Hammond v. Fidelity & Cas. Co. of New York

Citation419 So.2d 829
Decision Date07 September 1982
Docket NumberNo. 82-C-0326,82-C-0326
CourtSupreme Court of Louisiana
PartiesJohnny HAMMOND v. FIDELITY & CASUALTY COMPANY OF NEW YORK.

Louis D. Bufkin, McHale, Bufkin & Dees, Lake Charles, for applicant.

John S. Bradford, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, for respondents.

DIXON, Chief Justice.

We granted writs in this case to review the holding of the courts below that relator's "... present disability is not causally related to the employment accident he suffered on June 8, 1979." Hammond v. Fidelity & Casualty Co. of New York, 407 So.2d 13, 14 (La.App.1981). Both courts found that plaintiff's disability was caused by the operation to remove a cancerous tumor (which was discovered after an on-the-job accident) and not by the work related accident.

On June 8, 1979, while driving a truck performing his duties on the job, plaintiff seriously bruised his upper left arm in the spokes of the steering wheel of the truck when a front wheel dropped in a hole. After work he went to the hospital because of the pain and swelling; the injury was diagnosed as a suspected hematoma (a tumor or swelling containing blood, Merriam-Webster's Third New International Dictionary). Hammond was released and told to apply ice to the affected area.

Plaintiff returned to work for Morgan Crop Service the next day in spite of the pain and swelling he was experiencing. He remained in their employ until he left to go to work for Glasscock Drilling, for higher wages, near the end of the summer, despite the continual swelling and pain in his upper left arm, and the gradual loss of strength he testified he experienced.

Although the swelling of the arm subsided some within the first week after the accident, it began to swell again and did not thereafter subside. In August of 1979 plaintiff was forced to discontinue his employment with the drilling company because of the continued swelling, pain and loss of strength in his left arm. The testimony of the plaintiff and his wife establish that prior to the work related accident plaintiff had had no indication of any diseased condition in his arm; it appeared to be as normal as his right arm. There had been no weakness, no swelling and no manifestation of anything abnormal in the upper left arm.

After termination of his employment, the plaintiff consulted Dr. Gunderson, an orthopedic surgeon, upon the recommendation of Memorial Hospital, in August of 1979. Dr. Gunderson admitted plaintiff to the hospital and performed a biopsy on the swollen mass on September 14, 1979. Dr. Gunderson consulted with Dr. Gore, a cancer specialist (an internist with a subspeciality in cancer medicine or oncology). Dr. Gore physically examined the mass on the plaintiff's upper left arm and determined that the plaintiff had a malignant cancerous growth in his upper left arm; the pathologist's report on the biopsy confirmed this determination by finding that the neoplasm was a sarcoma (a malignant new growth or tumor of connective tissues). 1 Dr. Gunderson then referred plaintiff to Dr. Romsdahl, a general surgeon who does musculoskeletal tumor work at M. D. Anderson Hospital in Houston, Texas. The biopsy specimen was examined and found to be a sclerosing neoplasm (a new growth forming scar tissue or fibrous tissue). On October 10, 1979, Dr. Romsdahl removed the tumor and the surrounding muscle by making a wide excision. The histological classification of the tumor after its removal was that it was an undifferentiated sarcoma; meaning a sarcoma whose tissue origin cannot be identified or is unknown. After the operation the plaintiff received cobalt therapy at M. D. Anderson Hospital, and he presently continues this cobalt therapy at St. Patrick's Hospital in Lake Charles.

Because of the tumor and the necessity for its removal, the plaintiff is disabled. He suffers continual pain in his upper left arm and he has lost substantially all strength in that arm. Therefore he can no longer perform the type of manual labor he was able to do prior to the work related accident. Plaintiff has only a sixth grade education.

Under our workmen's compensation statute, the plaintiff-employee is entitled to benefits if he "... receives personal injury by accident arising out of and in the course of his employment ..." R.S. 23:1031. Both the trial court and the court of appeal held that the total and permanent disability suffered by the plaintiff was not causally connected to the employment accident; that the medical evidence indicated that the trauma did not cause the cancerous mass and that the medical evidence was sufficient to rebut the presumption in favor of the plaintiff.

