Anderson v. Tudor Const. Co.
| Decision Date | 20 August 1973 |
| Docket Number | No. 4250,4250 |
| Citation | 281 So.2d 817 |
| Parties | Leon ANDERSON, Plaintiff-Appellee, v. TUDOR CONSTRUCTION COMPANY and Travelers Insurance Company, Defendants- Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Holt & Woodley, by E. E. Woodley, Lake Charles, for defendant-appellant.
Drewett & Jacques by Robert T. Jacques, Jr., Lake Charles, for plaintiff-appellee.
Before HOOD, CULPEPPER and MILLER, JJ.
This is a workmen's compensation suit instituted by Leon Anderson against Tudor Construction Company and its insurer, Travelers Insurance Company. Defendants answered and filed a reconventional demand, alleging that they had overpaid the compensation due plaintiff, and demanding judgment against plaintiff for the amount of that overpayment. Judgment was rendered by the trial court awarding plaintiff weekly compensation benefits from July 28, 1971, until February 18, 1972, subject to a credit for all amounts previously paid, and rejecting defendants' reconventional demands. Defendants have appealed.
The issues presented are whether plaintiff received compensation benefits, or wages in lieu of compensation, from the date of the accident, July 28, 1971, until August 20, 1971, and whether the weekly compensation benefits which defendants paid to plaintiff from September 10, 1971, to February 18, 1972, were actually not owed, and thus were an overpayment of such benefits.
Anderson sustained an injury consisting of a fracture of the middle finger of his right hand, as the result of an accident which occurred on July 28, 1971, while he was working as a laborer for Tudor Construction Company. He received medical treatment for that injury from the date of the accident until October 18, 1971, and he was examined by another doctor on February 16, 1972. Defendants paid compensation benefits to plaintiff at the rate of $49.00 per week from August 20, 1971, until February 18, 1972.
Defendants contend that plaintiff recovered from his injury and was able to return to work by September 10, 1971. They claim that they were not aware of the fact that he had recovered until long after that date, because of a delay in sending a medical report to them, and that they paid compensation benefits to plaintiff from the above mentioned date until February 18, 1972, although no compensation was due for that period. They have reconvened to recover that alleged overpayment from plaintiff.
The burden of proof rests upon defendants, the employer and its insurer, to establish their claim for reimbursement under the reconventional demand. Chance v. T. J. Moss Tie Co., 31 So.2d 19 (La.App., 2 Cir. 1947).
Dr. Charles M. Anderson treated plaintiff from the date of the accident until August 6, 1971. The treatment which he administered included the application of a splint and the removal of the fingernail from the injured finger. The doctor felt that the injury was disabling, and that plaintiff would continue to be disabled for a period of from six to eight weeks after his formal report was submitted on September 1, 1971.
Dr. William Akins treated plaintiff from August 10 until October 18, 1971. A short arm cast was applied to plaintiff's right hand and arm, with an aluminum Bowler splint applied to the finger. The cast was removed on August 23, 1971, and the doctor reported that at that time 'the nail had begun to re-grow satisfactorily.' Although he informed plaintiff on September 10 that 'from a medical standpoint' he could return to work, his report indicates that plaintiff's fingernail had not re-grown by that time, and that plaintiff was still complaining of pain. When he last examined plaintiff on October 18, 1971, he found that the nail 'had re-grown completely with minimal deformity,' that the bone fragments had united, and that no further treatment was indicated. He also reported, however, that Anderson was still complaining of 'pain along the radial aspect of his PIP joint of the long finger of the right hand.' He discharged plaintiff on that date, and although he may have meant to say that plaintiff was no longer disabled, we find no statement in the doctor's report to the effect that plaintiff could return to work or that he could perform manual labor. He acknowledged that plaintiff complained of a specific pain in the injured finger, but he expressed no opinion as to whether plaintiff's complaints of pain were justified, and if so whether the pain...
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