Ellis v. Rapides Parish School Bd.
| Decision Date | 31 August 1982 |
| Docket Number | No. 82-34,82-34 |
| Citation | 419 So.2d 990 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Theodore ELLIS, Plaintiff & Appellant, v. RAPIDES PARISH SCHOOL BOARD and Hartford Casualty Insurance Company, Defendants & Appellees. |
Broussard, Bolton & Halcomb, Frank R. Bolton, Jr., Alexandria, for plaintiff-appellant.
Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.
Before CULPEPPER, FORET and STOKER, JJ.
This is a workmen's compensation case. Plaintiff seeks benefits for total and permanent disability and statutory penalties and attorney's fees. From a judgment dismissing his suit, plaintiff appeals.
The issues are: (1) Was plaintiff disabled beyond February 2, 1979, the date compensation payments were terminated? (2) Is plaintiff entitled to penalties and attorney's fees?
It was stipulated at trial that the plaintiff, Mr. Ellis, suffered an accident within the course and scope of his employment as a janitor with the Rapides Parish School Board. Hartford Accident & Indemnity Company, as insurer of the School Board, paid compensation benefits from August 15, 1978, the date of the accident, through February 2, 1979, and paid all medical and travel expenses for that period of time.
The accident occurred while Mr. Ellis was engaged in arc-welding, standing atop a metal extension ladder. He received an electrical shock and fell, catching his right leg in the extension ladder rope. The rope broke the fall somewhat, causing the plaintiff to hang upside down for a short period of time until extricated by fellow workers.
Initial treatment was rendered to the plaintiff at the Rapides General Hospital emergency room. A week later, he went to see a general practitioner, Dr. Grover Bahm, who saw him three times and referred him to Dr. Douglas Gamburg, an orthopedic surgeon. Plaintiff's complaints were of lower back pain, numbness of the right leg, and mild or dull headaches.
The plaintiff was further referred to a neurosurgeon, Dr. Babson Fresh, who saw him on three occasions. The last examination by Dr. Fresh took place on January 19, 1979, at which time Dr. Fresh recommended that plaintiff return to work in a week or two. The defendant Hartford thereafter discontinued Mr. Ellis' compensation benefits effective February 2, 1979.
After his discharge by Dr. Fresh, the plaintiff then saw Dr. Austin Gleason, an orthopedic surgeon in Shreveport. In July, 1979, Dr. Gleason, in consultation with a neurosurgeon, Dr. Don Smith, performed a battery of tests on the plaintiff, including a myelogram and a bone scan, all of which were negative.
Dr. Gleason then referred plaintiff to Dr. Christopher Burda, a rheumatologist. Dr. Burda examined the plaintiff three times, last seeing him on November 28, 1979. From January through December, 1980, the plaintiff was treated for his complaints by Dr. Robert Ourso, Jr., employed by the Rapides Parish Police Jury, to provide medical services for the inmates of the Rapides Parish jail. Plaintiff was incarcerated there and later pled guilty on a charge of second degree murder. Dr. Ourso testified that he saw Mr. Ellis approximately six times during this period and treated him symptomatically, but did not examine him.
The trial court held in written reasons that the lay testimony and limited findings of Dr. Burda were far outweighed by the findings of the other doctors.
The first issue before us is whether the trial court erred in finding that the plaintiff was not entitled to benefits for disability.
The appellant's basic complaint appears to be that the trial court gave insufficient consideration to the testimony given by Dr. Burda and Dr. Ourso.
Dr. Burda is a rheumatologist, specializing in the treatment of arthritis and related illnesses. The plaintiff was referred to him to rule out the possibility of an arthritic condition in his back. There was no indication of any type of arthritis. All of the clinical examinations performed were negative in result except for a finding of limitation of motion of the lumbar spine. This conclusion was based on the complaint of pain in the straight leg raising test. Dr. Burda stated that his guess would be that Mr. Ellis could return to his previous job in six to twelve months from his last visit on November 28, 1979, and he further stated that he felt the plaintiff had a five to ten per cent partial permanent disability.
Dr. Robert J. Ourso, Jr. is a psychiatrist at Central State Hospital. He treated the plaintiff, however, in his separate capacity as general staff physician for the inmates of the Rapides Parish jail, where plaintiff was incarcerated. Dr. Ourso testified that he saw the plaintiff approximately six times in 1980, and his complaints were always consistent. However, he also testified that he did not really examine the plaintiff, but merely listened to his complaints and treated him symptomatically, prescribing muscle relaxants. He had no direct knowledge of plaintiff's difficulties, if any, in doing the work assigned to him, and his opinion as to plaintiff's disability was based strictly on the plaintiff's subjective complaints.
The lay testimony of plaintiff's wife and two inmates of the Rapides Parish jail was offered to establish that the plaintiff's complaints were consistent with pain and discomfort in his lower back.
On the other hand, also introduced into evidence were the depositions of two orthopedic surgeons, Dr. Douglas L. Gamburg and Dr. Austin W. Gleason, and a neurosurgeon, Dr. C. Babson Fresh, and the report of another neurosurgeon, Dr. Don Smith. None of these doctors was able to find any objective or clinical evidence of any accident-related disability after February 2, 1979. They all concurred in diagnosing the plaintiff's injury as musculoligamentous strain, and were of the opinion the plaintiff had no residual disability which would prevent him from returning to work as a janitor. Drs. Gleason and Smith worked together in consultation to perform a complete workup of tests on the plaintiff, but all results were negative, and there was no objective evidence of any continuing disability. They felt the plaintiff's continued complaints were more likely the results of muscular tension, and, after ruling out a ruptured disc, found that plaintiff could return to gainful employment.
It should be noted that the...
To continue reading
Request your trial
-
Jones v. Progressive Sec. Ins. Co., 16–463
...the particular field of the specialist. Martin v. Emerson Elec. Co., 437 So.2d 910 (La.App. 2 Cir.1983) ; Ellis v. Rapides Parish School Board, 419 So.2d 990 (La.App. 3 Cir.1982).Clark v. State Farm Ins. Co. , 520 So.2d 860, 864 (La.App. 3 Cir. 1987). Because Dr. Williams' testimony by way ......
-
Jones v. Progressive Sec. Ins. Co.
...field of the specialist. Martin v. Emerson Elec. Co., 437 So.2d 910 (La.App. 2 Cir.1983); Ellis v. Rapides Parish School Board, 419 So.2d 990 (La.App. 3 Cir.1982).Clark v. State Farm Ins. Co., 520 So.2d 860, 864 (La.App. 3 Cir. 1987). Because Dr. Williams' testimony by way of his deposition......
-
Tezeno v. Young, 19-046
...physician. Furthermore[,] a Specialist in a given field is given more weight than a general practitioner. [Ellis v. Rapides Parish School Bd., 419 So.2d 990 (La.App. 3 Cir. 1982)]. Applying the law as cited above[,] this court finds that the August 2015 accident caused an aggravation of pla......
-
Reed v. Arthur
...should be given more weight than that of the doctor who examines the plaintiff for diagnosis purposes only. Ellis v. Rapides Parish School Board, 419 So.2d 990 (La.App. 3d Cir.1982). The plaintiff also testified that his nose had become crooked because of the accident, but this testimony wa......