Delco v. Heritage Manor Nursing Home

• Decision Date: 09 November 1983
• Docket Number: No. 83-248,83-248
• Citation: 441 So.2d 309
• Parties: Virgie DELCO, Plaintiff-Appellee, v. HERITAGE MANOR NURSING HOME, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 309

441 So.2d 309

Virgie DELCO, Plaintiff-Appellee, v.HERITAGE MANOR NURSING HOME, et al., Defendants-Appellants.

No. 83-248.

Court of Appeal of Louisiana Third Circuit.

Nov. 9, 1983.

Writ Denied Jan. 6, 1984.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara, Abell, John F. Wilkes, III, Lafayette, for defendants-appellants.

Privat & Regan, Thomas K. Regan, Crowley, for plaintiff-appellee-appellant.

Before FORET, STOKER and YELVERTON, JJ.

STOKER, Judge.

This is a workmen's compensation suit.Plaintiff, Virgie Delco, instituted this action against her employer, Heritage Manor Nursing Home, and its workmen's compensation insurer, Ranger Insurance Company, seeking to recover compensation benefits, penalties and attorney's fees as a result of accidents occurring on September 14, 1981 and October 7, 1981.On those dates, plaintiff was a nurse's aide employed by Heritage Manor Nursing Home (Heritage Manor) in Crowley, Louisiana.The trial court held that the defendants were liable to the plaintiff for workmen's compensation benefits, penalties and attorney's fees.From that adverse judgment, the defendants bring this appeal.The plaintiff answers the appeal seeking an increase in attorney's fees to cover the cost of defending this appeal.The parties have stipulated that on the dates in question Mrs. Delco was employed by Heritage Manor, and was attending to her regular duties in the course and scope of her employment.They have also stipulated to the amount of compensation as being $86.28 per week.

There are two issues on this appeal: (1) whether the trial court erred in finding that Mrs. Delco's injuries and her consequent disability were employment related, and (2) whether the trial judge erred in finding that Heritage Manor and its compensation insurer were arbitrary and capricious in their termination of workmen's compensation and medical benefits.We amend and affirm.

FACTS

In the initial accident on September 14, 1981, plaintiff injured her back while lifting a patient onto a bed.She was treated by Dr. Murray Brown, and after a period of approximately two weeks she returned to work performing only light duties.Approximately one week later, on October 7, 1981, Mrs. Delco re-injured herself when she had to assist in lifting an overweight patient who fell.Mrs. Delco contends that this activity re-injured her back and aggravated a pre-existing gynecological problem, resulting in her total disability.She has not returned to work since this second accident.

After re-injuring herself on October 7, 1981, plaintiff returned to Dr. Murray Brown for further treatment.She complained of a back injury with radiating pain down her right thigh.Dr. Murray Brown kept Mrs. Delco out of work and continued to treat her until November 9, 1981, when he referred her to Dr. James McDaniel, an orthopedic specialist, for further evaluation and treatment because of lack of improvement in her condition.

On December 7, 1981, Dr. James McDaniel began treating Mrs. Delco for pain in her lower back and lower right leg.Because of minimal objective evidence of injury, she was treated conservatively with anti-inflammatory medication and an exercise program.Dr. McDaniel continued to see Mrs. Delco on a regular basis.Her condition did not improve, and on January 25, 1982, he recommended that she be admitted to the hospital for a myelogram.Mrs. Delco was admitted to Our Lady of Lourdes Hospital, in Lafayette, on February 8, 1982, and a myelogram was performed the next day.The myelogram was found to be within normal limits.At this point, Dr. McDaniel concluded that Mrs. Delco's symptoms were not based on an orthopedic problem.However, he suspected from the localization of her symptoms that her problems might have been either genitourinary or gynecological.Dr. McDaniel referred her to Dr. Kenneth Brown, a gynecologist.Having found no orthopedic problems, Dr. McDaniel formally discharged Mrs. Delco from his care on March 11, 1982.

Dr. Kenneth Brown, who became the treating physician at this time, performed a gynecological examination on Mrs. Delco while she was still in Our Lady of Lourdes Hospital for the myelogram.He diagnosed her condition as uterine descensus or prolapse and concluded that the back pain was caused by the uterine prolapse.(At this time, Dr. Kenneth Brown was not aware that Mrs. Delco's medical history revealed that she had been diagnosed as having had uterine decensus or prolapse in 1976 by a Dr. Hawes.)Dr. Kenneth Brown concluded that the condition had been asymptomatic until the accidents on September 14, 1981, and October 7, 1981.He felt that the heavy lifting involved in these accidents caused the condition to become symptomatic resulting in Mrs. Delco's pain and disability.In his opinion a hysterectomy was necessary to correct the problem.Dr. Kenneth Brown had Mrs. Delco admitted to Lafayette General Hospital for the hysterectomy.Lafayette General Hospital called Ms. Lege, the representative of the compensation insurer who was responsible for handling Mrs. Delco's claim, for verification of compensation coverage on February 12, 1982.Ms. Lege denied the coverage.The hysterectomy was not performed.

