Finley v. Hardware Mut. Ins. Co.

• Decision Date: 23 March 1959
• Docket Number: No. 43710,43710
• Citation: 110 So.2d 583,237 La. 214
• Parties: Roy E. FINLEY v. HARDWARE MUTUAL INSURANCE COMPANY et al.
• Court: Louisiana Supreme Court

Page 583

110 So.2d 583

237 La. 214

Roy E. FINLEY v. HARDWARE MUTUAL INSURANCE COMPANY et al.

No. 43710.

Supreme Court of Louisiana.

March 23, 1959.

Rehearing Denied April 27, 1959.

Booth, Lockard, Jack & Pleasant, Shreveport, for plaintiff-appellant-relator.

Cook, Clark, Egan, Yancey & King, Shreveport, for defendants-appellees-respondents.

McCALEB, Justice.

This is a suit for workmen's compensation. Plaintiff, an automobile mechanic, suffered a back injury on December 1, 1955 during the course and scope of his employment with Williamson Motors, Inc. of Vivian, Louisiana when the weight of a motor block assembly, which he was engaged in loading into the trunk of an automobile, was shifted onto his left leg and back. Despite the fact that he experienced considerable pain in his lower back, plaintiff continued to work until December 7th, at which time, he visited Dr. H. W. Garrett of Vivian for treatment. A complete physical and clinical examination was made by the doctor and, on December 16th, he reported to the compensation insurer of plaintiff's employer (the other defendant in the case) that plaintiff was suffering from an acute back sprain and spasm of the left recti muscles. On January 18, 1956 the doctor sent another report to the insurer which disclosed office visits of plaintiff on December 7, 9, 12, 15 and 26, 1955 and on January 15, 1956. This report set forth that plaintiff had been discharged on January 15th but indicated that the patient still complained of soreness in the region of the left inguinal canal.¹

Meanwhile, about a week after the accident, plaintiff was discharged by Williamson Motors, allegedly for talking to customers and loafing on the job. On January 2, 1956, he obtained similar employment, as an automobile mechanic, with Blaine Chevrolet Company of Jefferson, Texas and commuted some 60 miles each day by automobile from and to Vivian, where he lived, and his place of employment. When plaintiff applied to the Blaine Company for this position, he deliberately withheld information concerning his prior injury because (according to his testimony) he felt that a disclosure would prevent him from securing employment.

On March 20, 1956 plaintiff returned to Dr. Garrett for treatment to his back. Another examination was made and, in his report to defendant insurer, the doctor again stated his findings of acute back sprain and spasm of the left recti spine muscles. At the trial, the doctor testified that, prior to this visit, he was of the opinion that plaintiff had recovered sufficiently to assume his duties but he felt sure that the accident in December was still the cause of plaintiff's suffering; that the back injury had progressed to a herniation of a disc at the fifth lumbar level and that the initial injury would later result in a protrusion of the disc. In view of this diagnosis, Dr. Garrett secured an appointment for plaintiff with Dr. Roy King of Shreveport, Louisiana, an orthopedic specialist. However, plaintiff never kept the appointment due to a lack of communication as to the time thereof.

On May 2, 1956, Dr. Garrett submitted a surgeon's final report and bill to defendant insurer for the March 20th visit, stating that the case had been reopened on that date and it was concluded under the heading 'Remarks' that 'Patient did not return for further treatment, we presume he recovered'. No mention was made in this report of the fact that plaintiff had been referred to Dr. King but Dr. Garrett explains in his testimony that this was unnecessary as Dr. King would undoubtedly submit a direct report to defendant.

After working hours on June 15, 1956, plaintiff was salvaging some automobile tires which had been discarded by his employer at Jefferson, and experienced a 'catch' in his back while picking up one of the inner tubes. Severe pain ensued and, on June 17th, he consulted Dr. Garrett, who made findings similar to those of March 20th and again referred plaintiff to Dr. King, the orthopedic specialist. The latter examined plaintiff on June 22nd and on the same date mailed his findings to defendant insurance company. Dr. King diagnosed the injury to be a protruding intervertebral disc at the fifth lumbar level and put plaintiff in a Williams type back brace. Shortly thereafter, plaintiff was forced to quit his job at Blaine Chevrolet Company. He was examined and treated by Dr. King on several occasions up to and including November 12, 1956 and is unquestionably suffering from a ruptured disc, which admittedly has totally and permanently disabled him from doing work of any reasonable character.

The theory of plaintiff's case is that his present condition is solely attributable to the accident of December 1, 1955, when he received the back injury due to the shifting onto his body of the heavy motor assembly block.

Defendants' position is that plaintiff was only incapacitated five weeks as a result of the accident of December 1, 1955; that he returned to work for another employer and performed his duties successfully and without pain until June 15, 1956, when he had another accident, which was wholly disconnected with the first one, and that, in such circumstances, no further recovery can be had for the first occurrence.

The district judge rejected plaintiff's demand and his judgment was affirmed by the Court of Appeal, Second Circuit. That tribunal reached the conclusion that, where an employee has sustained an injury, which does not initially render him totally incapacitated to do work of reasonable character and he demonstrates, following the injury, that '* * * he was able to and did without pain, discomfort or handicap, perform the same work continuously for six months, * * *', he will not be considered disabled from that injury, even though he subsequently became totally disabled, notwithstanding the opinion of medical experts that the disability is solely attributable to the original accident. See La.App., 96 So.2d 238, 241. We granted certiorari to review this ruling.

From the foregoing statement of the history of plaintiff's injury it is seen that this case presents for decision a single question of fact--whether plaintiff's present permanent disabilty is attributable to the injury he sustained on December 1, 1955 while in the employ of Williamson Motors, Inc.?

An examination of the record makes an affirmative conclusion inescapable. First and foremost, the medical testimony is unqualified that plaintiff sustained a herniated intervertebral disc as a result of the accident of December 1, 1955; that this injury was of such a nature that the disc was liable to protrude or rupture in the ordinary course of events, irrespective of plaintiff's activity; that the occurrence of the rupture on or before June 15, 1956 was the expected consequence of the original injury and that the protrusion could have happened at any time, even while plaintiff was combing his hair or brushing his teeth.²

Confronted with this unanimity of medical opinion, defendants sought to offset its effect by the evidence of various employees who worked with plaintiff at the Blaine Chevrolet Company in Jefferson. These men testified that plaintiff performed his work...