The plaintiff-employee in a workmen's compensation case bears the burden of establishing the causal connection between the disability and the employment accident by a reasonable preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974). Nevertheless, it is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover. The complaint need show only by a preponderance of the evidence that the work accident caused the disability. Allor v. Belden Corp., 393 So.2d 1233, 1236 (La.1981); Lucas v. Insurance Company of North America, 342 So.2d 591, 595 (La.1977). "... Furthermore, medical testimony 'must be weighed in the light of other credible evidence of a nonmedical character, such as a sequence of symptoms or events in order to judicially determine probability' ..." Schouest v. J. Ray McDermott & Co., 411 So.2d 1042, 1044-45 (La.1982).

A plaintiff-employee's disability will be presumed to have resulted from an employment accident if before the accident the plaintiff-employee was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition. Allor v. Belden Corp., supra at 1236; Lindsey v. H. A. Lott, Inc., 387 So.2d 1091, 1092 (La.1980); Lucas v. Insurance Company of North America, supra at 596; Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 1146, 221 So.2d 816, 827-28 (1969). This presumption is not a conclusive one; rather, it compels the defendant to come forward with sufficient contrary evidence to rebut it. Allor v. Belden Corp., supra at 1236.

As the facts related above illustrate, the plaintiff did not suffer from any apparent disabilities or abnormalities in his upper left arm until he experienced the mechanical trauma to that portion of his left arm. Almost immediately after the trauma the plaintiff began experiencing the symptoms of swelling and pain in the same region of his upper left arm where he had sustained the mechanical trauma. Although the symptom of swelling subsided within the first week, it did not totally disappear and it continuously manifested itself until the swollen mass was removed by the wide excision. The plaintiff continues to suffer from an aching pain in this area. Additionally, the evidence, both medical and nonmedical, shows that there is a reasonable possibility of causal connection. Specifically, Dr. Gore, the oncologist, in a letter 2 and in his testimony 3 indicated that there was a possibility that the trauma caused the tumor to hemorrhage internally resulting in a manifestation of the tumor not previously experienced. He felt that the tumor was preexisting, but was sub-clinical (not perceivable by a layman or a doctor upon physical examination) prior to the trauma. The fact that a condition is preexisting does not preclude recovery for the disabled employee; the employer takes the employee as he is, and the fact that the disease alone might have disabled the employee in its ordinary course of progress is not the inquiry. The employee's disability is compensable if a preexisting disease or condition is activated or precipitated into disabling manifestations as a result of a work accident. Allor v. Belden Corp., supra at 1236; Johnson v. The Travelers Insurance Co., 284 So.2d 888, 891 (La.1973); Behan v. John B. Honor Co., 143 La. 348, 351, 78 So. 589, 590 (1917). The sequence of events and Dr. Gore's letter and testimony establish a reasonable possibility of causal connection between the accident and the disabling condition.

The lower courts based their decisions upon the assertions of Dr. Gunderson, Dr. Gore and Dr. Romsdahl that in their opinion a trauma could not cause a tumor and that trauma would have no effect upon the eventual progression of the disease. The lower courts believed that the medical evidence was sufficient to deny compensation. They failed to distinguish the "medical" meaning of cause from the "legal" meaning of cause. 4 When the doctors speak of cause they are essentially speaking of etiology--the origin of disease; what initially causes a disease. When courts and lawyers speak of cause they are concerned with the question of whether the particular incident in question contributed to the plaintiff's disability by making manifest symptoms previously unnoticed. "Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence." Haughton v. Fireman's Fund American Insurance Companies, 355 So.2d 927, 928 (La.1978).

Furthermore, "[i]t is immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standards of accidental injury is a disabling factor...." Parks v. Insurance Company of North America, 340 So.2d 276, 281 (La.1976). See Allor v. Belden Corp., supra at 1237; Bertrand v. Coal Operators Casualty Co., supra.

As in Haughton v. Fireman's Fund, supra, there is no separate, intervening cause of the worker's disability in this case. Haughton...

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