Barry v. Western Elec. Co., Inc.

• Decision Date: 26 February 1986
• Docket Number: No. 17527-CA,17527-CA
• Citation: 485 So.2d 83
• Parties: Mary BARRY, Plaintiff-Appellant, v. WESTERN ELECTRIC COMPANY, INC., Defendant-Appellee. 485 So.2d 83
• Court: Court of Appeal of Louisiana — District of US

Page 83

485 So.2d 83

Mary BARRY, Plaintiff-Appellant, v.WESTERN ELECTRIC COMPANY, INC., Defendant-Appellee.

No. 17527-CA.

485 So.2d 83

Court of Appeal of Louisiana Second Circuit.

Feb. 26, 1986.

Baggett, McCall & Ranier by Robert C. McCall, Lake Charles, for plaintiff-appellant.

Tucker, Jeter & Jackson by James C. McMichael, Jr., Shreveport, for defendant-appellee.

Before HALL, JASPER E. JONES and SEXTON, JJ.

HALL, Chief Judge.

In this worker's compensation action against defendant, Western Electric Company, Inc., now AT & T Consumer Products, a Division of AT & T Technologies, Inc., plaintiff, Mary Barry, sought benefits for an alleged permanent and total disability as a result of a work-related accident.After trial, the trial court awarded plaintiff benefits in the amount of $8,800.00 under the scheduled loss provisions, with credit for compensation previously paid, together with statutory penalties in the amount of $497.38, and reasonable attorney's fees in the amount of $1,500.00.Plaintiff appealed, and now contends she is entitled to benefits for permanent partial disability.For the following reasons, we amend the judgment of the trial court to increase the amount of attorney's fees and, as amended, affirm.

ASSIGNMENTS OF ERROR

On appeal, plaintiff-appellant asserts the following assignments of error:

1.The trial court erred in finding that plaintiff could return to her former job, specifically in giving greater weight to the "no opinion" of the treating physician rather than to the positive finding of an examining orthopedist that a return to work would lead to disabling pain;

2.The trial court erred in refusing to award payment for chiropractic treatment expenses; and 3.The trial court erred in limiting the award of attorney's fees to $1,500.00 in light of the complex nature of the case.

FACTS

Plaintiff was employed as a bench worker at the defendant's plant in Shreveport, Louisiana.Plaintiff's job was assembling coils on an assembly line and required plaintiff to complete six different work stations or stages of assembly.The position required plaintiff to solder and pull a lever among other tasks.The coils were contained in a pan and the estimates of the weight of the pan at trial ranged from 7 1/2 to 20 pounds.On March 3, 1980, plaintiff slipped on a piece part and fell, striking her back and neck.She immediately sought medical attention at the plant and then returned to work.Plaintiff had complaints of pain in her upper extremities and continued to work and seek medical treatment for several weeks until she was hospitalized for several days and placed in traction.After plaintiff was discharged, plaintiff returned to work on a restricted schedule.Plaintiff continued to have complaints of pain and she was hospitalized again for tests in June, 1980.Her condition was eventually diagnosed as thoracic outlet syndrome and plaintiff underwent surgery for this condition in October, 1980.

Plaintiff received worker's compensation benefits for the following time periods: March 21, 1980 to April 21, 1980 and April 25, 1980 to July 15, 1980.Plaintiff was cleared to return to work on July 15, 1980 by the company physician and benefits were terminated by defendant as of that date despite plaintiff's assertions that her treating physician had not cleared her to return to work.When plaintiff refused to return to work until released by her treating physician, her employment was terminated.

Plaintiff instituted this action for worker's compensation benefits, statutory penalties, and attorney's fees on September 11, 1980, alleging that she was permanently and totally disabled as a result of the work related accident.

At the trial on the merits, numerous physicians and lay witnesses testified regarding the injury to and medical treatment of plaintiff, which testimony is summarized as follows.

Plaintiff, Mary Barry, testified that she was employed as a bench worker assembling coils on an assembly line at the defendant's plant.The position entailed six different work stations or stages of assembly with the worker being seated on a chair, working on a table.Plaintiff testified that she was required to pick up and move a pan of approximately 100-200 loose coils through the various stages.Plaintiff estimated that the pan weighed approximately fifteen to twenty pounds and that on an average day she worked with 400 to 700 coils.Plaintiff testified that the work required her to bend her head over and to extend her arms away from her body.Plaintiff testified that on the date of the accident, she stepped on a part on the floor and slipped.Plaintiff tried to regain her balance by grabbing at things for support but was unable to break her fall.In falling, plaintiff stated she hit the upper part of her back and lower neck.Plaintiff sought medical treatment approximately ten minutes after the fall at the plant's medical facilities.The company physician, Dr. Van Hook, applied an ice pack on plaintiff's neck and plaintiff then returned to work.Plaintiff stated that her shoulder hurt and it felt as if something had been knocked out of place.Plaintiff continued to work for three weeks following the accident and continued to receive medical treatment at the plant.

