D'Aville v. Travelers Ins. Co.

• Decision Date: 24 May 1974
• Docket Number: No. 4555,4555
• Citation: 295 So.2d 454
• Parties: Wilbert D'AVILLE, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 454

295 So.2d 454

Wilbert D'AVILLE, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.

No. 4555.

Court of Appeal of Louisiana, Third Circuit.

May 24, 1974.

Rehearing Denied June 26, 1974.

Dubuisson, Brinkhaus, Guglielmo & Dauzat, by Jimmy L. Dauzat, Opelousas, for defendant-appellant.

Tate & Tate by Paul C. Tate, Mamou, for appellee.

Before FRUGE , DOMENGEAUX and WATSON, JJ.

FRUGE , Judge.

Wilbert D'Aville sues defendant Travelers Insurance Company, the insurer of his employer, Jerome Moore, and/or Eunice Superette Slaughter House, for workmen's compensation benefits. The trial court found plaintiff to be totally and permanently disabled and awarded judgment against Travelers for compensation at the rate of $49.00 per week for 500 weeks, together with medical expenses not to exceed $12,500. The trial court also awarded statutory penalties of 12% On all payments delinquent 60 days or more and attorney's fees in the amount of $4,500. We reverse in part and affirm in part.

Plaintiff was employed as a butcher for approximately four years in the 'killing department' of the Eunice Superette. He was also the foreman of the 'killing department'. On October 3, 1971, plaintiff testified he injured his left arm when a calf struck the gate he was holding on to, knocking him down and causing him to hang by his left arm. While hanging onto the gate with his left arm, the calf passed between his legs, twisted him, and threw him to the ground.

Despite the accident, plaintiff continued working in the 'killing department'. He was seen by Dr. James T. Thompson, a general practitioner in Eunice, on the day following the accident. Dr. Thompson diagnosed plaintiff's condition as a rupture of the long head of the biceps tendon; slight atrophy of the deltoid muscle; and weakness of the left upper extremity to extension and abduction. Dr. Thompson saw plaintiff between 10 and 20 times and referred him to Dr. Robert Luke Bordelon, an orthopedic surgeon in Opelousas. Dr. Bordelon found that plaintiff had a rupture of the biceps tendon, and some dysfunction of the rotator cuff, also called attrition of the rotator cuff. Dr. Thompson and Dr. Bordelon were of the opinion that plaintiff was unable to do overhead work with his left arm and should refrain from going in and out of cool places.

Dr. Fred C. Webre, an orthopedic surgeon of Lafayette, examined plaintiff at the request of Travelers. Dr. Webre concurred with the opinions of Drs. Thompson and Bordelon that plaintiff had a rupture of the left long head of the biceps tendon. Dr. Webre, however, found no indication of dysfunction of the rotator cuff, and consequently was of the opinion that plaintiff suffered no impairment to prevent him from working as a butcher.

Testimony of all doctors was introduced by way of deposition. The last deposition was taken on July 16, 1973. The trial was held five months later on December 17, 1973. On the morning of the date fixed for trial, Travelers presented a motion to the court for appointment of a physician to examine plaintiff under the authority of LSA-R.S. 23:1123. The trial court in effect denied the motion of Travelers by proceeding to hear the case on the merits.

Travelers assigns as error the failure of the trial court to grant the motion for a court appointed physician as required by LSA-R.S. 23:1123. Travelers relies on the alleged mandatory language of the statute. It is argued that the court is obliged to appoint a medical practitioner to examine the employee whenever there is any dispute regarding the condition of the employee. It is Travelers's contention that the conflict in the medical opinions of the experts requires the trial court in this case to order the employee to submit to examination by a court-appointed physician.

Counsel for plaintiff replies to this contention by pointing out that the motion was untimely, and the trial court properly exercised its discretion in trying the case. It is the contention of the plaintiff that this is merely a dilatory tactic to allow the defendant an opportunity to revise its position on the medical issue.

In order to facilitate an understanding of the issue, the statute itself should be examined. The statutory scheme of workmen's compensation is provided by LSA-R.S. 23:1021 et seq. The provision relied on by defendant is contained in Subpart F, Medical Examinations. We set out the text of the statutes which are applicable.

Section 1121:

'An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter as often as may be reasonaby necessary and at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this Chapter.'

Section 1122:

'The employer shall cause the examination provided for in the preceding section to be made immediately after knowledge or notice of the accident, and to serve a copy of the report of such examination made by the employer's physician upon the employee within six days after the examination. If the examination is not made and the report is not furnished by the employer within that time, the employee shall furnish a report of the examinatiion made by his own physician to the employer, for which the employee shall be entitled to receive from the employer the sum of one dollar. Upon the receipt by either party of such a report from the other party, the party receiving it, if he disputes the report or any statement therein, shall notify the other of that fact within six days, otherwise the report shall be prima facie evidence of the facts therein stated in subsequent proceedings under this Chapter.'

Section 1123:

'If there be any dispute thereafter as to he condition of the employee, the court, upon application of either party, shall order an examination of the employee to be made by a medical practioner appointed by the court. The fees of such examiner shall be fixed by the court at not more than ten dollars, and shall be paid in advance by the applicant. The medical examiner shall report his conclusions from the examination to the court, and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.'

The statutes reveal they are designed to be read together in order to give a proper assessment of the role of the medical examination in a compensation hearing. In view of the fundamental purpose of the workmen's compensation statute that the employee be paid for disability, the statute requires that a medical examination be made.

LSA-R.S. 23:1122 requires the employer to immediately call for a medical examination to be made after an accident. Similarly, Section 1123 would imply by its reference to the preceding statute that the court-ordered examination should be made as expeditiously as possible after there is a dispute between the parties regarding the medical evidence. The statute does not require that the trial court appoint a physician where the parties have had ample time prior to the date set for trial to request an examination of the employee. This would interfere with the orderly proceedings of trial courts and delay the employee's right to a judicial determination of disability. We do not imply that the trial court cannot order an examination if it is of the opinion further medical evidence is necessary.

The second error specified by the defendant is the finding made by the trial court that the employee was totally and permanently disabled within the meaning of the workmen's compensation statute. Defendant relies principally on the fact that plaintiff has continued to work for his employer. It is uncontested that Mr. D'Aville continues to function in the capacity of foreman or manager in charge of the 'killing room' in the Eunice Superette. There is ample evidence, however, for the finding by the trial court that plaintiff was permanently and totally disabled from performing the duties of a butcher within the meaning of the workmen's compensation statute.

Drs. Thompson and Bordelon testified that plaintiff could not do the work he had previously done without considerable pain. Dr. Bordelon suggested plaintiff refrain from...