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Judgment rendered March 3, 2010. Application for rehearing may be filed within the delay allowed by art. 2166, La. C.C.P.

No. 45,058-WCA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

TERESA D. LOWE

Plaintiff-Appellant

Versus

SKYJACKER SUSPENSIONS

Defendant-Appellee

***** Appealed from the Office of Workers' Compensation, District 01E Parish of Ouachita, Louisiana Docket No. 08-06371 Honorable Brenza Irving Jones, Judge

***** C. BRYAN RACER, P.L.C. Counsel for Appellant Counsel for Appellees, Skyjacker Suspensions and LUBA Casualty Insurance Company

SNELLINGS, BREARD, SARTOR, INABNETT & TRASCHER, L.L.P. By: Donald J. Anzelmo

***** Before WILLIAMS, PEATROSS & MOORE, JJ.

PEATROSS, J. The workers' compensation judge ("WCJ") granted the employer's motion for involuntary dismissal at the close of claimant's case, dismissing the case with prejudice. The WCJ found that the claimant had failed to meet her burden of proving that a work-related accident had occurred. The claimant now appeals. For the reasons stated herein, we affirm. FACTS The claimant, Teresa D. Lowe, was employed as an order checker in the shipping department of Skyjacker Suspensions ("Skyjacker"). Ms. Lowe's duties included checking pallets of parts used in lift kits for four-wheel drive vehicles to ensure that the proper parts were on the pallets for shipment of orders placed with Skyjacker. According to Ms. Lowe, she regularly had to remove parts from the pallets and replace them with the correct parts. She testified that the parts varied in weight and size, some possibly weighing as much as 60 pounds. Ms. Lowe testified that, in late March or early April 2008, while she was carrying four boxes full of shocks, she "felt something pull in her back." She did not report the incident, nor did she seek medical attention. Ms. Lowe continued with her regular duties and did not miss any work due to the alleged injury. Ms. Lowe further alleges, and testified, that a second "accident" occurred as she was attempting to remove boxes from a pallet and the boxes broke, causing her to fall backward. She testified that a coworker, Marty, whose last name is unknown and whom Ms. Lowe believed to be in a supervisory role, helped her up after the fall. Ms. Lowe claims that she sustained a lower back injury in the fall. As with the first alleged incident,

Ms. Lowe did not report the accident and completed her shift on that day and continued her employment thereafter. In her testimony, Ms. Lowe admitted that her supervisor was actually not Marty, but was Carey Davis, although Ms. Lowe maintained that she believed that she could also "report to" Marty. On April 22, Ms. Lowe sought treatment for back pain from her regular physician, Dr. Warren Daniel. All charges were billed to and paid by Vantage Health Plan, Inc., Ms. Lowe's health insurer. Dr. Daniel's notes from the initial visit indicate that Ms. Lowe was experiencing back pain radiating down into her right leg, with an onset of two weeks. There is no notation regarding any injury or what may have precipitated the back pain. Dr. Daniel prescribed medication for Ms. Lowe, x-rayed her spine and prescribed stretching and soaking. Dr. Daniel's records indicate that Ms. Lowe presented the following day, April 23, with continued complaints of back pain, still radiating down her leg. The notations for that day include the following: " * lifts heavy objects @ work - works in shipping @ Skyjacker." At this visit, Dr. Daniel ordered an MRI and referred Ms. Lowe to Dr. Myron Bailey. An appointment for Ms. Lowe was scheduled with Dr. Bailey. Ms. Lowe first saw Dr. Bailey on April 30. On the patient history questionnaire, Ms. Lowe described her discomfort as "lower back down to right leg." In the space provided for the "date of injury or when symptoms began," Ms. Lowe wrote "around 2-3 months ago." She provided no further explanation in the space provided for "Explain your problem" on the

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questionnaire. There is no mention of any injury or potential cause of Ms. Lowe's back pain in any of the records of Dr. Bailey. In fact, Ms. Lowe admitted in her testimony that she did not tell either Dr. Bailey or Dr. Daniel about any accident that occurred during her employment that may have caused injury to her back. Dr. Bailey treated Ms. Lowe and eventually performed surgery on her back. On July 16, 2008, Ms. Lowe filed a Disputed Claim for Compensation against Skyjacker seeking benefits, plus penalties and attorney fees for late/failure to pay benefits. On the claim form, Ms. Lowe described her injury as follows: While checking shocks, I discovered the wrong kits had been packed for an order. I removed the wrong kits and carried them to the shop to exchange for the correct merchandise. At the time, I felt a sharp pain in my lower back. Initially, I thought I had a pulled muscle, but that was not the case. Additionally, while arranging a pallet for shipping, I tripped and fell further injuring my back. Skyjacker disputed the claim, answering, inter alia, that no work-related accident had occurred. The matter proceeded to trial and Ms. Lowe was the sole witness called on her behalf. In her testimony, Ms. Lowe recounted the alleged accidents as follows: Q: Can you tell the Judge what you were doing when it occurred? I was taking product off of the pallet and was taking

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