cir. 2/4/15), 160 So.3d 1021

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