DeGruy v. Pala, Inc.

• Decision Date: 19 April 1988
• Docket Number: No. 87,87
• Citation: 525 So.2d 1124
• Parties: Harold Joseph DeGRUY v. PALA, INC. and Aetna Life and Casualty Company. CA 0139. 525 So.2d 1124
• Court: Court of Appeal of Louisiana — District of US

Page 1124

525 So.2d 1124

Harold Joseph DeGRUY v. PALA, INC. and Aetna Life and Casualty Company.

No. 87 CA 0139.

525 So.2d 1124

Court of Appeal of Louisiana,

First Circuit.

April 19, 1988.

J. Paul Demarest, New Orleans, for plaintiff-appellant, Harold Joseph dEgruy.

R. Michael Caldwell, Baton Rouge, for defendant-appellee, Pala, Inc.

George S. Lovett, Baton Rouge, for third party plaintiff, Aetna Life and Casualty, appellee.

Before WATKINS, CARTER and FOIL, JJ.

WATKINS, Judge.

Plaintiff, Harold Joseph DeGruy, appeals from a trial court decision in favor of the defendant, Pala, Inc. (Pala) and their insurer, Aetna Life and Casualty Company, dismissing the plaintiff's suit for worker's compensation benefits, penalties and attorney's fees at his costs. The plaintiff asserts that he became disabled by an on-the-job aggravation of a preexisting non-disabling injury. The trial court found that the plaintiff failed to meet his burden of proof in establishing that his injury was the result of an accident which occurred while he was employed by the defendant, Pala.

Mr. DeGruy, a 54 year old male, alleges an on-the-job injury while working as a millwright at the Borden Chemical Plant located in Geismar, Louisiana on November 19, 1984. He had worked as a millwright at the Borden Plant approximately twelve (12) years prior to his leaving the job on December 14, 1984.

Mr. DeGruy first complained of an on-the-job injury in October of 1981. At the time of his 1981 injury, Mr. DeGruy was employed by Terotechnology, a maintenance contractor at the Borden Chemical Plant. ¹ The record reflects that he injured himself while pulling on a wrench at the jobsite. After his injury, Mr. DeGruy consulted several physicians, including an orthopedist. As a result, he was prescribed daily whirlpool therapy for a two-week period and Motrin 600 which he took three times daily. Dissatisfied with the prospect of taking this amount of medication on a daily basis, Mr. DeGruy eventually began receiving treatments from Dr. Phillip Smith, a chiropractor. These treatments began on April 17, 1982, and continued on a regular basis throughout 1982, 1983, 1984 and 1985, all due to recurring pain in his lower back. The record shows that Dr. Smith treated the plaintiff 149 times for lower back pain from April of 1982 until November of 1984.

The medical bills resulting from that injury including those of Dr. Smith, were paid by Terotechnology's compensation carrier until June of 1984. ² Mr. DeGruy did not stop working after the 1981 injury, and drew no worker's compensation benefits as a result of that injury. However, he occasionally missed a day of work in order to consult a physician.

During the month of April 1983, the maintenance contract at the Borden Chemical Plant was divided between Terotechnology and the defendant Pala. As a result of this change, Mr. DeGruy became an employee of Pala and was in fact a Pala employee at the time of the alleged accident/accidents which are the basis for this lawsuit. Mr. DeGruy asserts that on or about November 8, 1984, and again on November 19, 1984, he injured his back while lifting valve covers at the plant site. He further contends that these injuries to his back have left him temporarily totally disabled from practicing his normal trade as a millwright. Pala contends that the plaintiff's injury was merely a flare-up of his preexisting injury and that the evidence does not support a finding of disability.

Mr. DeGruy testified that after his 1981 injury he remained on anti-inflamatory medication except for a two month period. He stated that between the medication and chiropractic treatments he was able to perform his normal work duties with little or no pain, until he reinjured his back in November of 1984. He stated that on or about November 8th and on the 19th he was performing valve changes on a compressor and while lifting the valves he experienced back pain on each occasion. After the November 8th incident, Mr. DeGruy noticed that the medication he was taking was no longer helping the pain. Later that month, on the 19th of November, he was performing a similar valve change and experienced intense pain in his back and on the right and left sides of his groin. Mr. DeGruy stated that up until the November 19th incident he only experienced pain in his back, groin and right leg, but after the November 19th incident he experienced pain on both sides of his body, his back pain had intensified and his medication was no longer alleviating the pain.

John Edward Martin, a co-worker employed by Pala in 1984, testified that he recalled Mr. DeGruy suffering an injury in November of 1984 when the two of them were changing a valve cover. He stated that Mr. DeGruy hurt his back and that he could not straighten up for a while afterward.

