Cutno v. Neeb Kearney & Co.

• Decision Date: 01 June 1959
• Docket Number: No. 44226,44226
• Citation: 112 So.2d 628,237 La. 828
• Court: Louisiana Supreme Court
• Parties: Daniel CUTNO v. NEEB KEARNEY & COMPANY, Inc. and Fidelity & Casualty Company of New York.

Page 628

112 So.2d 628

237 La. 828

Daniel CUTNO v. NEEB KEARNEY & COMPANY, Inc. and Fidelity & Casualty Company of New York.

No. 44226.

Supreme Court of Louisiana.

June 1, 1959.

Rehearing Denied June 25, 1959.

Edmond E. Talbot, Jr., Lloyd C. Melancon, New Orleans, for plaintiff-appellant.

Russell J. Schonekas, Warren E. Mouledoux, Louis B. Claverie, New Orleans, for amicus curiae.

Christovich & Kearney, A. R. Christovich, Jr., New Orleans, for defendants-appellees.

HAWTHORNE, Justice.

Daniel Cutno, alleging that he is totally and permanently disabled from the effects of an accident suffered by him on July 18, 1956 in the course of his employment with Neeb Kearney & Company, sued his employer and its insurer to recover workmen's compensation on that basis under R.S. 23:1021 et seq. The case is now before us on a writ of certiorari granted upon his application to review the judgment of the Orleans Court of Appeal affirming the judgment of the district court dismissing his suit. See Cutno v. Neeb Kearney & Company, La.App., 103 So.2d 494, 499.^*

Prior to the alleged accident Cutno worked as a freighthandler on the riverfront in New Orleans. While working in this capacity for Neeb Kearney on the morning of July 18, 1956 and while in the process of transferring hundred-pound sacks of flour from a boxcar to a handcar, Cutno alleges that around eleven o'clock in the morning he began to feel severe pain in his stomach. The record shows that he had been having pain in his stomach or abdomen more or less severely for about five years--an 'ulcer history' in medical terminology. This particular morning, however, while Cutno was lifting the heavy flour sacks and stacking them on the handcar, his stomach pains became so intense that he had to stop work and sit down. He stayed around the docks for an hour or so feeling steadily worse and finally borrowed a fellow workman's car and drove himself home. There he was in such acute agony that around one-thirty p.m. a neighbor lifted Cutno into his car and drove him to Charity Hospital where he was operated on early the next morning for a perforated duodenal ulcer. As is customary in ulcer perforation cases, the surgeon who operated simply opened the abdominal wall and sewed up the hole in the stomach to stop the bleeding, leaving some parts of the ulcer on the wall of the duodenum. Cutno was discharged from the hospital a week after the operation but continued to suffer from pains in his stomach to such a degree that he was unable to do any kind of work until August of 1957, over a year later, when he got a job as a porter in a bank. From the medical testimony offered in this case it appears that this closure operation rarely cures an ulcer, and that well over half of the patients have to undergo surgery later if post-operative medical treatment fails to heal it. When this case was tried in November of 1957 Cutno was still having pain.

It is Cutno's position in this suit that the heavy work which he was doing for his employer caused or contributed to the perforation of his duodenal ulcer. Defendants, the employer and its insurer, argue that there is no causal connection between the work Cutno was doing and the perforation, and thus deny that a compensable accident occurred. They also seek to have the suit dismissed on the ground that the employer was not notified of the injury within six months thereof. In the alternative they argue that even if Cutno suffered an injury within the meaning of the workmen's compensation act, he has now fully recovered therefrom, and if he is now disabled his condition is unrelated to his employment.

The district court dismissed the suit on the ground that Cutno did not suffer a perforation of a preexisting ulcer under circumstances which would allow a compensation award; that even if it be conceded that a compensable accident occurred, the requisite notice was not given to the employer; and that any disability which Cutno may presently have stems from natural causes unrelated to his employment. The Court of Appeal's affirmance of the lower court judgment was grounded on its conclusion that Cutno's ulcer had perforated after he left the scene of employment, that there was no causal connection between the work the employee was doing and the perforation, and that the employer had been prejudiced by Cutno's long delay in giving notice of his injury. See Cutno v. Neeb Kearney & Company, La.App., 103 So.2d 494.

