Cloud v. National Sur. Corp.

• Decision Date: 24 June 1964
• Docket Number: No. 1186,1186
• Citation: 166 So.2d 31
• Parties: Hardy CLOUD, Plaintiff-Appellant, v. NATIONAL SURETY CORPORATION, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 31

166 So.2d 31

Hardy CLOUD, Plaintiff-Appellant, v. NATIONAL SURETY CORPORATION, Defendant-Appellee.

No. 1186.

Court of Appeal of Louisiana, Third Circuit.

June 24, 1964.

John P. Navarre, Oakdale, for plaintiff-appellant.

Gold, Hall & Skye, by Leo Gold, Alexandria, for defendant-appellee.

Before TATE, SAVOY, and HOOD, JJ.

TATE, Judge.

By the present proceedings, the defendant insurer seeks to reopen and modify an earlier award of weekly workmen's compensation. The defendant contends that the disability of the employee has diminished and ceased since the earlier judgment. The plaintiff appeals from judgment holding that his disability has ceased from the work-accident, thus terminating further compensation payments.

The present is a sequel to an earlier appeal in the same suit. 138 So.2d 630. In the judgment on the earlier appeal, we held that the plaintiff was entitled to workmen's compensation during disability for temporary total disability arising out of a lumbosacral sprain sustained at work on January 21, 1960.

The present modification proceedings were instituted under the provisions of LSA-R.S. 23:1331, which pertinently provides: '* * * At any time six months after the rendition of a judgment of compensation, a judge of the trial court that rendered the judgment shall review the same upon the application of either party for a modification thereof, on the grounds that the incapacity of the employee has been subsequently diminished or increased, * * *.' A defendant employer or insurer instituting such modification proceedings has the burden of proving that the employee's disability has diminished or ceased and that the employee is no longer disabled from performing his occupational duties by reason of a work-caused injury. Belsome v. Southern Stevedoring, Inc., 239 La. 413, 118 So.2d 458; Holmes v. New Amsterdam Cas. Co., La.App. 1 Cir., 128 So.2d 269; Fee v. Calcasieu Paper Co., La.App. 1 Cir., 112 So.2d 439.

The trial court found that the defendant insurer had sustained its burden of proving a cessation of work-related disability. We find no error in its conclusion.

In the earlier proceeding, we affirmed the trial court's finding of residual disability as of the trial of January, 1961, resulting from a lumbosacral sprain sustained at work a year earlier. This finding was primarily based upon the testimony of Drs. Schneider and Hatchette, orthopedists, and of Dr. Dupre, general practitioner. 138 So.2d 630 at 634--635. The orthopedists then estimated recovery in several months, while the general practitioner felt that the disability was only temporary.

In the present modification proceedings to reopen the compensation award, both of these orthopedists testified unequivocably that the claimant had now completely recovered from the lumbosacral sprain, when they examined the claimant in September of 1962 and January of 1963. It was noted, however, that a pre-accident shortening of the left leg and stiffening of the left knee, to which reference was made in our earlier opinion, still had some restrictive effect on the claimant's ability to walk, just as had been the case before the accident; but the orthopedists found absolutely no residual orthopedic disability resulting from the accident.

The testimony of Dr. Dupre, the claimant's attending physician at the time of the first trial, was not available to evaluate the plaintiff's present condition. The claimant had never reported back to Dr. Dupre for treatment following the first trial.

However, the plaintiff was treated by three Oakdale general practitioners following the first trial, all of whom felt that the claimant was disabled from working due to a back condition. However, as to these physicians' testimony, we think it fair to state that their more recent treatment and examination of the claimant was primarily for a heart condition which manifested itself (according to the...