Anders v. Employers Liability Assur. Corp.

• Decision Date: 10 June 1948
• Docket Number: No. 7594,7594
• Citation: 50 So.2d 87
• Court: Court of Appeal of Louisiana — District of US
• Parties: ANDERS v. EMPLOYERS LIABILITY ASSUR. CORP., Limited. . Jan, 5, 1951. Gist, Thornton & Murchison, Alexandria, for appellant. K. Hundley, Alexandria, for appellee. HARDY, Judge. This is a compensation suit in which plaintiff is alleged to have suffered total and permanent disability for which he claims compensation from defendant as the insurer of his employer. After trial there was judgment in favor of plaintiff awarding compensation at the rate of $20.00 per week during disability, not to exceed 400 weeks, less credit for payment theretofore made. The judgment further provided for payment of $36.00 representing certain medical expenses paid by plaintiff; fixed the fees of expert witnesses and recognized the fee of attorney for plaintiff. From this judgment defendant has appealed. Plaintiff, a skilled carpenter who on occasions worked as a construction foreman or superintendent, was injured on

Page 87

50 So.2d 87

ANDERS v. EMPLOYERS LIABILITY ASSUR. CORP., Limited.

No. 7594.

Court of Appeal of Louisiana, Second Circuit.

Jan, 5, 1951.

Gist, Thornton & Murchison, Alexandria, for appellant.

K. Hundley, Alexandria, for appellee.

HARDY, Judge.

This is a compensation suit in which plaintiff is alleged to have suffered total and permanent disability for which he claims compensation from defendant as the insurer of his employer. After trial there was judgment in favor of plaintiff awarding compensation at the rate of $20.00 per week during disability, not to exceed 400 weeks, less credit for payment theretofore made. The judgment further provided for payment of $36.00 representing certain medical expenses paid by plaintiff; fixed the fees of expert witnesses and recognized the fee of attorney for plaintiff. From this judgment defendant has appealed.

Plaintiff, a skilled carpenter who on occasions worked as a construction foreman or superintendent, was injured on June 10, 1948, when he fell from a sand box, where he was engaged in working, to the ground some twenty-four feet below. As the result of this fall plaintiff sustained, in addition to numerous bruises and contusions, a compressed fracture of the ninth dorsal vertebra and, as was discovered some time after the accident, a chip fracture of the second lumbar vertebra. Additionally plaintiff suffered painful injuries, but of a temporary nature, to his kidneys. Following the accident plaintiff was immediately hospitalized, X-rayed and treated; he remained in the hospital for approximately thirty days during which time unquestionably he suffered severe pain; he was placed on what is referred to as a Bradford frame, which appears to be a stretcher that is depressed at each end and raised in the middle. Frequent opiates and sedatives were administered for the relief of pain, the period of ministration ranging from two to six hours. Plaintiff was placed in a hip to shoulder cast and taken to his home approximately thirty days after the accident, where it was found necessary the following day, by reason of increased pain and suffering, to return him to the hospital for a brief period. The cast was removed after some three months and thereafter a back brace was worn for a considerable period of time. The testimony of the employer's physician does not fix any date of actual discharge of the patient, but in his own words: '* * * as I remember I told him he was able to go back to work and at least try it to see what he could do.'

Compensation payments were discontinued by the insurer on or about May 5, 1949. Plaintiff admits that since this time he has made an effort to work and has undertaken some small jobs which appear to have been provided by relatives in the nature of superintending or overseeing construction. However, plaintiff contends that he has never been free from pain since the accident and that his intermittent efforts at working have been attended with distrees, discomfort and inconvenience.

The defense is primarily based upon the opinion of Dr. McBride, who was the attending physician, to the effect that plaintiff is recovered from his injury and that his disability, if any, at the time of trial did not exceed 10%. Additionally, the defense of lack of cooperation on the part of plaintiff is urged by defendant, and, finally, it is contended that even in the event plaintiff continues to suffer some pain and disability he is not entitled to an award based upon permanent and total disability. We proceed to a discussion of these several defenses in the order named.

It is true that Dr. McBride, an experienced and thoroughly qualified physician, expressed the opinion from a medical standpoint that plaintiff had almost entirely recovered from his injury subject only to a small percentage of disability. However, quite another opinion was expressed by Dr. Murrell, plaintiff's family physician. In view of this conflict it is necessary to turn to the lay evidence in the hope of resolving the question. We find nothing in the testimony of plaintiff himself which is incredible, nor which indicates that he is distorting or exaggerating his symptoms and his complaints of pain. We think his effort to work, in itself, is evidence of his good faith, Price v. Blythe Bros., La.App., 46 So.2d 159. While it is true that Dr. Murrell's opinion is based to some extent upon plaintiff's subjective symptoms of pain we are persuaded that these symptoms are genuine. Zealous counsel for the defendant is somewhat critical of the nature of the testimony introduced by plaintiff in substantiation of his contention on the ground that the witnesses were the wife and close relatives of plaintiff. While it is true that courts necessarily take relationship into consideration in evaluating testimony of this...