#### Jessie Mae SMITH v. PHOENIX ASSURANCE CO. OF NEW YORK.

No. 3794.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 2, 1970.

Rehearing Denied March 9, 1970.

*734Schroeder, Kuntz & Miranne, Michael O. Miranne, New Orleans, for plaintiff-appellant.

Montgomery, Barnett, Brown & Read, Wood Brown, III, New Orleans, for defendant-appellee.

Before REDMANN, LeSUEUR and SWIFT, JJ.

SWIFT, Judge.

Mrs. Jessie Mae Smith brought this suit for total disability benefits under the workmen’s compensation act, alleging that a work related accident had caused her to suffer a hernia. The lower court rendered judgment in favor of the defendant, the employer’s compensation insurer, and the plaintiff has appealed.

Plaintiff worked as a kitchen helper for Drago Batinich at Drago’s Seafood Restaurant in New Orleans. Mrs. Smith testified that on February 13, 1966, while carrying a pot of potatoes and attempting to open a rear door of the premises, the handle of the pot “jabbed my stomach” and caused a burning sensation.

There were no witnesses to the accident.

The plaintiff further testified that she reported the accident immediately to the chef, and either the bartender or the owner’s wife came at once and gave her aspirin. There was some question as to the identity of the chef, and he was not called by either party to testify at the trial. Both the bartender, a Mr. Cevitanovich and Mrs. Batinich denied receiving any notice and having any knowledge of the incident. A co-worker, Anna Thomas, testified that the plaintiff mentioned something about having trouble with her stomach because of an ulcer, but she never made any complaint of being hurt on the job. However, another fellow employee, Audrey Brown, recalled the plaintiff's telling her about the accident when she came on duty at 5:00 p. m. as Mrs. Smith was getting off. Mr. Batinich stated that the employee did not report any accident or injury at the time or during the two months she remained in his employ following the alleged accident.

Dr. Herman R. Cohen testified that on February 14, 1966, Mrs. Smith visited his office complaining of abdominal pain as a result of the alleged accident. An examination revealed an umbilical hernia which was confirmed by hospital tests on May 8, 1966, and repaired on September 27, 1966. Dr. Cohen had treated Mrs. Smith for various other complaints over the previous five or six years, and had not detected such hernia in April, 1965, her last visit before the alleged accident. He said the hernia could have been caused by the incident which the plaintiff related to him, but the doctor also acknowledged that it may have developed at some other time between her visits in April, 1965, and February 14, 1966. The only other medical witness who appeared at the trial did not examine the plaintiff until September, 1968, and expressed no opinion that shed any light on the cause of the hernia that had been repaired.

The trial judge in written reasons found that plaintiff had failed to give notice of the alleged accident and to carry the burden of proving her right to compensation.

Want of notice to the employer of the accident is not a defense or bar to a proceeding for workmen’s compensation unless the employer has been prejudiced thereby. LSA-R.S. 23:1294. No such prejudice was shown in this case. Therefore, the principal issue for determination is whether or not the plaintiff has proved she sustained an accident which caused her disabling condition while working for the defendant’s insured.

*735In a compensation case the plaintiff has the burden of proof, and while she does not have to prove causal connection between disability and employment to an absolute certainty, she must establish her claim with reasonable certainty by a preponderance of the evidence. Teekell v. Campbell Construction Company, La.App., 160 So.2d 447 (2nd Cir. 1964).

The decision in this case requires the determination of a factual issue which largely involves the credibility of plaintiff and the lay witnesses. The trial judge did not believe Mrs. Smith’s account of having reported the alleged accident to her employer and the others at the restaurant, and he obviously did not believe her testimony as to its occurrence. Under these circumstances there is substantial support for his conclusion that plaintiff failed to meet the burden of proof imposed on her by law. Certainly, manifest error is not shown.

Accordingly, the judgment is affirmed at appellant’s cost.

Affirmed.

REDMANN, Judge

(dissenting).

The questions on liability in this case are whether an accident occurred at plaintiff’s work, and, if so, whether it was the cause (or the disabling aggravation) of her umbilical hernia.

