Benoit v. Phillips Iron Works, Inc.
Decision Date | 30 June 1981 |
Docket Number | No. 8151,8151 |
Citation | 401 So.2d 557 |
Parties | Wilson BENOIT, Plaintiff-Appellant, v. PHILLIPS IRON WORKS, INC., et al., Defendants-Appellees. |
Court | Court of Appeal of Louisiana — District of US |
William G. Whatley, Baton Rouge, for plaintiff-appellant.
Allen, Gooch & Bourgeois, Arthur I. Robison, Lafayette, for defendants-appellees.
Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
In this workmen's compensation suit the plaintiff, Wilson Benoit, seeks benefits for total and permanent disability from the defendants, Phillips Iron Works, Inc., and its workman's compensation insurer, Hanover Insurance Company. Benoit has perfected this appeal from a decision of the trial court denying him benefits for total and permanent disability. We affirm.
The issues raised in this appeal are: (1) Did the trial court err in not ordering the plaintiff to undergo a medical examination and myelogram test under the court's supervision?; and (2) Did the trial court err in determining that the plaintiff was not totally and permanently disabled?
On March 23, 1979, while working for the defendant as a helper, the plaintiff began to experience a pain in the lower back. He finished work for that day, a Friday, and returned to work the next Monday, when he again complained of pain and was taken to be examined by Dr. Joseph Comeaux, a family practitioner. Doctor Comeaux diagnosed a lumbosacral sprain and treated the plaintiff for the following three weeks at which time he recommended that the plaintiff return to work. The plaintiff returned to work but was re-examined by Doctor Comeaux two weeks later, again complaining of pain in the lower back. Finding no objective basis for the plaintiff's complaints Doctor Comeaux referred the plaintiff to Dr. Harold J. Hebert, an orthopedic surgeon. Doctor Hebert admitted the plaintiff into a hospital in an attempt to ascertain the cause of the plaintiff's complaints, but subsequently released the plaintiff as being symptom free. The plaintiff was also examined by Drs. Meulman, LaFleur, Williams and Whitecloud, all orthopedic surgeons. All but Doctor Whitecloud found no physical findings to support the plaintiff's continuing complaints of pain. Doctor Whitecloud was of the opinion that the plaintiff had a disc problem and suggested a myelogram test be taken.
The plaintiff contends the trial court erred in not ordering a myelogram test to be taken because the medical evidence is in conflict. We disagree.
The trial court has the authority to order a workmen's compensation claimant to undergo a medical examination under La.R.S. 23:1123 which reads:
(Emphasis added).
In the instant case, neither the plaintiff nor the defendant requested, prior to trial, that an examination by a physician appointed by the court be ordered.
This court held in D'Aville v. Travelers Insurance Company, 295 So.2d 454 (La.App. 3rd Cir. 1974), that La.R.S. 23:1123 does not require the trial court to order an examination if there has been ample time prior to trial to request such an order, concluding:
(Emphasis added).
The plaintiff in the instant case did not request the trial court to appoint a physician to conduct the myelogram test...
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Brown v. Dan Kelly Warehouse, Inc.
...... Benoit v. Phillips Iron Works, Inc., 401 So.2d 557 (La.App. 3rd Cir.1981); ......