Daney v. Argonaut Ins. Co.

• Decision Date: 12 October 1982
• Docket Number: No. 15067,15067
• Citation: 421 So.2d 331
• Parties: James W. DANEY v. ARGONAUT INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 331

421 So.2d 331

James W. DANEY v. ARGONAUT INSURANCE COMPANY.

No. 15067.

Court of Appeal of Louisiana First Circuit.

Oct. 12, 1982.

Jeff C. Calmes, Maurice J. Wilson, Jr., Baton Rouge, for plaintiff-appellant, James W. Daney.

R. Loren Kleinpeter, Baton Rouge, for defendant-appellee, Argonaut Ins. Co.

Before COVINGTON, LEAR and LANIER, JJ.

LANIER, Judge.

This is a suit for workmen's compensation benefits and statutory penalties. The trial judge rendered judgment from the bench dismissing the petition at plaintiff's costs because there was "... no testimony to the effect that any occurrence took place in the course and scope of his employment that resulted immediately in an injury that's compensable under the laws of the State of Louisiana." This devolutive appeal followed.

I. FACTS

In August of 1978, the plaintiff-appellant, James W. Daney, began working as an ironworker for Star Steel Erectors, Inc. (hereinafter referred to as Star). At all times pertinent to these proceedings, the Argonaut Insurance Company (hereinafter referred to as Argonaut) was the workmen's compensation insurer of Star. In March of 1979, Daney testified that he was experiencing lower back pain of such a degree that he felt he could no longer continue working with Star. He informed his boss about his back problems and was subsequently "laid off" by Star. He collected unemployment compensation benefits from March until August of 1979.

Daney testified that between March and August of 1979, the only treatment he received for his back problem was from a chiropractor whom he saw briefly. In August of 1979, Daney went to Toledo, Ohio, where his family resides. He entered the Toledo Hospital for treatment on August 19, 1979, and remained until September 1, 1979.

The records of the Toledo Hospital show that on August 19, 1979, Daney's back was X-rayed. Doctor J.R. Yoder determined that the X-rays were negative for the lumbar spine. On August 22, 1979, Dr. Richard Shara interviewed and examined Daney. Daney gave him a history of low back pain for the previous two years. Daney indicated that the pain became progressively worse on his left side and into his left leg during the previous six months. Daney could not relate this problem to a specific injury or accident, but advised Dr. Shara that he fell at one time on his sacral area when he was walking down a ravine. Dr. Shara found a positive straight leg raising reaction on the left which indicated "an L5 radiculopathy", but that this diagnosis was tentative because Daney otherwise had normal reflexes.

On August 24, 1979, Dr. L.M. Heinz performed a lumbar myelogram on Daney and determined that he had an "extradural defect L4-5 on the left anterolaterally" and that these findings were "compatible with herniated nucleus pulposus." On August 24, 1979, Daney was also examined by Dr. A.W. Emch and gave a history of falling and hitting his left hip approximately one year previously. Dr. Emch found a positive straight leg raising test with some weakness of dorsiflexion on the right great toe. Dr. Emch felt that further information was necessary before a final recommendation could be made.

On August 27, 1979, Daney was examined by Dr. R.J. Gosling and gave a history of low back pain over the previous two years. Daney gave no history of any specific injury, but had a gradual onset of the problem. Dr. Gosling found "discomfort with deep pressure just below the left sacroiliac joint", "no true muscle tenderness", and that straight leg raising can be done through good range of motion bilaterally although there was "increased discomfort with straight leg raising on the left...." Dr. Gosling determined that Daney had "nerve root irritation" and felt that he would "respond to physical treatment with emphasis on therapeutic exercise."

Daney was discharged from the Toledo Hospital on September 1, 1979. His final diagnosis on discharge given by Dr. R. Hazelrigg was "Lumbar disc disease L-4-5 left." Dr. Hazelrigg determined that it was "best not to approach patient surgically at this time because symptoms had significantly resolved secondary to conservative therapy." Dr. Hazelrigg recommended physical therapy on an outpatient basis and that Daney be reevaluated in approximately six weeks. The records of the Toledo Hospital indicate that Daney received physical therapy from September 4, 1979, through September 20, 1979. After the physical therapy was completed, Daney was discharged by his doctors and advised that he could return to his regular work.

Daney returned to Louisiana and in the beginning of October of 1979, returned to work with Star. On October 12, 1979, Daney was working on a wharf for a grain elevator in Myrtle Grove, Louisiana. He testified that he and several other workers were shoving a 30 foot steel rod inside a U-shaped concrete structure when he twisted his back and felt low back and leg pain. Daney testified that he then stopped working and loafed until the end of the shift. Daney testified that either that evening or the next morning he called his boss and advised him that he had hurt his back on the job.

