Gauthier v. Helmerich & Payne Drilling Co.

• Decision Date: 22 July 1981
• Docket Number: No. 8266,8266
• Citation: 401 So.2d 692
• Court: Court of Appeal of Louisiana — District of US
• Parties: Adrian GAUTHIER, Plaintiff-Appellant, v. HELMERICH & PAYNE DRILLING CO. and Hartford Accident & Indemnity Company, Defendants-Appellees.

Page 692

401 So.2d 692

Adrian GAUTHIER, Plaintiff-Appellant, v. HELMERICH & PAYNE DRILLING CO. and Hartford Accident &

Indemnity Company, Defendants-Appellees.

No. 8266.

Court of Appeal of Louisiana, Third Circuit.

July 22, 1981.

John T. Bennett, Marksville, for plaintiff-appellant.

Trimble, Randow, Percy, Smith, Wilson & Foote, James T. Trimble, Jr., Alexandria, for defendant-appellee.

Before DOMENGEAUX, GUIDRY and CUTRER, JJ.

CUTRER, Judge.

Plaintiff, Adrian Gauthier, sued his employer, Helmerich & Payne Drilling Company (Helmerich) and its insurer, Hartford Accident & Indemnity Company (Hartford), for workmen's compensation benefits. The trial court found the plaintiff to be temporarily totally disabled from the date of his injury, March 29, 1980, through October 8, 1980, but rejected his demands for penalties and attorney's fees. Plaintiff appealed seeking total permanent disability and attorney's fees. Hartford answered the appeal contending the trial court erred in concluding that the plaintiff was disabled beyond August 13, 1980.

The issues on appeal are: (1) Whether the plaintiff is entitled to temporary total disability or is entitled to permanent total disability; (2) whether the trial court erred in rejecting the plaintiff's demands for penalties and attorney's fees; (3) whether the trial court erred in refusing to reopen the case for additional medical evidence; and (4) whether the trial court erred in refusing to grant the plaintiff a new trial.

On March 29, 1980, plaintiff was injured while engaged in a course and scope of his employment with Helmerich when he slipped, and fell and was struck on the head by a board. Plaintiff was wearing a hard hat at the time and, although he was "dazed," he was not rendered unconscious by the accident. He continued to work for his employer until April 1, 1980.

On April 2, 1980, plaintiff was examined by his family physician, Dr. Edmond J. Kalifey. Dr. Kalifey testified that plaintiff's x-rays were normal but he diagnosed a cervical strain. He examined plaintiff again on April 7, 1980, which examination revealed no change and, at plaintiff's father's request, referred him to Dr. C. W. Lowrey, an orthopaedic surgeon in Alexandria. Dr. Kalifey has not examined plaintiff since April 7, 1980.

Dr. Lowrey and his associate, Dr. Weiss, examined plaintiff on three occasions, April 15, May 13, and June 4, 1980. Dr. Lowrey diagnosed a "probable cervical and lumbosacral strain." Plaintiff testified that Dr. Lowrey discharged him because he did all he could do for him.

Plaintiff was also examined by Dr. Homer D. Kirgis, a neurosurgeon in New Orleans, Louisiana, on April 30, 1980. Dr. Kirgis' report reveals that plaintiff had suffered a mild cerebral concussion but had recovered by the time of the examination and that he suffered a straining injury of the neck and back. Dr. Kirgis was of the opinion that "his symptoms will clear in the relatively near future."

Subsequently, on the advice of his brother-in-law, plaintiff was examined by Dr. John M. Patton, a neurosurgeon in Alexandria, Louisiana. Dr. Patton's first examination on June 13, 1980, revealed no neurological abnormalities. However, because plaintiff complained of pain, Dr. Patton had a C-T scan conducted on June 18, 1980. The outcome of this test was essentially normal although it did reveal the possibility of an arteriovenous malformation (AVM), which is a congenital anomaly of the blood vessel and not trauma related. In order to rule out the possibility of an AVM, Dr. Patton had plaintiff undergo a four vessel cerebral angiogram on July 11, 1980; the results were completely normal.

On July 29, 1980, Dr. Patton's office was contacted by Hartford and, through his secretary, informed Hartford that plaintiff could return to work. This was confirmed by a letter from Dr. Patton to Hartford on August 25, 1980. Dr. Patton confirmed his earlier opinion the last time he examined plaintiff on September 20, 1980.

Prior to trial, plaintiff moved to be examined by a court-appointed physician. The motion was granted and the court appointed Dr. S. R. Abramson, a general practitioner, who examined plaintiff on October 8, 1980, the day before the trial of this case. Dr. Abramson testified that there was no serious pathological findings, that plaintiff experienced no pain during the examination and could return to work.

Plaintiff testified that strenuous activity produces headaches and pain in his arm and neck. He cannot mow his grass or work in his garden. This was harmonious with the testimony of Leroy Ardoin, plaintiff's brother-in-law.

The trial court concluded that plaintiff was totally disabled from the date of the accident through October 8, 1980, the day Dr. Abramson examined him. Plaintiff contends that the trial court erred in not finding him to be disabled after October 8, 1980.

It is well settled that a person is totally disabled if he would be subjected to substantial pain on returning to work. However, the employee must prove such disabling pain to a legal certainty and fair preponderance of the evidence. Whether or not he has carried this burden must be determined from the totality of the evidence, including both medical and lay testimony. Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975); Guidry v. Ford, Bacon & Davis Const. Corp., 376 So.2d 352 (La.App. 3rd Cir. 1979); Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923 (La.App. 3rd Cir. 1973).

In the instant case plaintiff was examined by two general practitioners, two orthopaedic surgeons and two neurosurgeons. None of these physicians could find any basis for the plaintiff's complaints after July 29, 1980. Dr. Patton, a neurosurgeon, saw the plaintiff five times and conducted extensive tests including x-rays, C-T scan and a angiogram. He concluded that plaintiff could return to work at least by July 29 1980, without enduring substantial...