Guillory v. Travelers Ins. Co.

• Decision Date: 20 August 1973
• Docket Number: No. 4219,4219
• Citation: 282 So.2d 600
• Parties: L. D. GUILLORY, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 600

282 So.2d 600

L. D. GUILLORY, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.

No. 4219.

Court of Appeal of Louisiana, Third Circuit.

Aug. 20, 1973.

Motion Denied Sept. 14, 1973.

Rehearing Denied Sept. 14, 1973.

Writ Granted Nov. 28, 1973.

Camp, Carmouche, Palmer, Carwile & Barsh by Robert P. Hogan, Lake Charles, for defendant-appellant.

Baggett, Hawsey, McClain & Morgan by William B. Baggett, Lake Charles, for plaintiff-appellee.

Before SAVOY, HOOD and CULPEPPER, JJ.

HOOD, Judge.

This is a workmen's compensation suit instituted by L. D. Guillory against Travelers Insurance Company, the defendant being the insurer of plaintiff's former employer, Combustion Engineering, Inc. Judgment was rendered by the trial court in favor of plaintiff, awarding him compensation benefits based on total and permanent disability, plus medical expenses, penalties and attorney's fees. Defendant has appealed.

The issues presented are: (1) Was plaintiff unreasonable in refusing the tender of surgery made by defendant? (2) Is Travelers liable for expenses incurred by plaintiff for physical therapy treatments? (3) Should defendant be condemned to pay penalties and attorney's fees? (4) Is Travelers entitled to credit for compensation benefits paid to plaintiff by other compensation insurers, because of subsequent injuries sustained by plaintiff while working for other employers?

Guillory was injured on August 12, 1971, while working for Combustion Engineering, Inc. A heavy board fell on him on that date, striking the left side of his head and his left shoulder. His injuries consisted of comminuted fractures of the left clavicle, a fracture of the left distal acromium, multiple contusions about the shoulder, neck and upper back, and a scalp laceration.

Plaintiff was hospitalized and treated for about one week immediately after that accident occurred. Following his discharge from the hospital, he continued to received medical treatment on an outpatient basis until February 9, 1972, when he was discharged by his treating physician, Dr. William Akins, as being able to return to work.

Dr. Akins examined plaintiff again on March 13, 1972, because of his complaints of continuing pain, and he determined at that time that the broken pieces of the collarbone had healed into two major fragments, but that there was no union between those fragments. He stated that such a condition can cause significant pain. He concluded that Guillory was disabled, and he recommended that he submit to surgery for the excision of the outer portion of the collarbone, from the site of the non-union of the fracture to the outside portion of the shoulder. Substantially the same type of surgery was recommended by another doctor who examined plaintiff later at the request of defendant.

The recommended surgery was tendered to plaintiff by Travelers on July 24, 1972, and on at least three other occasions shortly after that date. Guillory refused to submit to surgery, however, and upon application of defendant a rule was issued directing plaintiff to show cause why he should not be ordered to submit to the recommended surgery, under the penalty of forfeiting his right to further compensation benefits, with a credit to be allowed Travelers for compensation benefits paid from July 24, 1972, to date. That rule was referred to the merits and in due course the case was tried.

The trial judge concluded that Guillory was not unreasonable in refusing to submit to the recommended surgery. Defendant contends that the trial judge erred in reaching that conclusion.

In Desormeaux v. American Mutual Liability Insurance Co., 224 So.2d 198 (La.App. 3 Cir. 1969), we held that the following test should be applied in determining whether an injured employee should be required to submit to surgery, under penalty of forfeiture of compensation benefits:

(1) Can the treatment or surgery reasonably be expected to relieve the disability?

(2) Will it cause the claimant a minimum of danger to his life and a minimum of pain?

(3) Is there substantial agreement among all medical witnesses as to the necessity of the treatment or operation and the possibility that the disability will be cured without reoccurrence?

The record contains the testimony of three doctors who examined or treated plaintiff, all of whom are orthopaedic surgeons. They agree that plaintiff is disabled and that the surgery which was recommended is an accepted procedure for correcting or improving plaintiff's condition. The operation would have to be performed under a general anesthetic, but the doctors feel that the patient would be subjected to very little risk except that which is involved in performing surgery and in administering an anesthesia. All three of the medical experts also feel, however, that plaintiff will continue to have some pain and some disability following the performance of surgery, and they differ in their views as to whether plaintiff will be able to return to his former work, even if the operation is a success.

