Comeaux v. Cameron Offshore Services, Inc.

• Decision Date: 13 October 1982
• Docket Number: No. 82-173,82-173
• Citation: 420 So.2d 1209
• Parties: Russell COMEAUX, Plaintiff-Appellee, v. CAMERON OFFSHORE SERVICES, INC., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1209

420 So.2d 1209

Russell COMEAUX, Plaintiff-Appellee, v. CAMERON OFFSHORE SERVICES, INC., Defendant-Appellant.

No. 82-173.

Court of Appeal of Louisiana Third Circuit.

Oct. 13, 1982.

Simon, Peragine, Smith & Redfearn, Michael R. Daigle, New Orleans, for defendant-appellant.

McHale, Bufkin & Dees, Louis D. Bufkin, Lake Charles, for plaintiff-appellee.

Before DOMENGEAUX, DOUCET, and YELVERTON, JJ.

DOUCET, Judge.

This is a worker's compensation case wherein plaintiff, Russell Comeaux, was categorized as an "odd-lot" worker and was awarded benefits for permanent total disability. Defendant-appellant, Cameron Offshore Services, Inc., was further cast for statutory penalties and attorney's fees. Disputed on appeal is whether plaintiff sustained his burden of proving to a legal certainty and by a preponderance of evidence that he remains in substantial pain such as would preclude regular employment, and whether defendant's actions warranted imposition of penalties and attorney's fees.

On May 13, 1980, plaintiff sustained a straining-type injury to his back while collaring pipe in the normal course and scope of his employment with defendant, Cameron Offshore Services, Inc. He was examined at St. Patrick's Hospital, where he was told that he had a pulled muscle, given pain pills and discharged with instructions to consult another physician if the pain continued. The pain continued.

Two days subsequent to the injury plaintiff sought the services of a chiropractor who rendered treatment through May 26, 1980.

Approximately one month post-injury, on June 16, 1980, Comeaux was examined by Jerome W. Ambrister, an orthopedic surgeon. Dr. Ambrister diagnosed plaintiff's condition as lumbo-sacral strain, from which plaintiff was expected to recover in about six weeks. One month thereafter, July 25, 1980, Comeaux returned to Dr. Ambrister and was found "to have recovered from the lumbo-sacral strain, and has no resulting disability. He is thought to be physically able to return to his usual type of work."

On August 12, 1980, Comeaux underwent a neurological examination by Dr. William F. Foster, Jr. who diagnosed plaintiff's condition as "lumbo-sacral straining injury, resolved".

Plaintiff returned to Dr. Ambrister on August 19, 1980 and requested a written statement that he was able to return to work, which was granted. Benefits previously received were terminated August 20, 1980.

Upon returning to work at Cameron Offshore plaintiff experienced a resurgence in back pain and was subsequently discharged.

Following his discharge from Cameron Offshore, he obtained a job at The Woodshed, a local furniture refinishing shop, in September, 1980. For "almost a year" he sanded, stripped and sprayed wood furniture. Comeaux testified that he was terminated after he became "slowed down because his back gave out."

Following his discharge from The Woodshed, Comeaux occasionally painted commercial signs at home earning about $75.00 every two weeks. Even under such restricted working conditions plaintiff endures pain to the extent that he cannot sleep, according to the testimony of plaintiff and his wife. Nevertheless, Comeaux, along with his wife, partially rennovated a barn which they now use as living quarters. In this regard, Comeaux laid and tacked tar paper on the floor and helped carry a fifteen foot oval rug.

On July 10, 1981, plaintiff again sought medical treatment, consulting orthopedist Dr. R. Dale Bernauer. Dr. Bernauer's examination was essentially negative however, he noted a narrowed intervertebral disc interspace at the L5, S1 location. Dr. Bernauer felt that Comeaux would benefit from a myelogram so as to rule out any disc extention. Arrangements were made for this procedure, however the scheduled myelogram had to be cancelled due to defendant's refusal to pay the costs and the plaintiff's financial inability to pay the expense himself. Upon learning of Dr. Bernauer's recommendation, counsel for defendant arranged to have plaintiff re-examined by Dr. Ambrister. This examination was conducted on July 21, 1981, at which time Dr. Ambrister found no objective findings and rendered a negative report as to disability. Despite plaintiff's subjective complaints, Dr. Ambrister had no X-rays conducted, perhaps explaining the lack of objective data.

At the time of trial plaintiff remained under medication having received a prescription for pain killers from Dr. Bernauer a week prior thereto.

