Barham v. Mathieu
| Decision Date | 17 April 1967 |
| Docket Number | No. 7011,7011 |
| Citation | 198 So.2d 145 |
| Parties | Ferris A. BARHAM, Plaintiff-Appellant, v. A. E. MATHIEU d/b/a Mathieu Well Service, et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
J. Louis Watkins, Jr., of Watkins & Watkins, Houma, for appellant.
Joseph L. Waitz, of O'Neal & Waitz, Houma, for appellees.
Before LANDRY, ELLIS and BAILES, JJ.
This is an appeal from the judgment of the trial court awarding plaintiff-appellant workmen's compensation benefits against defendants-appellees, A. E. Mathieu, d/b/a Mathieu Well Service, the employer, and Argonaut Insurance Company, the employer's insurer, and further awarding plaintiff interest, penalties and attorney's fees. The trial court awarded compensation at the maximum weekly rate of $35.00 from November 20, 1963, through March 11, 1964, and medical expenses in the amount of $802.35. On its finding that the defendants acted arbitrarily, capriciously and without probable cause by failing or refusing to pay plaintiff the workmen's compensation due him within 60 days after notice, the trial court condemned defendants to pay interest, penalties and $600 as plaintiff's attorney's fee.
The plaintiff alleges that on November 14, 1963, he was employed by defendant, A. E. Mathieu, d/b/a Mathieu Well Service, as a driller, and was working in such capacity when he sustained a severe injury to his back. He alleges he was injured when he lifted a 100 pound sack of drilling mud from a barge to the drilling platform; that he is totally and permanently disabled by the injury. Further, plaintiff alleged that defendants were duly notified of this accident; that compensation benefits were refused and that such refusal was arbitrary, capricious and without probable cause.
Defendants' answer is tantamount to a general denial of all the pertinent allegations of fact made by plaintiff, however, on trial of the case in the district court, the issues of fact were narrowed to a determination of whether the plaintiff sustained an injury, the nature of the injury, its duration, and whether defendants were guilty of such conduct as to make the infliction of penalties applicable.
The plaintiff contends (1) that the trial court erred in not finding that he was totally and permanently disabled within the contemplation of the Louisiana Workmen's Compensation law, and (2) that the trial court erred in decreeing the value of attorney's services rendered plaintiff to be the sum of $600, when in fact the value of said services was substantially in excess of this amount.
Although defendants have answered the appeal of the plaintiff, their position is that the trial court's determination of the duration of disability is correct and urge this court to affirm that finding. The defendants argue that the district court erred in awarding penalties and attorney fees, or alternatively, that the award should be reduced.
First, we will consider the question of injury, disability and duration. The plaintiff was treated by his family physician, Dr. Thomas Givens, who called Dr. Jules Dupont into the case for consultation. Dr. Givens is a general practitioner and Dr. Dupont is a specialist in internal medicine. Dr. Givens last saw plaintiff when he was released from the hospital in late December, 1963 and Dr . Dupont examined him the last time in the spring of 1964. In January, 1965, Dr. G. C. Battalora, Jr., examined the plaintiff at the request of defendants. After the trial was completed, the district judge appointed Dr. G. Gernon Brown, Jr., an orthopedist, to examine and report his finding to the court. The reason stated by the court for this appointment, ex proprio motu, was that the court found the medical testimony to be conflicting.
The essence of Dr. Givens' testimony is that he first saw the plaintiff about November 20, 1963, at which time he diagnosed plaintiff's condition as pneumonia and prescribed oral medication; that plaintiff returned to him on November 30, at which time he hospitalized him for about a week. X-ray examination of plaintiff showed he had congestion in the lungs. After being discharged, plaintiff continued to have pain, and on December 12 he was again hospitalized. At this time x-ray examination showed fractures of the lumbar and thoracic spine. Dr. Givens then called in Dr. Dupont for consultation. Dr. Givens testified that he was not certain how long the plaintiff had had these fractures but that they had not completely healed and that they could have been aggravated by the lifting of heavy objects. He testified that the last time he saw the plaintiff, for any condition referable to his back, was when he was discharged from the hospital. He further testified that he had no opinion as to when plaintiff should have gone back to work since such an opinion would be out of his field of medicine and that he would have referred plaintiff to an orthopedist for evaluation.
Dr. Jules Dupont was called by the plaintiff to testify. He stated that plaintiff's pain, which was originally diagnosed as pneumonia, was actually of orthopedic origin. After his examination of plaintiff he ordered traction for the plaintiff and had a heavy board placed under the mattress on his bed. He also had a corset fitted to the plaintiff's back for support. He testified that he advised plaintiff not to lift any heavy objects and not to return to hard manual labor. He found the plaintiff had previously fractured his back in several places. It was his opinion that the lifting of heavy sacks of mud aggravated the condition of the back. Dr. Dupont testified that he was not able to determine whether the plaintiff was physically able to perform oilfield work because he had not examined him, and additionally, he considered such an opinion to be outside of his specialty of medicine. He did state that the plaintiff was suffering from chronic pneumonia, or a lung condition called emphysema, and from the hundreds of cases of this type he has seen, this condition of the plaintiff is not going to improve.
Dr. George Battalora, Jr., an orthopedic surgeon, testified on behalf of the defendant. He testified that he first treated the plaintiff in June, 1963 and at that time the plaintiff was suffering from compression fractures in the lower dorsal and in the lumbar spine. He stated that when he examined the plaintiff in January, 1965, he found evidence of the same fractures discovered in 1963 and the x-rays showed the condition of the back relatively unchanged since June, 1963. He testified that he found no evidence of a new injury to the back and found no evidence of any residual from any injury. He testified that if the plaintiff had injured and reinjured his back in November, 1963, the condition had cleared when he examined him in 1965. While he stated that he could not advise the plaintiff to return to his normal oilfield duties, he stated that if the plaintiff had been performing them satisfactorily prior to November, 1963, he could see no reason why the plaintiff could not still perform satisfactorily. He cited the fact of the plaintiff's age, that he is suffering with obteoporosis, and that he has other physical problems as additional reasons why he would not advise the plaintiff to perform the manual labor of oilfield work. Dr. Battalora testified that lifting the heavy sacks of mud might have caused a back sprain and might have aggravated the condition of the plaintiff's back causing temporary pain and discomfort but further testified that it was his opinion that no permanent damage had been done to plaintiff's back by this lifting.
The court appointed Dr. G. Gernon Brown, an orthopedic surgeon practicing in New Orleans, to examine the plaintiff and report his findings to the court. Dr. Brown stated that he examined the plaintiff on February 24, 1966, and that he noted hypertrophic changes in the plaintiff's back and some degree of wedging of the dorsal vertebrae. He further stated that there appeared to be compression fractures of several vertebrae. He reported that there is evidence of advanced osteoporosis involving the dorsal, lumbar, and cervical spine as well as the pelvis and hips. But, he stated, this condition is not attributable to trauma but occurs with aging and represents a deficiency in the protein content of bone. He reported that the hypertrophic changes in the spine were degenerative changes of long standing...
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