We will dispose of the preliminary plea of delayed notice before discussing the merits of the case.

R.S. 23:1291 provides that no proceeding to recover compensation shall be maintained unless notice of the alleged injury has been given to the employer within six months after the date of the injury. R.S. 23:1295 specifies that failure to give notice or delay in so doing shall not be a bar to proceedings under the workmen's compensation act if 'it is shown that the employer, or his agent or representative, had knowledge of the accident, or that the employer has not been prejudiced by such delay or want of notice.'

It is conceded by all parties to this suit that the employer received no notice of Cutno's injury until June 5, 1957, roughly eleven months after the date on which it occurred. The record further shows that although the employer's labor superintendent knew that Cutno had gone home sick and had been operated on, no one at the company knew that Cutno was contending that his perforated ulcer was an 'injury' which he had received at work and hence compensable. However, in spite of the fact that the employer had neither timely notice, nor knowledge, of the injury here being sued on, Cutno's delay in giving notice cannot be urged successfully by defendants as a bar to these proceedings for the reason that the employer has not shown that it has been prejudiced by the five months' delay. In brief filed in this court counsel for Neeb Kearney contends that the employer was prejudiced (a) because the doctor who originally treated Cutno was not available when notice of the injury was finally given to the employer eleven months after its occurrence. There is nothing to substantiate this claim of prejudice in the record in this case, no subpoena or testimony to show that the employer tried to get in touch with the doctor and failed, and hence we can give no consideration to this first allegation of prejudice. Next, counsel contends that Neeb Kearney was prejudiced (b) because the employer had no opportunity to examine and treat the injured employee at the time the injury occurred, and Cutno's own doctor at the trial stated that the freighthandler had had inadequate post-operative care, and (c) because an investigation made some eleven months following an accident suffers in comparison with an immediate investigation at the time of the happening. See Hollingsworth v. Crossett Lumber Co., 184 La. 6, 165 So. 311; Hinton v. Louisiana Central Lumber Co., La.App., 148 So. 478.

We do not think that the remote possibility that the employer might have given Cutno better medical treatment or the suggestion that an earlier investigation of the incident would have been of more benefit to the employer constitutes material prejudice. In Dortch v. Louisiana Central Lumber Co., La.App., 30 So.2d 792, 795, the Second Circuit Court of Appeal discussed the notice provisions of the Workmen's Compensation Statute in these words:

'Construction of these provisions should be liberal in favor of the plaintiff; and unless it be clearly proven that because of the delay in giving notice of the accident the rights of the employer and/or his insurer have been thereby prejudiced, the bar should not be enforced. In this case, notwithstanding the long and unusual delay in giving notice of the alleged accident, the record is quite clear that no one has been really prejudiced thereby. The insurer's adjuster made the same sort of examination and contacted the same witnesses he would have, had knowledge of the accident and ensuing disability therefrom been imparted to him much earlier. * * * It is not shown that defendant has been deprived of the testimony of a single witness or of the benefit of any documentary evidence because of the delay. So far as we are able to see, the trial of the case, a year after the alleged accident, was, for all practical purposes, conducted in the same manner and was participated in by the same persons as would have happened had trial been months earlier.'

Having concluded that petitioner's delay in giving notice is not a bar to this suit because there has been no showing that the employer has been prejudiced thereby, we will proceed to a consideration of whether Cutno experienced an injury within the meaning of the Workmen's Compensation Law as interpreted by the courts of this state when his duodenal ulcer perforated on July 18--19, 1956.

It is now well settled in Louisiana that the legal requirements are present to constitute an accident and an injury is compensable under our workmen's compensation statute where excessive heat, heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition. See Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625 and cases there cited. Nor is it necessary that the adverse result of such stress and strain develop at the time or at the scene of employment if the stress and strain were sufficient to have caused, contributed to, or accelerated the physical breakdown ultimately resulting in disability or death. See Dortch v. Louisiana Central Lumber Co., La.App., 30 So.2d 792.

Jackson v. Travelers' Ins. Co., 180 La. 43, 156 So. 169, 170, is very similar to the instant case. In Jackson the employee was engaged in loading 200 pound cross-ties on a boxcar. He and a coworker picked up a tie and raised it to about the height of a man's shoulder when suddenly the employee dropped his...