Dr. Akins does not classify the operation which he recommended as major surgery, although he states that it would be painful to plaintiff, and that he would continue to have some pain and weakness after the surgery. He feels that if the operation is a success, plaintiff would be relieved of from 90 to 95 percent of his present pain, but that he would have some restriction of motion and some reduction in strength of the shoulder. He estimated that plaintiff would have a resulting partial disability of from 10 to 15 percent, assuming that the surgery would be successful. He stated that he 'certainly could not guarantee within medical certainty whether the patient could become a high rigger again.'

Dr. J. W. Ambrister, who examined plaintiff on June 6 and on July 14, 1972, considered the operation to be major surgery, and he felt that it would be moderately painful to plaintiff. In his opinion, however, 85 percent of these operations are successful. He felt that plaintiff now has a 20 percent disability, and that after the operation he would have a permanent disability of about 10 percent. He feels that if the surgery should be successful, plaintiff would be able to resume his work as a boilermaker.

Dr. Norman P. Morin considered the recommended surgery to be of a major nature, and he feels that there is a substantial element of uncertainty as to whether it would be successful. With reference to the proposed operation, he stated that, 'It could certainly relieve a great bit of the pain, but on the other hand it's possible that it may not relieve much at all,' and that 'I am not so sure in my own mind that it would help him markedly; I feel rather certain we would help him some, but certainly not markedly.'

The varying opinions expressed by these examining and treating physicians indicate to us that there is not substantial agreement among all the medical witnesses as to the possibility that plaintiff's disability will be cured by means of the recommended surgery. We think the operation must be classified as major surgery, and that it will be accompanied by more than a minimum of pain. Under all of those circumstances, we agree with the trial court that plaintiff was not unreasonable in refusing the surgery which was tendered to him.

Guillory received physical therapy treatments at St. Patrick's Hospital, in Lake Charles, from February 2 to February 18, 1972, and the hospital submitted a bill in the amount of $162.00 for those treatments. Defendant has refused to pay this expense, because it contends that the treatments were administered for 'tension headaches,' having no relationship to the accident which occurred on August 12, 1971.

The therapy treatments were prescribed by Dr. William F. Foster, a neurologist to whom plaintiff was referred by Dr. Akins. Dr. Foster reported that on February 1, 1972, plaintiff complained of frequent pain in his left shoulder and daily headaches in the suboccipital area. He recommended physical therapy, and in his formal report to plaintiff's attorney he stated, 'I did recommend that he take out-patient physical therapy as this may improve the 'tightness' in his neck over the past three weeks. These appear to be 'tension headaches'.' In a later report the doctor stated, 'I do not believe that this patient's headaches were related to his shoulder injury . . .' On the basis of those reports, defendant contends that the physical therapy treatments were administered to plaintiff for conditions not caused by a work-related accident.

The record shows that Dr. Akins referred plaintiff to Dr. Foster because of plaintiff's complaints of headaches. In his report to plaintiff's attorney, Dr. Akins stated that 'his headaches were capatible with his injury.' Dr. Morin testified that since the muscles of plaintiff's neck were not functioning properly 'they will go into spasm and pain will result.' Dr. Foster prescribed the physical therapy to improve the 'tightness' in plaintiff's neck, and we are not convinced that by the other statements in his reports he meant that there was no connection between that condition and the accident. We believe that the 'tightness' he mentioned was the same condition which Dr. Morin referred to as 'spasm.'

The evidence convinces us that the pain which plaintiff was suffering, and for which the physical therapy was prescribed, was causally related to the accident. We find no error, therefore, in that part of the trial court's judgment which awards plaintiff the expense he incurred in obtaining the physical therapy treatments.

We turn now to the question of whether the trial court abused its discretion in awarding plaintiff penalties and attorney's fees.

The record shows that Travelers paid workmen's compensation benefits to plaintiff at the rate of $49.00 per week for 25 consecutive weeks, commencing August 19, 1971, and ending February 3, 1972. The payment of weekly benefits was resumed as of ...