Cross v. Travelers Ins. Co.

• Decision Date: 05 May 1993
• Docket Number: No. 22737-CA,22737-CA
• Citation: 619 So.2d 610
• Parties: Arthur CROSS, Jr., Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY and Refiners Transport Service, Inc., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 610

619 So.2d 610

Arthur CROSS, Jr., Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY and Refiners Transport Service Inc., Defendants-Appellants.

No. 22737-CA.

Court of Appeal of Louisiana Second Circuit.

May 5, 1993.

Rehearing Denied June 17, 1993.

Mayer, Smith & Roberts by Walter O. Hunter, Jr., Shreveport, for defendants-appellants.

Campbell, Campbell & Johnson by James M. Johnson, Minden, for plaintiff-appellee.

Before NORRIS, VICTORY and BROWN, JJ.

BROWN, Judge.

Defendants, Refiners Transport Service, Inc. (Refiners Transport) and Travelers Insurance Company (Travelers), appealed the judgment of the trial court awarding plaintiff, Arthur Cross, Jr., workers' compensation benefits as the result of a heart attack. Because Cross died before judgment was signed, we remanded for the substitution of the proper party plaintiff. The formalities being completed, judgment was again rendered for the substituted plaintiff and defendants appeal. ¹ We affirm.

FACTS

On November 20, 1987, the Office of Workers' Compensation rejected Cross's claim for workers' compensation benefits finding that his myocardial infarction was not work-related. On December 18, 1987, Cross instituted this action in district court for workers' compensation benefits naming as defendants his employer, Refiners Transport, and its insurer, Travelers.

At trial Cross's case consisted primarily of his testimony and medical depositions. Cross was 54 years old, had an ulcer and was taking medication for high blood pressure but otherwise claimed good health. Cross testified that he had been employed by Refiners Transport as a truck driver for approximately six years. He drove an 18 wheel tractor-trailer rig and mainly hauled cardboard boxes for Inland Container out of its Minden plant. Cross's usual work procedure was to pick up a trailer already loaded at the Inland Container plant; however, on occasion he had assisted in loading. His lifetime work history was principally as a welder and truck driver.

Cross denied any indication of heart problems prior to December 12, 1986. On that date, Cross reported to work in the early morning hours. He drove his tractor to Inland Container and picked up a loaded trailer for a trip to Dallas, Texas. As he was pulling away from the terminal, Cross thought he was having indigestion and stopped to purchase Rolaids before getting on Interstate 20. Cross felt worse near Waskom, Texas, and pulled over for a few minutes. He then stopped near Marshall and purchased more Rolaids. On the other side of Longview, Cross pulled over and rested for approximately an hour but became concerned because he was running late.

At his first destination, Cross was told to call Inland Container's dispatcher, Steve Ramsey, who asked him why he was late in delivering his load. This conversation upset Cross and he reported that he had been sick. Cross laid down while his truck was being unloaded. Cross made another stop in the Dallas area and again did not participate in unloading but waited in the office. Cross believed he had one other stop, possibly Tyler, but his memory had been impaired following the heart attack. After departing Dallas, Cross's condition worsened and near Canton, Texas, he pulled over and rested for approximately three hours.

Upon returning to Minden, Cross stopped at his wife's workplace and told her he had been ill throughout the day. He called a friend, Loyce Manning, to pick him up at the terminal. Cross stated that at the terminal he told his supervisor, Thomas Sheets, he had been ill all day. Manning picked up Cross after 6:00 P.M. and they proceeded to Manning's house for a domino game. When none of the other players came, Cross fell asleep, claiming he was not feeling well. He slept until approximately 10:30 P.M. when his wife picked him up from Manning's house. Cross did not drink any alcohol during this time and ate a small snack after he got home before retiring for the night. Cross's indigestion woke him up and he took more Rolaids and Mylanta. Shortly thereafter, Cross was driven by his wife to Bossier Medical Center where he was diagnosed as having had a myocardial infarction.

Cross was hospitalized for eleven days and then rehospitalized five days later after experiencing severe dizzy spells. He never attempted to return to work following the heart attack. In May of 1987 Cross's condition was diagnosed as a hypersensitive carotid sinus which necessitated the implant of a pacemaker.

