Collins v. Southern Pulpwood Ins. Co., 520
| Decision Date | 08 March 1962 |
| Docket Number | No. 520,520 |
| Citation | 138 So.2d 638 |
| Parties | Donald COLLINS, Plaintiff-Appellee, v. SOUTHERN PULPWOOD INSURANCE COMPANY, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Sanders & Long, by Martin S. Sanders, Jr., Jena, for defendant-appellant.
Polk, Foote & Neblett, by Robert B. Neblett, Jr., Alexandria, for plaintiff-appellee.
Before TATE, FRUGE , and SAVOY, JJ.
This is a suit in workmen's compensation instituted by Donald Collins against the Southern Pulpwood Insurance Company, insurer of the LaSalle Wood Company, resulting from an accident which occurred on or about December 29, 1959. The plaintiff was employed by Eddie Collins, an independent contractor, working for the LaSalle Wood Company, as a laborer, whose duties included the cutting and loading of pulpwood, driving of a tractor, and occasionally operating a saw and doing other related heavy manual labor. This action was instituted against the insured owner and the coverage is admitted by the defendant. The lower court rendered judgment in favor of the plaintiff for total permanent disability and fixed the compensation payments at $35.00 per week. From this judgment, the defendant perfected this appeal to this Court, and plaintiff answered the appeal seeking penalties and attorney fees.
There is ample proof in the record that the plaintiff did sustain an accident within the meaning and contemplation of the workmen's compensation laws. However, it is the contention of the defendant-appellant that the plaintiff was not in any manner injured while working on the job, and further that if he did receive any injury, the injury was only slight and that he is fully recovered from his injuries. It is the further contention of the defendant that if the plaintiff has any disability, the condition is of a congenital nature.
The plaintiff was first seen by Dr. I. C. Turnley, Jr., a general practitioner of Jena, Louisiana. Dr. Turnley testified that after the examination of the plaintiff there were positive findings of swelling, soreness, pain on pressure and some muscle spasm of the right thigh. It was his diagnosis at that time that the plaintiff had suffered a contusion to the lateral side of the right thigh, with possible fascia lata tear. He prescribed pain relieving drugs and muscle relaxing agents and diathermic treatments. Afterwards, he saw plaintiff frequently giving the plaintiff diathermic treatments. On February 5th, he referred him to Dr. Banks, Orthopaedic Surgeon at Alexandria, Louisiana, and afterwards advised him to see Dr. Heinz K. Faludi, Neurosurgeon of Shreveport, Louisiana. Dr. Turnley testified that the plaintiff continued to be symptomatic. He continued to see the plaintiff until May 13, 1960. While Dr. Turnley had referred the plaintiff to Dr. Faludi, and while Dr. Faludi examined the plaintiff on different occasions, he only had the first report of Dr. Faludi. On May 13, 1960, Dr. Turnley testified that he was of the opinion that the plaintiff should try to return to his usual work. In testifying, Dr. Turnley stated:
Dr. Turnley further testified that when he discharged the plaintiff in May, 1960 that he so informed the insurance company by telephone conversation with its representative in Shreveport that it was a qualified release.
Dr. T. E. Banks, orthopaedic surgeon of Alexandria, Louisiana, saw the plaintiff in February of 1960, the plaintiff having been referred to him by Dr. Turnley. Dr. Banks found that the plaintiff had a weak or unstable back. He testified that the X-rays taken by him revealed a spina bifida occulta involving the posteria processes of L--5 and the X-rays further revealed very acute lumbar lordosis at the lumbosacral joint with a marked angle. Dr. Banks stated that the spina bifida occulta is a congenital change and so was the acute lumbar angle. On direct examination he was of the opinion that from his examination there was no aggravation of any of these congenital abnormalities by trauma. On cross examination, Dr. Banks testified that it was possible that the plaintiff had a spondylolisthesis at the time of the accident which could have become symptomatic after the accident and that a qualified physician who had seen plaintiff four or five times would be in a better position to evaluate the plaintiff than a physician who had seen the plaintiff only on one occasion.
Dr. Heinz K. Faludi, a Neurosurgeon of Shreveport, Louisiana, examined plaintiff on March 4th, June 13th, August 12th, September 12th, and November 28, 1960. Dr. Faludi was of the opinion that the plaintiff had a back condition known as a spondylolisthesis, and in addition to that had a congenital defect in the formation of the L--5 vertebra with sclerosis around the articular process. These conditions were pointed out by Dr. Faludi with X-ray films taken by him at the time of his deposition. He was of the opinion that plaintiff had this unstable back and he felt that the accident sustained by plaintiff on December 29, 1959 aggravated the back condition and caused it to become symptomatic. He first prescribed heat treatments and sleeping on a hard mattress and later prescribed a back brace. He felt that plaintiff's symptoms were greater on the second visit and continued on each examination and remained relatively constant throughout the entire time of his examinations and treatment. After his examination in August of 1960, he prescribed light work for the plaintiff.
The record also indicates that there were three lay witnesses who testified that plaintiff was disabled from performing heavy manual labor and whose testimony is uncontradicted.
A workman is totally and permanently disabled within our workmen's compensation laws if his injury disables him from performing the work he is accustomed to doing or work of a reasonable character which he is qualified to perform. Pierce v. Cochran & Franklin Company, La.App., 175 So. 170; Brannon v. Zurich General Accident & Liability Insurance Company, 224 La. 161, 69 So.2d 1; Wright v. National Surety Corporation, 221 La. 486, 59 So.2d 695. It has been repeatedly held by the Courts of this State that a man is entitled to compensation if to do work of a reasonable character he must work in pain as if he is forced to work in pain it will materially increase not only the hazards to his own health and safety, but also those to his fellow employees. Knispel v. Gulf States Utilities Co., Inc., 174 La. 401, 141 So. 9; Stieffel v. Valentine Sugars, Inc., 189 La. 1091, 179 So. 6; Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228; Lee v. International Paper Co., La.App., 16 So.2d 679; Brown v. Furr, La.App., 19 So.2d 283; Schneider v. Travelers...
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