#### Willard J. MATTE, Plaintiff-Appellee, v. POWER RIG DRILLING COMPANY, Inc., et al., Defendants-Appellants.

No. 3731.

Court of Appeal of Louisiana, Third Circuit.

March 2, 1972.

Rehearing Denied April 18, 1972.

Writ Refused May 18, 1972.

Shelton & Cline, by Thomas Robert Shelton, Rayne, for defendants-appellants.

*20Edwards & Edwards, by Homer E. Bar-ousse, Jr., Crowley, for plaintiff-appellee.

Before CULPEPPER, MILLER and DOMENGEAUX, J.

MILLER, Judge.

Defendant employer and its insurer Argonaut Southwest Insurance Company appeal the trial court judgment awarding plaintiff Willard J. Matte total and permanent workmen’s compensation benefits. We affirm.

Defendants concede that Matte is totally and permanently disabled, but contend that his credibility was destroyed and he therefore failed to prove a job-related accident.

This thirty year old plaintiff had been employed as a roughneck by Power Rig for two months. He took a pre-employment physical and denied prior back injuries. He had worked regularly for several different employers and had never been disabled or suffered a’lost time accident. His pay with Power Rig was substantially more than his past earnings. He had suffered backaches before and had sought treatment from chiropractors, but had not missed work for any reason.

On June 10, 1970 while handling a fifty to hundred pound sack of chemicals, he slipped on a muddy board and twisted himself. He did not fall but felt a sharp knife-like pain in his back. There were no witnesses to this incident, but he told a fellow employee Robert Simon that he hurt his back on the job that day.1 Plaintiff continued on the job by keeping ice in his hip pocket and this was observed by the entire crew. The toolpusher Ralph Black asked plaintiff about his back and plaintiff told him that he had hurt it on some other job.

Power Rig had a signout sheet which, if applicable, each employee signed each day certifying that he did not suffer an accident that day. Plaintiff did not sign on June 10 or 11, but a fellow employee signed for him. On the night of June 10, plaintiff described the accident to his wife. His pain caused him to spend the night horizontal on the floor. Plaintiff returned to the job on June 11, but was unable to get out of the car and spent the entire shift sitting in the car. He then went to the emergency room at Rayne Hospital. Since no physician was available he was.given pain relieving medication and told to return on June 12. He was hospitalized for an eleven day stay starting June 12 and was diagnosed as suffering a ruptured intervertebral disc.

Plaintiff explained that he told the tool-pusher that his back was injured on a prior job because this was his best job with the most pay, and he thought that Power Rig would discharge him if he sustained an accident on the job. Plaintiff’s claim for penalties and attorney fees was denied because of some of plaintiff’s statements and particularly his disavowal to the toolpusher that the accident occurred on Power Rig’s job. This ruling was not appealed.

Defendants appellants also attack plaintiff’s credibility on his statements to physicians denying prior back trouble when in fact he had been treated by chiropractors for backache. But plaintiff had not missed an hour’s work because of backache, and his prior condition was not remotely to be *21compared with the pain or disability following the June 10 accident.

A careful reading of the entire record shows that the trial court was manifestly correct in determining that plaintiff sustained an accident in the course and scope of his employment on June 10, 1970. This plaintiff had never missed one hour of work for an employer because of an injury or because of back trouble. On the day of the accident, plaintiff reported the injury to one fellow employee and everyone in the crew saw that plaintiff worked the remainder of the day with ice in his hip pocket. He did not sign the “no injury” certificate that day. That night he described the accident to his wife and spent the night suffering great pain on the floor of his home. On June 11 plaintiff went to work but could not get out of the car and remained in the car for the entire shift. That night he reported to the hospital, but was unable to see a physician. On June 12, he saw his family physician and was hospitalized for a period of eleven days and diagnosed by two physicians as suffering a ruptured disc. The testimony was uniform that plaintiff was a good worker, performed hard manual labor daily and had never missed an hour of work.

The employee must establish an accident by a preponderance of the evidence, i. e. by evidence which as a whole shows it to be more probable than not that an accident occurred at work. In making this determination great weight is attached to the trial court’s evaluation of the credibility of witnesses. Landry v. Employers’ Liability Assurance Corp., Ltd., 233 So.2d 624, 626 (La.App. 3 Cir. 1970); see also Fontenot v. Liberty Mutual Ins. Co., 230 So.2d 402, 404 (La.App. 3 Cir. 1970).

The testimony of plaintiff alone may prove the disabling accident where there are corroborating circumstances. Delafosse v. Industrial Painters, Inc., 199 So.2d 5S9 (La.App. 3 Cir. 1967).