Testifying at trial were Dr. Bernauer, plaintiff and Patricia Comeaux, plaintiff's wife. The defense presented no witnesses. Following trial, judgment was rendered in favor of plaintiff and against defendant, the Court finding that Comeaux was totally and permanently disabled as a result of the May 13, 1980 injury and, further, that defendant was arbitrary and capricious in failing to pay compensation and medical expenses subsequent to August 20, 1980. Accordingly, defendant was assessed with statutory penalties on all unpaid benefits and attorney's fees in the amount of $2,000.00. From that judgment defendant has perfected this suspensive appeal.

Appellant assigns the following specification of errors:

1) The court erred in finding plaintiff totally and permanently disabled.

2) The court erred in finding defendant arbitrary and capricious in failing to pay compensation and medical expenses subsequent to August 20, 1980.

Appellant places emphasis upon the fact that Drs. Ambrister and Foster considered plaintiff to be without back problems, whereas only Dr. Bernauer found objective signs of disability. However, the number of witnesses is not a decisive factor as witnesses are weighed, not counted. Peyton v. Wade, 181 So.2d 878 (La.App. 4th Cir.1966). The fundamental function of the trier of facts is to determine the facts and this is not done by counting noses. U.S. Fidelity & Guaranty Co. v. Fiffie, 211 So.2d 690 (La.App. 4th Cir.1968). Furthermore, positive findings of medical experts are to be afforded greater weight than the negative findings as to the existence or not of a particular condition. Smith v. Highlands Ins. Co., 222 So.2d 540 (La.App. 4th Cir.1969). The trial judge did not commit manifest error in assigning greater weight to the testimony of Dr. Bernauer.

Moreover, expert testimony is not controlling inasmuch as courts cannot abdicate their decision-making responsibilities in favor of the medical profession but must consider all factors present in a case. Broussard v. Broussard, 320 So.2d 236 (La.App. 3rd Cir.1975). The ultimate determination concerning disability is by the courts, not the medical profession. Guillory v. United States Fidelity and Guaranty Ins. Co., 420 So.2d 119, (La.1982). Hence the trial judge may accord greater weight to the testimony of a lay witness than that of expert witnesses. In this regard the trial judge specifically noted the veracity of plaintiff and his wife, and that plaintiff "demonstrated a sincere wish to be done with his back problems".

Similarly, the testimony of a physician who examines and treats an injured party is generally entitled to greater weight than that of a physician who examines the party at a later date. However, like all rules of law, the aforesaid rule is not inflexible, but subject to exception. All of the physicians involved acknowledged the existence of an injury; disagreement existed only as to its recovery or lack thereof. When one doctor deemed him recovered plaintiff proceeded to consult another physician. Dr. Bernauer exhibited concern for Comeaux's condition and sought objective data to aid in diagnoses. Under the circumstances we cannot conclude that the trial judge erred in assigning the weight given to the physician who had most recently examined plaintiff.

Next, appellant contends that plaintiff's failure to call as a witness the chiropractor consulted creates a presumption that his testimony would have been adverse. This presumption alone, where applicable, is not sufficient to outweigh or overcome the positive testimony of medical doctors who did testify inasmuch as a litigant is not required to produce all witnesses who might have some knowledge as to the matter in dispute. Boutte v. Mudd Seperators, Inc., 236 So.2d 906 (La.App. 3rd Cir.1970), writ refused 256 La. 394, 240 So.2d 231 (1970); Motors Ins. Corp. v. Boling, 262 So.2d 156 (La.App. 3rd Cir.1972). This is particularly true where the witness is equally available to the defendant. Rushing v. Insurance Co. of North America, 391 So.2d 864 (La.App. 3rd Cir.1980); Crandall v. Scott, 350 So.2d 922 (La.App. 4th Cir.1977). The trial judge may have concluded that, insofar as the chiropractor lacked the expertise of a medical physician, he could shed no additional light on plaintiff's condition. cf: Baham v. South Central Bell, 355 So.2d 630 (La.App. 4th Cir.1973).

We agree with the trial judge that plaintiff remains disabled, suffering substantial pain, as a result of the May 13, 1980 accident. Accordingly, we proceed to address the issue of whether claimant falls under the odd-lot doctrine such as would justify the award of total and permanent compensation.

The trial judge made the following observations with respect to plaintiff's condition:

"Plaintiff is not a highly educated person and is unskilled at any trade other than sign painting which he has followed from time to time. At the time of the accident he was working as a laborer with heavy pipe at defendant's shop. He returned to work and was discharged after about three days by his employer. He then worked as a helper in a furniture refinishing business and did well enough to be granted one raise in pay. He became 'slowed down because his back gave out' and was terminated. Since then he has sought no employment but with the help of his wife he does some sign painting at home.

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Plaintiff testified he continued to have back pain during this entire period. He put a board under his mattress and his wife...