Plaintiff then consulted her family doctor and was put in the hospital for 3 to 4 days for traction.Plaintiff later returned to work on a restricted half-day schedule for several weeks.Plaintiff stated that at that time her hands were getting numb and she could not hold them up without support.Plaintiff was referred to Dr. Faludi who admitted her into the hospital in June, 1980 for tests and a myelogram.While in the hospital, plaintiff was apparently referred to Dr. Hernandez by Dr. Faludi.Dr. Faludi released plaintiff to return to work on July 1, 1980.However, plaintiff was advised by her physician, Dr. Hernandez, to wait before returning to work after her release from the hospital.Plaintiff testified that she kept the defendant fully notified of her condition.On July 15, 1980, plaintiff was asked to report at the plant and meet with Dr. Van Hook.Dr. Van Hook told plaintiff to return to work although plaintiff insisted she would not as she had not been released to do so by her own physician.

Plaintiff testified she continued to have pain in her shoulders and arms until her condition was eventually diagnosed as thoracic outlet syndrome.In October, 1980, plaintiff was again hospitalized and underwent surgery for thoracic outlet syndrome.Plaintiff stated that the surgery helped her condition but did not fully clear it up.Before and after the surgery, plaintiff was able to do some part-time secretarial work.

On June 19, 1981, plaintiff was involved in an automobile accident but testified that it only made her feel sore and the problems caused by the accident seemed to quickly resolve themselves.Plaintiff testified that she had not been completely pain free following the work-related accident although she did have periods of feeling better.Plaintiff testified that as she was not getting better, she eventually consulted with a chiropractor.Plaintiff painted as a hobby and testified she had begun to enjoy some commercial success as an artist.Plaintiff testified she was doing oil paintings before the accident but found it difficult to do so afterwards as it required her to extend her arms.Plaintiff now does "egg painting" using egg tempra paint.Plaintiff testified her hands were very shaky and hard to hold still and that she cannot sit for extended lengths of time and paint.Plaintiff stated that she did not feel that she could return to the duties of her former employment.

Roger Jones, a co-worker of plaintiff's, testified that he witnessed the plaintiff's accident.Jones testified that plaintiff was not able to fully return to work following the accident and that plaintiff complained of pain.Jones testified that plaintiff's job required her to work with her arms extended and to look down quite a bit as well as transporting the pans with coils.Jones estimated that the pans weighed approximately fifteen to twenty pounds.

Bruno Barry, plaintiff's husband, testified that the accident had restricted plaintiff's activities and affected plaintiff's ability to paint.Barry stated that he had been doing most of the household chores as plaintiff could not lift anything.Barry testified that plaintiff had improved before the automobile accident but he did not think she was pain free at that time.Barry stated that the automobile accident did aggravate the plaintiff's condition for some period of time.

Dr. Victor Hernandez, a general, thoracic and vascular surgeon, testified on behalf of the plaintiff.Hernandez testified he first saw plaintiff in June, 1980 in the hospital as a consultation with Dr. Faludi.Plaintiff was complaining of pain in both sides of the posterior aspect of the neck with pain radiating into both shoulders and arms.Hernandez conducted a physical examination and stated the physical findings confirmed the presence of pain.Hernandez's initial impression at that time was possible severe musculoligamentous strain of the cervical spine with the possibility of thoracic outlet syndrome.While in the hospital, plaintiff had a cervical myelogram which ruled out the possibility of root involvement at the level of the cervical spine.Hernandez stated that after this, he strongly suspected that most of the problem was thoracic outlet syndrome.Hernandez explained that the syndrome is essentially the compression of three types of anatomical structures between the first rib and clavicle near the side.The symptoms vary depending upon which structure is compressed.Hernandez's diagnosis when plaintiff was discharged from the hospital was severe muscular ligamentous strain of the cervical spine with the possibility of the beginning of thoracic outlet syndrome.Hernandez stated that most of the patients start...