Andrus v. Great Am. Ins. Co.

• Decision Date: 18 February 1964
• Docket Number: No. 1063,1063
• Citation: 161 So.2d 109
• Parties: Merdic ANDRUS, Plaintiff-Appellee-Appellant, v. GREAT AMERICAN INSURANCE COMPANY, Defendant-Appellant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 109

161 So.2d 109

Merdic ANDRUS, Plaintiff-Appellee-Appellant, v. GREAT AMERICAN INSURANCE COMPANY, Defendant-Appellant-Appellee.

No. 1063.

Court of Appeal of Louisiana, Third Circuit.

Feb. 18, 1964.

Rehearings Denied March 11, 1964.

Writ Refused May 4, 1964.

Tate & Tate, Mamou, Paul C. Tate, Mamou, of counsel, for plaintiff-appellant.

Lewis & Lewis, by Seth Lewis, Opelousas, for defendant-appellee.

Before TATE, SAVOY and HOOD, JJ.

TATE, Judge.

This is a suit for workmen's compensation benefits. Made defendant is the employer's compensation insurer. The trial court awarded judgment for total and permanent disability.

Both the defendant and the claimant appeal--the former from the judgment in favor of the plaintiff, and the latter from the failure of the trial court to additionally award penalties for arbitrary non-payment of workmen's compensation.

The claimant, a common laborer, was injured when the wheel of a heavy cement truck partly ran over his right foot as he knelt at work. Although the plaintiff sustained no fracture from the crushing-type accident, he did sustain ligamentous tears and soft tissue injuries within the foot, which caused swelling and limitation of motion.

The plaintiff's foot was injured on July 26, 1961. He remained under treatment by his local physician until December of 1961, when he was released as still disabled. In September and October he was examined by two orthopedists, was recommended physiotherapy and an arch support in order to alleviate the condition.

The medical evidence indicates that, had this physiotherapy and an arch support been supplied in September or October of 1961, within two months or so of the original injury, then the plaintiff's disability could have been cured within six or eight months. However, the plaintiff did not obtain this physiotherapy at the time. (As will be seen, the defendant insurer did not tender this medical treatment to him until after the present suit was filed in April of 1962.)

As a consequence, at the time of trial a preponderance of the medical evidence, as corroborated by the lay testimony, is to the effect that the plaintiff is indefinitely disabled from performing heavy manual labor or standing on his feet for sustained periods of time, such as was required by his employment. Three orthopedists and a general practitioner found the plaintiff to be disabled on each of the several occasions each of them examined or treated the patient over the two years elapsing between the accident and the trial. Against this, is the testimony of two orthopedists, who examined the claimant once for purposes of litigation, and who opined that the claimant could return to common labor.

The claimant sustains considerable pain upon weight-bearing. The cause of this disability is a fibrosis (an internal scarring of the muscles, tissues, and ligaments) and a contracture of the soft tissue within the injured foot. The disability is now indefinite in duration. It will probably yield to treatment in the course of time, but it may never be completely cured.

As we understand the appellant's position, the chief contention made is that the appellant should not be responsible for the prolongation of the disability which was caused by the failure of the claimant to receive adequate medical treatment at the outset of the disability, immediately following the accident.

As the trial court stated, 'The fact is that plaintiff did not receive proper medical treatment and that Great American did not tender the physical therapy recommended by the treating physicians. Great American has not contended that plaintiff has refused to cooperate, or has refused to accept treatment, * * *'. Tr. 117--118.

Following termination of compensation payments in January of 1962, the plaintiff retained a lawyer to represent him in the compensation claim and filed the present suit in April.

The plaintiff testified, without contradiction in the record (although the defendant's failure and refusal to furnish medical care was specifically pleaded by the amended petition, Tr. 18), that he had requested his attending physician and the defendant's adjuster, prior to termination of compensation, that he be afforded the $300 worth of physiotherapy treatments recommended in September 1961, but that nevertheless such treatments were refused him. On the recommendation of his attending physician, the claimant had then gone to Charity Hospital in New Orleans, but physiotherapy had also been refused him there because his was an 'insurance case'.

Actually, defendant's formal answer does not deny that such physiotherapy was refused the plaintiff, the defendant's position rather being that physiotherapy was unnecessary according to competent medical advice upon which the defendant relied. Tr. 24.

Fundamentally, as the trial court held, the prolongation and greater disability resulting from the lack of medical treatment of the relatively minor original injury, is due to the defendant's violation of its affirmative duty under the compensation act to provide reasonable medical services needed by an injured employee:

LSA-R.S. 23:1203 provides, 'The employer Shall in every case coming under this Chapter (compensation act) furnish reasonable medical, surgical and hospital services and medicines or any non-medical treatment recognized by the laws of this state as legal not to exceed twenty-five hundred dollars in value, unless the employee refuses to allow them to be furnished by the employer.' (Italics ours.) (To encourage the employer to comply with this statutory duty, it is further provided that medical payments made or medical services furnished by the employer do not constitute an admission of liability for workmen's compensation benefits. LSA-R.S. 23:1204.)

The defendant-insurer, which failed to tender the injured employee medical treatment during the early stages of the disability when it was needed and when it might have ended the disability sooner, cannot later contend that it should not be liable for the more prolonged disability resulting from the claimant's failure to receive such treatment. Perhaps, upon the employer's default in providing medical services needed, the injured workingman may possibly have...