Immediately following the November 19th incident, Mr. DeGruy reported to the first aid station and requested muscle relaxants to help alleviate the pain. Twelve pabalate tablets were prescribed and a report of the injury was made stating that Mr. DeGruy "aggravated old injury to back by lifting valve covers." The injury was subsequently reported to Mr. DeGruy's foreman, Charlie Sanchez, and to his supervisor, Elroy Phillip Kraemer. Mr. DeGruy continued working in pain until December 14, 1984. On that date he arrived at work and told his foreman that he was in real bad pain and needed to see his chiropractor. He returned to work after his chiropractic treatment still experiencing severe pain. Later that day, while being examined by the company doctor, ³ he requested some other type of medication because his previous medication was no longer providing relief. Mr. DeGruy took the new medication and after receiving no relief he left work and has been unable to return since.

Elroy Phillip Kraemer testified in his deposition that he was notified of Mr. DeGruy's accident on November 19, 1984, and that he had reported it to Pala's maintenance manager, Mr. Harry Accardo. He also stated that prior to December of 1984 Mr. DeGruy had worked continuously since his 1981 injury with the exception of occasional time off for doctors' appointments and medical testing.

After leaving Pala, Mr. DeGruy continued to have persistent back pain and was unable to get relief from his medication and chiropractic treatments. He was advised by his counsel to seek medical attention. Thereafter, he was examined by Dr. Ray Haddad, an orthopedic surgeon, on December 26, 1984. The history related to Dr. Haddad was that Mr. DeGruy had injured his back in October of 1981 and had been under continuous treatment since then. No mention was made, according to Dr. Haddad, of any other incident or accident. X-rays were taken of his pelvis and lumbosacral spine which revealed some old spurring anteriorally at the level of L-3 and L-4. Other than that, there were no particular findings except hamstring tightness on both sides at about 20 degrees. The doctor's impression was that Mr. DeGruy had sustained a lumbosacral sprain and that he did not think he had any significant nerve root irritation. The doctor prescribed Williams exercises for the lower back and abdomen and told him to continue his medication. He further stated that he would advise Mr. DeGruy to return to work and "avoid any heavy stuff."

Mr. DeGruy was also examined on January 3, 1985 by Dr. Patricio H. Mujicia, a neurosurgeon, who also recorded a history of his back problems similar to that described by Dr. Haddad. Again, no mention was made of any specific incident or accident occurring in November of 1984. After a physical examination, the doctor's impression was that Mr. DeGruy had a chronic lumbosacral strain. In order to rule out the possibility of a herniated lumbar disc, the doctor ordered a CT Scan and electromyelograph. Although the CT Scan revealed a concentric bulging annulus at L-3, L-4 and L-5, with no apparent narrowing of either the central canal or nerve foramina, the doctor interpreted the examination as normal. The doctor stated that from a neurological standpoint he would not place any restrictions on Mr. DeGruy's work. He also recommended that Mr. DeGruy see an orthopedic surgeon since he could not find any neurological problems. When asked why he made that recommendation he stated: "I could not find any neurological problems and there aren't too many other things that can produce this kind of pain. I thought, as I mentioned that it was a chronic lumbosacral strain, which has to do more with muscles, ligaments and joints, and I thought he should be evaluated by a bone doctor."

Further evaluation of Mr. DeGruy's problem was conducted by Dr. Richard E. Robichaux, Jr., an orthopedist, on March 13, 1985. The history related to Dr. Robichaux was similar to that given to Dr. Haddad. Dr. Robichaux was unable to recall whether Mr. DeGruy mentioned a specific reinjury in November of 1984. Although Dr. Robichaux took x-rays of Mr. DeGruy, he declined to perform a physical examination, but rather deferred to the findings of Dr. Mujicia and Dr. Haddad. He felt that he would not have anything to add to their previous examinations. He further stated that Mr. DeGruy's complaints were legitimate and he recommended that if the pain persisted that he should first try a T.N.S. unit (a transcutaneous nerve stimulator) and then perhaps be referred to a pain clinic. He also suggested possible vocational rehabilitation training.

Upon Dr. Robichaux's advice, Mr. DeGruy tried a T.N.S. unit for two months, which he described as an electronic shocking device. He stated that after a brief period of relief he was again unable to stop his back pain.

Still in pain and without financial resources, Mr. DeGruy sought help from the VA hospital in September of 1985. He was seen by Dr. Roy Marrero, an orthopedic surgeon, on September 18, 1985. The patient history related to Dr. Marrero included both the 1981 injury and the November 1984 reinjury. Mr. DeGruy was...