Daney was examined by Dr. John A. Thomas on October 16, 1979. He gave a history of developing severe low back pain while doing some heavy lifting and pulling of steel. Daney advised Dr. Thomas that the pain continued in his lower back area with radiation into his left leg which cramped his calf muscles. Dr. Thomas' examination revealed "a man who is obviously in moderate distress from lower back pain with definite paralumbar muscle spasm on both forward and lateral bending and restricted secondary to muscle spasm and pain." Dr. Thomas determined that Daney was "suffering from a lumbar disc disease." Dr. Thomas recommended bed rest with medication for pain and muscle spasm and asked Daney to return for reexamination in two weeks. Dr. Thomas was "hopeful that his symptoms will fully resolve and he may return to a normal work level." Daney received five physical therapy treatments from the Baton Rouge Physical Therapy and Rehabilitation Center between October 30, 1979, and November 6, 1979. During those treatments, he "was limited in forward flexion which also caused the radicular pain down the leg."

On November 16, 1979, Daney was referred to Dr. John R. Clifford. Daney gave Dr. Clifford a history of experiencing pain in his low back and left leg while lifting a piece of steel on October 12, 1979. Daney gave no past history of serious illness, injuries, or operations. ¹ Dr. Clifford's examination revealed mild to moderate bilateral paraspinous muscle spasm, he found that flexion was painful past 60 degrees, and that the straight leg raising test was positive on the left. Dr. Clifford was of the opinion that Daney's "complaints are very likely on the basis of a ruptured lumbar disc." Dr. Clifford recommended a period of inpatient traction and physical therapy and a period of convalescence of approximately two to three weeks after those procedures.

Daney was admitted to Our Lady of the Lake Medical Center in Baton Rouge, Louisiana, on November 25, 1979, and received traction and physical therapy until his discharge on December 1, 1979. Dr. Clifford gave an admit diagnosis for Daney of "Lumbar Disc Herniation" and a discharge diagnosis of "Lumbar Disc Rupture." Dr. Clifford determined that Daney showed significant improvement in his symptoms from this treatment, but advised Argonaut that he "is still considered disabled and unable to work at this time."

Dr. Clifford saw Daney on December 7, 1979. He observed that "his complaints appear to be very slowly resolving", and that Daney had "very minimal paraspinous muscle spasm ..." and a "good range of motion." Dr. Clifford again saw Daney on December 14, 1979. He observed that his "complaints are very slowly subsiding" and "advised him to remain on diminished activity but increasing the amount of bending, stooping and squatting he does over the next month...." Dr. Clifford again saw Daney on January 14, 1980. He observed that Daney's "complaints have remained essentially unchanged...." Dr. Clifford at that time felt that "we should proceed with the myelogram to determine what exactly is going on here. I discussed this with Mr. Daney and arrangements are being made for his admission to the hospital in the very near future."

Daney was again seen by Dr. Clifford on February 4, 1980, and his complaints were essentially the same. At that time, an EMG was performed by Dr. Levert and those findings were "compatible with, but not diagnostic of, left S-I radiculopathy." Dr. Clifford reported to Argonaut that he was encouraging Daney "to accept hospitalization for performance of a myelogram ..." and that "[A]rrangements are being made for his admission to the Baton Rouge General Hospital in the near future and we will keep you posted as to the findings on myelography." ² In his report of January 28, 1981, Dr. Clifford indicated that Daney "did not keep any follow-up visits and was not seen again until the 28th of January, 1981, ...."

On March 12, 1980, Daney was examined by Dr. Richard W. Levy. He gave a history of bending over pulling on iron bars and hurting his low back in March of 1979. ³ Daney advised Dr. Levy that he stopped working at that time and returned to Toledo, Ohio, where he was hospitalized and a myelogram and an EMG were done. Daney advised Dr. Levy that after treatment in Toledo, he was advised that he could return to work and in October of 1979, he did so. Daney further advised Dr. Levy that he worked for about one week, whereupon on October 13, 1979, he reinjured his back and was referred to Drs. Thomas and Clifford. Daney denied at that time having had a prior back injury and gave complaints of pain in the low back going into the left leg. Dr. Levy examined Daney and found no paraspinal muscle spasm in the lumbar region, that he was able to bend forward to 85 degrees and that backwards bending and lateral...