Burgess v. C.F. Bean Corp.

• Decision Date: 18 August 1999
• Docket Number: No. 98-CA-3072.,98-CA-3072.
• Citation: 743 So.2d 251
• Parties: Harry BURGESS v. C.F. BEAN CORPORATION.
• Court: Court of Appeal of Louisiana — District of US

743 So.2d 251

Harry BURGESS v. C.F. BEAN CORPORATION.

No. 98-CA-3072.

Court of Appeal of Louisiana, Fourth Circuit.

August 18, 1999.

Writ Denied November 24, 1999.

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Lawrence Blake Jones, David C. Whitmore, Scheuermann & Jones, New Orleans, LA, Counsel for Plaintiff/Appellee.

Alan K. Breaud, Breaud & Lemoine, Lafayette, LA, Counsel for Defendant/Appellant.

Court composed of Chief Judge ROBERT J. KLEES, Judge STEVEN R. PLOTKIN, Judge JAMES F. McKAY III.

PLOTKIN, Judge.

Defendant, C.F. Bean Corporation appeals from the trial court judgment finding it liable for the injuries sustained by Plaintiff, Harry Burgess. Plaintiff cross-appeals, arguing that the trial court awarded him inadequate damages.

FACTS:

Harry Burgess alleges that he suffered permanent disabling injuries while working for C.F. Bean Corporation (hereinafter, Bean). He claims that while unloading pipes, he was knocked off of a pile of pipes, permanently injuring his shoulder.

Mr. Burgess testified that he has been a maritime worker since he was 15 years old. He claims that he never suffered any injuries until the instant accident when he injured his shoulder. Prior to beginning his employment with Bean, he had to submit to a physical examination. His employment was conditioned on passing the exam, which he did. He began his employment with Bean at the end of September 1993. He was injured within three weeks of the commencement of his employment. He originally believed he was injured on September 13, 1993 but admits that he was not employed by Bean on that date.

He offered the following account of the accident. A truckload of plastic pipes arrived at the Bean yard after the workers had left for the day. Thus, he, Donald Derbes and J.M. Fail unloaded the pipes alone. Derbes was operating the crane that was lifting and moving the pipes. Between the crane and the growing pile of unloaded pipes, there were large storage containers. These containers obstructed Mr. Derbes view of where he was swinging the pipe. Mr. Burgess was standing on the pile of unloaded pipes, unhooking them when they arrived. He alleges that Mr. Fail distracted him, causing him to be hit by an approaching pipe and knocked off of the pile, landing on his left shoulder and side. He stated that there was no flagman because the unloading process was taking place after his crew had left for the day. He also stated that it was dark and the Bean yard has no artificial lighting. Furthermore, he stated that this type of unloading should never have been done by only three people. He said that he was in pain at the time the accident occurred, but he did not see a doctor or discontinue working. Within two months of the accident, the PROTEUS was ready and left for Raccoon Island. Mr. Burgess was working aboard the PROTEUS during this project.

Burgess testified that he is permanently injured and disabled, thus unable to return to his prior employment, or any other physical employment. He stated that he is in constant pain and must regularly ingest prescription painkillers to alleviate his pain. He is also suffering from depression due to his inability to work, but is getting better with the help of a psychiatrist.

Mr. Burgess admitted to purchasing a shrimping boat after leaving Bean. But, he alleges that he is only physically able to take the boat out sporadically and must employ someone to do the physical work on the boat. He claims that he has actually lost money shrimping.

J.M. Fail, who was Mr. Burgess's supervisor, testified that Mr. Burgess was a very hard worker — a "work horse." He stated that Mr. Burgess was hired to help "put the PROTEUS back together marrying it with the BOOSTER 19." He stated further that the specific title Mr. Burgess had while at Bean at the time he was injured was "leverman." A leverman operates the dredge and is responsible for the crew. Mr. Fail denies witnessing the accident. However, he did testify that on the night of the accident, Mr. Burgess told him that he was injured and how he was injured. He further stated that on the night of the accident, Mr. Burgess informed him he did not need to see a doctor and would resume his duties at Bean.