As the majority points out, the lack of a report to the employer is immaterial in the absence of a showing of detriment to the employer. Nevertheless, the two sentence opinion by the trial court reads:

> “The Court finds as a fact that the claimant did not report any accident to her employer.

> “Further, the plaintiff has not carried the burden of proof necessary to prove her claim to compensation.”

The second sentence states a conclusion of law (i.e. that the evidence was insufficient). The only factual conclusion from the trial court is lack of notice.

From this factual finding the majority here concludes the judge disbelieved plaintiff’s weak testimony on that immaterial point, and therefore disbelieved her on the material elements of her cause of action. The majority thus concludes the trial judge based his judgment on a rejection of the credibility of plaintiff.

First, even assuming this was the trial judge’s thinking, there remains the testimony of the treating physician that plaintiff gave him a history on February 14 of having hurt her abdomen with a pot the day before. This testimony has got to be accepted as proving that on the day after the alleged accident plaintiff in fact recited its alleged occurrence to her doctor. Her having done so does not prove she had such an accident, but it does mean (ignoring possibilities such as lunacy) either (1) she had had such an accident, or (2) she had by that time already decided to falsely claim she had had an accident, no doubt in order to defraud her employer or his insurer of workmen’s compensation.

But if plaintiff lied to her doctor the day after the accident, why would she not have lied that same day to her employer? Indeed, if she had been faking an accident to stick her employer for workmen’s compensation, and had lied to her doctor, is it not much more probable that she *did*report her fake accident to her employer? Yet the trial judge found as a fact that no such report was made.

The only theory under which she could have lied to her doctor yet said nothing to her employer, is that she thought notice to employer unnecessary. However, if she thought notice unnecessary, why would she think it necessary to claim that she had given notice?

Second, in my opinion the trial judge’s reasons for judgment do not suggest he considered all of plaintiff’s testimony unworthy of belief. If that was his view, *736and if that was his reason for reciting a finding of one immaterial fact against plaintiff, he could easily have said so. He could even have asserted flatly he disbelieved her. He was apparently not of such an opinion; or else he was unwilling to state it, and we should not state it.

In my opinion the trial judge ruled for defendant merely because he concluded, in his own words, “plaintiff has not carried the burden of proof.”

And, in my opinion, the trial judge erred in this conclusion of law. I believe — even though employers are in a most disadvantageous position in hernia cases — the sworn testimony of an employee that he suffered an accident while working alone is sufficient proof, as a matter of law, even where the trial court has simply held it insufficient; Gisevius v. Jackson Brewing Co., 152 So.2d 231 (La.App.1963), cert. denied, 244 La. 896, 154 So.2d 767. See also Hill v. J. B. Beaird Corp., 19 So.2d 295 (La.App.1944), cert. denied; Hayes v. Louisiana Irrigation & Mill Co., 168 So.2d 396 (La.App.1964), cert. denied 247 La. 251, 170 So.2d 509.

There is no testimony to conflict with plaintiff’s assertion the accident occurred. The most one might say is that the testimony of the employer, his wife and brother-in-law that plaintiff told them nothing of the accident *suggests*the accident did not occur.

But plaintiff, *earning $29 a week and having seven children*to help support, *spent $5*to see her doctor because of pain, explaining to the doctor, as shown by *his*record of that date, “she had been struck in the abdomen, while carrying a pot of potatoes, and came in complaining at the time. Had pain in the area of the umbilicus and noted a small lump at that time, in the area. This was on the 14th of February, 1966.”

It appears to me much more reasonable to conclude the accident did occur as plaintiff testified and told her doctor (and a fellow employee, and perhaps even her employer’s wife who remembered some complaint of “ulcers,” which plaintiff never had). The doctor testified such an accident could have caused the hernia he surgically repaired. For the disability she suffered plaintiff is entitled to workmen’s compensation.

The judgment appealed from should be reversed and compensation should be fixed and awarded. I therefore dissent.

REDMANN, J., is of the opinion the rehearing should be granted.