Mrs. Lege stated that she denied coverage on February 12, 1982, because she was not aware at that time that Mrs. Delco had been referred to Dr. Kenneth Brown and because she thought that Mrs. Delco's problem was solely orthopedic in nature.Sometime shortly after February 12, Ms. Lege learned that Mrs. Delco had been referred to Dr. Kenneth Brown by Dr. McDaniel, and in a letter sent to Dr. Brown dated February 18, 1982, she requested a report concerning Mrs. Delco's condition and how it might be related to her job injuries.

In his report, dated February 25, 1982, Dr. Brown indicated that Mrs. Delco's back pain was caused by uterine prolapse.In a clarification letter to Dr. Brown dated March 3, 1982, Ms. Lege specifically asked whether Mrs. Delco's uterine prolapse was related to her on-the-job back injury.In his reply dated March 16, 1982, Dr. Brown stated, "Yes, increase intra-abdominal pressure from lifting heavy objects will stimulate uterine prolapse and backache."Prior to receiving Dr. Brown's reply, Ms. Lege received a report dated March 11, 1982, from Dr. McDaniel informing Ms. Lege that he had formally discharged Mrs. Delco because he felt that her symptoms were not based on an orthopedic problem.During the latter part of March, 1982, Dr. Brown again sought to admit Mrs. Delco for surgery.On March 23, 1982, Our Lady of Lourdes hospital contacted Ms. Lege to verify coverage for a hysterectomy and Ms. Lege denied coverage.

Ms. Lege terminated the workmen's compensation benefits at this time based on the fact that both Dr. Murray Brown and Dr. McDaniel had found no objective signs of orthopedic problems.All of Mrs. Delco's benefits, both compensation and medical, had been paid up until this time except for medical payments due Dr. Kenneth Brown.

In April, 1982, plaintiff filed this law suit.Shortly thereafter, the parties agreed to get a second opinion.On June 25, 1982, Mrs. Delco went to see Dr. Wallace Begneaud, Jr., a specialist in obstetrics and gynecology, for the purpose of getting a second opinion regarding the status of her gynecological system and more specifically to see whether or not he thought that the condition of her female organs materially affected her main complaint, which was a backache.Dr. Begneaud's opinions were issued in a report written on June 30, 1982.He reached three conclusions and diagnoses: (1) uterine descensus existed but it was not responsible for her complaints and was not severe enough to warrant surgery; (2)she had adenomyosis, a different gynecological problem which was partly responsible for her pain, and which could not be related to or caused by her work, and (3)she had myofascial syndrome (an orthopedic problem) which was partly responsible for her pain and which was definitely aggravated by her work and became symptomatic thereby.In his deposition, Dr. Begneaud testified that adenomyosis can be cured only by having a hysterectomy and the only way to accurately diagnose this condition would be through surgery.He stated that he would recommend a hysterectomy for this condition.

WAS MRS. DELCO'S DISABILITY CAUSED BY A JOB-RELATED INJURY?

In compensation casesthe plaintiff has the burden of showing that more probably than not an employment accident occurred and that it had a causal relation to the disability.Harris v. Louisiana-Pacific Corp., 420 So.2d 1220(La.App.3rd Cir.1982).A worker's pre-existing condition does not bar his recovery under workmen's compensation because the employer takes the worker as he finds him.Guillory v. U.S. Fidelity & Guaranty Ins. Co., 420 So.2d 119(La.1982).An employee's disability is compensable if a work-related accident aggravates or accelerates a pre-existing condition to produce disability.Cadiere v. West Gibson Products, Co., Inc., 364 So.2d 998(La.1978).

The question of whether there is a causal relationship between the disability and the employment is a question of fact.Moreau v. Houston General Ins. Co., 386 So.2d 151(La.App.3rd Cir.1980).A factual determination by the trial court should not be reversed unless the trial court was clearly wrong from an examination of the record as a whole.Arceneaux v. Domingue, 365 So.2d 1330(La.1978).

As a general rule, the treating physician's testimony should be given more weight than that of a doctor who examines a plaintiff for diagnosis only.Ellis v. Rapides Parish School Board, 419 So.2d 990(La.App.3rd Cir.1982).

The facts indicate that Mrs. Delco was diagnosed as having had uterine descensus or prolapse in 1976.Neither Dr. Kenneth Brown nor Dr. Begneaud dispute the fact that Mrs. Delco was predisposed to developing this condition.They both testified that her six (6) pregnancies, her obesity, and gravity in concurrence with...