Cross's parents had heart problems and he smoked a pack of cigarettes every two days. He stated that he was not a heavy drinker of alcoholic beverages. Although released by his physician to return to light work in March 1987, Cross stated his employer had no work within the restrictions imposed. Plaintiff's testimony was corroborated by his wife, Martha Jo Cross, and friend, Loyce Manning.

Thomas Sheets, terminal manager for Refiners Transport, testified Cross was a good employee. Sheets stated that his first contact with Cross on December 12, 1986, was at the office at approximately 7:00 to 7:30 P.M. Sheets denied that Cross made any complaints about his health. Sheets testified that nothing was said by Cross concerning being late or having to repeatedly pull over on the Dallas trip nor had there been any complaints from the dispatcher with Inland Container. Sheets did not learn of Cross's heart attack until the afternoon of the next day.

When Cross was released to light duty work, Sheets told him that it would take more than twenty pounds to pull himself inside the truck, hook up his trailer or close the trailer doors. Sheets stated that because of the restriction not to lift more than twenty pounds, there was no light duty work available.

Steve Ramsey, the shipping clerk and dispatcher with Inland Container, had no recollection of Cross calling in on the date of the incident. Gary Hunter, a fellow truck driver, was present in the office with Sheets when Cross reported in and testified that Cross made no comments about experiencing any physical problems during the Dallas trip.

After reviewing the evidence, the trial court found in favor of Cross and awarded him workers' compensation benefits during his lifetime in the sum of $261 per week, together with all related medical expenses in the amount of $17,752.90. The trial court found that the heart attack was attributable to stress related to Cross's employment as a truck driver. The court determined that Cross's disability was causally related to his employment and concluded that Cross sustained a total and permanent disability within the course and scope of his employment. Finding that there was a good faith dispute as to whether Cross was entitled to benefits, the trial court denied demands for statutory penalties and attorney fees.

After the trial court's decision, but before judgment was signed, Cross died. Because a judgment for or against a dead person is an absolute nullity, we remanded the case back to the trial court to permit the substitution of parties. Cross v. Travelers, No. 22,737 (La.App.2d Cir.1991) (unpublished). Thereafter, Cross's wife, individually and as administratrix of his succession, was substituted as plaintiff and a new judgment was signed adopting the provisions of the original judgment. Thus, the merits of the case are now properly before this court.

DISCUSSION

I. CAUSATION

Defendants claim that the actual heart attack occurred at approximately 1:00 A.M., at least six to seven hours after Cross had finished work and left his employer's premises. This workday was a Friday and Cross had no further employment responsibilities until Monday morning. Although expecting to participate in a domino game, all Cross did after leaving work was nap, eat and go to bed. Therefore, defendants argue that the incident did not occur in the course of employment.

Defendants further argue that Cross stated he had indigestion as soon as he arrived on the premises to pick up his load, which at this time was not traceable to any job-connected stress, tension or hard labor. Doubting Cross's credibility, defendants contend that it was not possible for him to have made as many stops as claimed on his trip to and from Dallas within the time frame of that work day and further that he made no complaints about any illness after returning from Dallas. Defendants argue that Cross's infarction was the result of many pre-existing risk factors, including high blood pressure, obesity, high cholesterol and a family history of heart problems.

Defendants claim Cross's version of the happenings of that day are not true. However, the trial court's factual findings are entitled to great weight. Our standard of review applicable to a trier of fact's findings in a workers' compensation case is the manifest error/clearly wrong test. Key v. Insurance Company of North America, 605 So.2d 675 (La.App.2d Cir.1992). The trial court's reasonable factual conclusions, evaluations of credibility and inferences will not be disturbed on appeal even though this court may feel that contrary evaluations and inferences are equally reasonable. Patterson v. GNB Battery, Inc., 569 So.2d 640 (La.App.2d Cir.1990), writ denied, 573 So.2d 1134 (La.1991).

The trial court believed and accepted Cross's testimony of the events of the day in question. A worker's testimony alone may be sufficient to discharge the burden of proof, provided that no other evidence discredits or casts serious doubt upon his version of the incident and the worker's testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert International, 593 So.2d 357 (La.1992); Roszell v. National Union Fire Insurance Company, 602 So.2d 87 (La.App. 3d Cir.1992). Corroboration of the worker's testimony may be provided by co-workers, family or friends and medical evidence. Bruno v. Harbert International, supra. See also W. Malone & A. Johnson, Workers' Compensation Law and Practice, ...