Mr. Donald Derbes testified that he was the crane operator at Bean at the time of plaintiffs injury. He was operating the crane that was moving the pipe that allegedly hit Mr. Burgess. He testified that a truckload of 50-foot plastic pipes arrived at the Bean shipyard. But, he further testified that he was unloading the pipe with Mr. Burgess and six to eight other people. He admitted that his vision was obstructed as to 10 feet of the 50-foot pipe by storage containers that were being used as offices. However, he denies ever swinging the pipe in such a manner that Mr. Burgess was hit by it and knocked off of the pile of pipes. In fact, he testified that Mr. Burgess was not directly involved in the pipe unloading, rather he was supervising the operation. He stated he was aware that Mr. Burgess had been injured at some point, because when he tapped him on the shoulder once, Mr. Burgess told him of his injury and pain.

Charlotte Burgess, the plaintiff's wife, testified regarding Mr. Burgess's injury. She stated that he is in constant pain and suffers from depression. She also testified that he did not see a doctor at the time of the accident because he is a strong and proud man. She testified that plaintiff is not able to work and rarely took the boat shrimping because the rigors of operating a shrimping boat were too much for him to handle.

The defendant presented the testimony of Billy Naquin. Mr. Naquin is a physical therapist who was consulted to determine Mr. Burgess's functional capacity. He stated that after testing Mr. Burgess, he determined that Mr. Burgess was not performing to his maximum capacity due to his own self-limiting behavior. As an example, he stated that Mr. Burgess was unable to walk .25 miles, but that if his only complaint is shoulder pain, the inability to walk was not physically connected. He also stated that Mr. Burgess's pain does not match his objective findings; he should not be experiencing the problems he is experiencing. However, on cross-examination, Mr. Naquin admitted that Mr. Burgess might be limiting his behavior because he is in pain.

Jennifer Palmer also testified for the defendant. She is an expert in vocational rehabilitation. She interviewed and tested the plaintiff to determine his post-injury employability. She reviewed the records of the physicians consulted in this matter. She concluded that based on Mr. Burgess's injury and work experience, he would be able to return to work as a dredge leverman or captain. She stated that he could also work as a consultant and had done so in the past. She testified to several jobs available at the time of trial to a man with Mr. Burgess's credentials. She stated that under the U.S. Department of Labor guidelines, the work that plaintiff performs is considered "light" and he should have no problem returning to that line of work. She stated that if hired as a leverman or captain, Mr. Burgess would not technically be required to do extraneous labor.

Dr. Warren, a neurologist, was consulted on July 8, 1994, by Mr. Burgess and testified by deposition. Dr. Warren testified that Mr. Burgess initially had pain in his left shoulder but did not complain of any numbness, tingling or weakness, the absence of which, signifies a lack of nerve damage. He testified that Burgess told him he developed neck and head pain shortly before the first visit; approximately nine months after the accident.

He testified further that his examination of Mr. Burgess's neck showed decreased motion due to pain. But, he testified that against resistance, Mr. Burgess's shoulder shrug and all other strength tests were normal. He stated that cervical spine x-rays he examined were normal. He opined that normal strength results signified a lack of nerve compression or dysfunction such as a pinched nerve in the neck. Thus, he determined the left shoulder pain was orthopedic. He further stated that with any nerve injury, the pain would be radiating and Mr. Burgess lacked radiating pain. Dr. Warren also testified that he has doubts whether there is any relationship between the accident in September 1993 and the pain Mr. Burgess experiences in his neck and shoulder. However, he stated he ordered further testing to rule out other neurological ailments. The results of the CT scan performed were normal.

Dr. Warren was then asked to review the results of electromyelogram (EMG) and nerve conduction velocity (NCV) tests. He said that the NCV was totally normal and that the EMG results were normal except that one of the thirty-two areas tested resulted in a one plus positive result. He stated that this was minimal; a minor abnormality. Dr. Warren was also told of the results of other diagnostic tests performed on Mr. Burgess. Specifically, the MRI by Dr. Gold which showed spondylitic changes and a bulging disk at C3-4, C5-6, and the cervical myelogram and post myelogram scans which showed no evidence of nerve root compression. Based on his findings and the results of the above tests performed by other doctors, Dr. Warren opined that Mr. Burgess has no neurological impairment. He believes Mr. Burgess's problem is basically degenerative disk disease. He sees no connection between the accident and the resulting neck and shoulder pain. However, on cross-examination, Dr. Warren stated that symptomatic arthritis can become symptomatic due to trauma.

Dr. Shobe, an orthopedic surgeon, first saw Mr. Burgess on August 30, 1994. He stated that Mr. Burgess complained of pain in his cervical spine, left shoulder and head. Mr. Burgess also complained of weakness in his left shoulder but not of feeling in his fingers. He stated the X-rays of the cervical spine and shoulder were normal. He said the results of the arthrogram were normal.

He testified that...