Berry v. Livingston Roofing Co., 81-C-0506

CourtSupreme Court of Louisiana
Citation403 So.2d 1247
Docket NumberNo. 81-C-0506,81-C-0506
PartiesJoe BERRY v. LIVINGSTON ROOFING COMPANY, et al.
Decision Date08 September 1981

Joseph A. Gladney, Joseph A. Gladney & Associates, Baton Rouge, for plaintiff-applicant.

Daniel R. Atkinson, Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendants-respondents.

DENNIS, Justice.

The issue in this worker's compensation suit is whether the plaintiff sufficiently established a causal connection between his work-accident and his subsequent disability. Both lower courts concluded that he had not. Because the credibility determinations made below are not clearly wrong, we affirm.

On January 24, 1977, plaintiff, a twenty-seven year old roofer, was unloading his employer's truck when he lost his balance and fell from the truck bed to the pavement below. It is uncontested that plaintiff suffered injuries to two teeth, fractured both wrists, and received some facial lacerations. He received compensation benefits for those injuries through May, 1977 and suffers no residual disability from them.

On May 13, 1977, Dr. G. Gernon Brown, an orthopedist, took x-rays of plaintiff's lower back and found that plaintiff had spondylolisthesis, a condition characterized by slight forward displacement of the last lumbar vertebra. According to Dr. Brown, this condition probably developed in plaintiff's childhood and was definitely not caused by any recent trauma. Other than the x-rays, no objective clinical evidence of back trouble was observed. Dr. Brown testified that persons with spondylolisthesis should not engage in heavy manual labor because of their susceptibility to back injury and that, in his opinion, plaintiff was medically disabled from performing such work both before and after the accident.

Aggravation of a pre-existing physical deficiency is compensable, however. E. g., Allor v. Belden Corp., 393 So.2d 1233 (La.1981); Parks v. Ins. Co. of North America, 340 So.2d 276 (La.1976). Therefore, the question presented is whether plaintiff established that the accident caused his pre-existing condition to become symptomatic or aggravated it in some way.

A presumption of causal connection between the accident and the ensuing disability is available to ease the injured worker's burden of proof when he is able to show that before the accident he was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence establishes a reasonable possibility of such a connection. Lucas v. Ins. Co. of North America, 342 So.2d 591, 596 (La.1977). See, e. g., Allor v. Belden, supra; Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978). The record does not indicate that plaintiff had experienced any back problems prior to the accident. He had worked for the defendant about three years with only two minor injuries, neither relating to his back. Dr. Brown testified that the plaintiff's fall from the truck was capable of causing the spondylolisthesis to become symptomatic. In his opinion, it would be medically reasonable to find such an accident the precipitating cause of the symptoms if these symptoms appeared within a few days following the accident, but not if several months passed without complaint.

The first undisputed complaint of back problems to a physician by the plaintiff was made to Dr. Brown on May 13, 1977, three and one-half months after the accident. Both lower courts were unconvinced by plaintiff's evidence of earlier complaints. Although the trial judge was reluctant to brand any witness a liar, he clearly found that the more reliable and credible testimony had been presented by the defendant. After a careful review of the record, we do not find these determinations clearly wrong.

Plaintiff testified that he first noticed pain in his lower back two or three days after the accident. He surmised that until then acute pain of his other injuries masked his back problems. Plaintiff testified that since that time he has been constantly bothered by his back. His complaints of back pain following the accident were corroborated by his mother, niece, brother, sister, and two close family...

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