In determining whether a claimant’s disability is causally related to an accident, great weight attaches to the fact of a sudden change from a condition of health or ablebodiedness prior to the accident to one of disability immediately thereafter. Ardoin v. Houston Fire and Casualty Insurance Co., 235 So.2d 426, 429 (La.App. 3 Cir. 1970).

The cases cited by defendant2 are distinguished on the facts.

The trial court’s judgment is affirmed. Costs of this appeal are assessed to defendants appellants.

Affirmed.

1

. At Tr. 118 Robert Simon testified that Matte told him about being hurt on June 10. On Cross-examination at Tr. 122 he verified that he had been told that Matte “hurt his back picking up mud.” At Tr. 128 on Cross-examination Robert Simon testified that he told defendant’s insurance adjuster that Matte told Robert Simon that he had-been-hurt on the job. Still on Cross-examination (at Tr. 128) Robert Simon was asked when Matte first complained of pain. He answered:

> “A. Well, that day he really complained ; the 10th of June. When I went down there to talk to him on the hopper he was hurting bad. *He told me he had hurt himself.*He said his back was hurting bad and he went and got some ice and put it in his back pocket. I knew he was hurting.” (Emphasis added.)

2

. Bryant v. Slidell Memorial Hospital, 243 So.2d 285 (La.App. 1 Cir. 1971); Landry v. Employers’ Liability Assurance Corp., Ltd., 233 So.2d 624 (La.App. 3 Cir. 1970); Lewis v. Celotex Corporation, 222 So.2d 647 (La.App. 4 Cir. 1969); and Clark v. Glenwood Hospital, Inc., 165 So.2d 540 (La.App. 2 Cir. 1964).

DOMENGEAUX, Judge

(dissenting).

I respectfully disagree with my brothers of the majority.

This is a case situation where there were no witnesses to the accident. The plaintiff was the only one to testify as to the occurrence of the accident. We should be guided, therefore, by the general proposition set out in the jurisprudence that a workmen’s compensation claimant can prove the occurrence of an accident solely by his own testimony *but*only if there is nothing to discredit the claimant’s testimony and only if his testimony is corroborated by the surrounding circumstances. Guilbeaux v. Trinity Universal Ins. Co., La.App., 134 So.2d 717, and the many cases cited therein; Lewis v. Celotex Corp., La.App., 222 So.2d 647; Clark v. Glenwood Hospital, La.App., 165 So.2d 540.

In suggesting that the plaintiff has not sustained his burden of proof, I am fully mindful of the “manifest error” and “much discretion” rules, but at the same time, it is difficult to reconcile a holding for the *22plaintiff in view of the many inconsistencies in his testimony. For instance, he told the tool pusher, Mr. Black, that he did not injure himself on the job with defendant but rather had gotten hurt previously in another employment. On the day of the alleged accident, while riding in an automobile from work with a co-worker, Robert Simon, they discussed plaintiff’s back pain, but Simon testified that plaintiff did not tell him that he had hurt his back on *this*job. A review of the other testimony of Robert Simon, although indicating that plaintiff told him he had hurt himself, does not state that plaintiff told him that he was hurt on the job with defendant. Paul Weber Simon, the driller, whose statement was stipulated to, said that he knew of no accident which occurred on the alleged date of the accident and that the only mention made to him by plaintiff was that plaintiff told him *before*work that morning that his back was hurting him and he would have to see a chiropractor on his next day off. Simon also heard plaintiff tell Mr. Black that he, plaintiff, had been injured on a previous job. Plaintiff failed to tell his family doctor that his back had been injured as a result of the alleged accident. There are other inconsistencies as to what plaintiff told the other doctors involved as to the occurrence of an accident. Plaintiff consulted a chiropractor some two or three weeks before the alleged accident for back pain, although plaintiff’s wife testified that plaintiff did not have any previous back trouble. Plaintiff testified that on the day of the alleged accident, prior to it, his back was not hurting; however, as indicated above, Paul Weber Simon testified to the contrary. Plaintiff testified that he told some of his co-workers that he hurt himself on the job, but did not call them to testify; one of these coworkers being James Matte, who stated that he did not recall being told by plaintiff he had hurt his back or had had an accident.

Plaintiff himself admitted that he told untruths in connection with the accident.

I conclude that plaintiffs testimony has been discredited and further that it has not been corroborated sufficiently by the surrounding circumstances, and consequently his testimony, standing alone, fails to meet his burden of proof. I therefore opine that there should be judgment herein in favor of the defendants.

For the above reasons I respectfully dissent.