Chism v. Kaiser Aluminum & Chemical Corp.

• Decision Date: 17 May 1976
• Docket Number: No. 57192,57192
• Citation: 332 So.2d 784
• Parties: Luther CHISM, Jr. v. KAISER ALUMINUM & CHEMICAL CORPORATION.
• Court: Louisiana Supreme Court

Page 784

332 So.2d 784

Luther CHISM, Jr. v. KAISER ALUMINUM & CHEMICAL CORPORATION.

No. 57192.

Supreme Court of Louisiana.

May 17, 1976.

Rehearing Denied June 18, 1976.

Orlando G. Bendana, New Orleans, for plaintiff-applicant.

Paul B. Deal, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant-respondent.

SANDERS, Chief Justice.

Plaintiff, Luther Chism, Jr., appealed from a judgment dismissing his suit for workmen's compensation benefits, and the Court of Appeal affirmed. 320 So.2d 566 (4th Cir., 1975). We granted writs to review the judgment. La., 323 So.2d 469 (1975).

In February of 1974, plaintiff was surgically treated for a herniated disc by removal of the disc and fusion of the lower spine. Plaintiff alleges that his condition was brought about by on-the-job accidents on June 8 and October 12, 1973, and February 7, 1974, which aggravated or exacerbated an underlying back condition. The employer, Kaiser Aluminum, denies any occupational accident occurred. The issue presented for our review is whether or not plaintiff's disability was caused by a work related accident under LSA-R.S. 23:1031, which provides:

'If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.

The plaintiff has the burden of proving the causal relation by a preponderance of the evidence. The evidence, as a whole, must be sufficient to establish that it is more probable than not an occupational accident triggered the disability. Johnson v. Travelers Insurance Co., La., 284 So.2d 888 (1973); Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971).

Plaintiff testified that he had worked for Kaiser Aluminum since 1968, doing heavy manual labor which involved stooping and lifting heavy weights. He stepped in a hole on June 8, 1973, while on the job and sought medical treatment for back pain at the company first aid station. He received a course of heat treatments through June 20. In October, he suffered pain while at work, sought treatment at the first aid station, and then consulted his private physician.

The following February, while on the job, he again experienced pain, sought treatment from the first aid station, and was referred to the company physician. He also consulted his private physician. After several days of going to work and reporting to the first aid station, the pain became so severe that he was hospitalized on February 10. Surgery ensued.

Kaiser's records reflect the June accident and the heat treatments at the first aid station through June 20. There is no mention of the other accidents; there is, however, an entry on November 1, 1973, to the effect that he had missed nineteen days of work due to kidney and back trouble; he was hospitalized for six days and could return to light duty for the following ten days as recommended by his private physician. Other entries show that heat treatments were given at defendant's clinic throughout November and that Dr. Irving Redler would see plaintiff on November 14 and 26. Further, defendant's records show that, on February 7, 1974, plaintiff complained of increased pain in his back, requested and was refused light duty, and a heat treatment was administered. He again complained of pain and was sent to defendant's physician on February 8. Dr. Faust's report to the defendant diagnosed no new or recurrence of old injury, but a possible mild muscle irritation; he recommended limited work for three days.

At defendant's request, Dr. Redler examined plaintiff on November 14, 1973. Plaintiff told him that he began to suffer severe pains across the lower back on October 16; that the pain increased to the point that he was unable to walk and was hospitalized for six days; that he had since returned to limited duty but continued to have back pain; he improved to the point that he could walk and was being treated at the first aid center with heat applications on a daily basis. An X-ray examination showed imcomplete sacralization of the fifth lumbar vertebra, developmental in origin, which, compared to X-ray of December, 1970, showed no change in appearance. Dr. Redler stated that the disability was minimal and should be resolved within ten days with the therapy being administered. He further reported that, when he saw plaintiff on November 29, plaintiff complained that the pain had increased. Dr. Redler's examination at that time showed no objective signs of disability and stated that residual disability was slight and plaintiff could return to regular work.

Dr. Charles W. Krieger first saw plaintiff on February 12, 1974, and plaintiff told him 'that he received a back strain in 1969 while lifting equipment on the job. He subsequently had intermittent episodes of low back pain, which have gotten progressively worse in the past year.' After examination and a myelogram, Dr. Krieger diagnosed a herniated disc, leading to the surgical back fusion. Dr. Krieger's testimony was crucial regarding plaintiff's condition and its relationship to the alleged accidents.

Dr. Krieger's...