Johnson v. Travelers Ins. Co.

• Decision Date: 23 December 1957
• Docket Number: No. 4525,4525
• Citation: 99 So.2d 372
• Court: Court of Appeal of Louisiana — District of US
• Parties: Winfred JOHNSON v. The TRAVELERS INSURANCE CO.

Page 372

99 So.2d 372

Winfred JOHNSON v. The TRAVELERS INSURANCE CO.

No. 4525.

Court of Appeal of Louisiana, First Circuit.

Dec. 23, 1957.

Dubuisson & Dubuisson, Opelousas, for appellant.

Lewis & Lewis, Opelousas, for appellee.

ELLIS, Judge.

This suit seeking compensation for total permanent disability is brought under the Workmen's Compensation Act of Louisiana, particularly LSA-R.S. 23:1031.1 which is an amendment allowing a recovery for disability which results from certain designated occupational diseases, among which is included poisoning or other diseases resulting from contact with lead and lead compounds and metals, other than lead, and their compounds. The workmen's compensation insurer of plaintiff's employee is made the defendant. The District Court awarded judgment in favor of plaintiff for total permanent disability and the defendant has appealed.

The defendant denied in the lower court but admits in this court that the plaintiff proved with sufficient certainty on the trial that he had contracted lead poisoning and they do not dispute the trial judge's finding that this disease was contracted while working for defendant's insured. However, it is defendant's position that the evidence clearly showed that by October 1956, as a result of treatment administered to the plaintiff, he had completely been dispelled of all toxicity which resulted from the inhalation or ingestion of lead and was no longer disabled and consequently that he is entitled to compensation only up to the date of his examination by Dr. Samuel B. Nadler on Oct. 15, 1956.

On June 6, 1956, the plaintiff consulted Dr. Donald J. DeBlanc, general practitioner of Opelousas, Louisiana, who hospitalized the plaintiff on June 13, 1956, where he remained until June 30, 1956, after which he was re-admitted to the hospital on July 10, 1956 and remained until July 24, 1956. However, Dr. DeBlanc thought that plaintiff had lead poisoning but in the abundance of precaution called in Dr. Donald F. Gremillion, a specialist in the field of internal medicine, and he diagnosed plaintiff's condition as that of plumbism or lead poisoning, and as a result of his diagnosis he treated the plaintiff with a new drug which is known as calcium di-sodium versonate, which reacts on the lead in such a manner as to hasten its passage from the body through the kidneys and the fecal stream. From the testimony, he was given a sufficient amount of the drug so as to greatly improve him or to get the desired effect. He still complained of weakness and Dr. Gremillion accordingly had him admitted to the Charity Hospital at New Orleans on July 25, 1956, for physical therapy, however, he left the hospital without notice or permission for the reason which he gave to the effect that 'he didn't want to starve.'

On August 6, 1956, he was examined by Dr. Mims Mitchell, Jr., specialist in the field of internal medicine of Lafayette, Louisiana, and Dr. Mitchell stated that the most common way for people to have lead poisoning was either by inhalation of lead fumes or by ingestion of lead and that when the lead gets into the body it is carried by the blood stream to different sites of the body, particularly the bones, and where it is deposited and is slowly excreted from the bones over a period of time. The lead which is deposited in the bones can be reactivated by drunkenness or excess use of alcohol and sickness accompanied by high fever. However, the new drug, according to the medical testimony, which was administered to the plaintiff is supposed to remove all lead deposits from the body. The only true test as to whether there is excess lead in the body is by giving the subject a twenty-four hour urine lead excretion test which necessitates special containers and laboratory equipment and Dr. Mitchell did not have this available at the time he made his examination of plaintiff. Dr. Mitchell's findings were limited. He stated that plaintiff's symptoms were compatible with plumbism but that if he had actually suffered the poisoning that at the time he examined him 'I felt he was almost within normal range again except the minor things touched on, the arm and leg.' His reference to the plaintiff's leg was the fact that he found one shorter than the other which he definitely stated was not due to plumbism or lead poisoning. Dr. Mitchell did find some residual weakness in plaintiff's hand which he stated was not disabling but he would not positively state that the plaintiff had fully recovered. He did state that in his opinion the plaintiff was progressing favorably and he was getting well from the disease. Dr. Mitchell explained that the plaintiff had acute lead poisoning rather than chronic and that one is more likely to recover completely from acute form rather than the chronic type.

Dr. Samuel B. Nedler, of New Orleans, Louisiana, a recognized specialist in internal medicine, examined the plaintiff from October 15 to October 18, 1956, and in order to do this had him hospitalized in Touro Infirmary in New Orleans. Dr. Nadler during this time testified that every test pertinent to the diagnosis of plumbism or lead poisoning was made with the result that there was no evidence of lead intoxication. Dr. Nadler went into detail in his testimony but we believe it sufficient on the question of whether the plaintiff had recovered from the effects of the lead poisoning on the date that this doctor examined him to merely state the result of his detailed examination of plaintiff. Dr. Nadler also stated that he was not able to find any physical disability in the plaintiff which might have resulted from a previous lead poisoning. This doctor was very definite in his testimony.

We can reach but one conclusion from the testimony in this case, that plaintiff on the date that Dr. Nadler examined him at Touro Infirmary and made the exhaustive tests had fully recovered from the effects of his acute lead poisoning. This brings us to one of the main questions in the case as to whether one who has suffered from lead poisoning is by reason of that fact made more susceptible to a recurrence should he go back to his former trade of painting. It is plaintiff's contention that should he return to his former occupation it would present a source of danger to his life and well-being and under such facts and circumstances he is not required to return to his former occupation. We agree if the testimony bears out plaintiff's contention that it would be dangerous to his life or well-being to return to painting. On this point Dr. Gremillion on behalf of plaintiff, when asked if he would advise plaintiff to return to a painting trade, stated: 'Well, sir, if he were my brother, I would advise him not to go back.' At another time he stated: 'Well, it is advised that anyone who has had lead poisoning, if he goes back to work, should be very cautious, very, very cautious, but this is on (only) my opinion. If he were my brother I would ask him to find another job.' However, we find him testifying shortly thereafter as follows:

'Q. What would be your opinion with reference to a person who has been found to have suffered an acute case of plumbism, would you say that the presumption that he may again suffer with a recurrence of the symptoms by further exposure would be more than in the case of one who had not been subject to an exposure, a previous exposure? I will rephrase that question. Would the presumption that one who had been previously exposed to lead poisoning that he would be reinfected quicker than would one who had not been exposed to lead poisoning? A. That I cannot say, Sir.'

'Re Cross Examination

'By Mr. James Dubuisson: Q. The best then that you can say is that you just feel that a person who has once had lead poisoning is apt to be more susceptible to lead poisoning that someone else, is that correct? A. That would be my feeling.

'Q. Yes, but you have no reason to state that simply because a person has had lead poisoning before, that he is more susceptible to lead poisoning after all the lead has been dispelled than he was before he had lead poisoning? You have no medical grounds for saying that? A. I know of nothing to say that definitely, Sir.

'Q. In other words, lead poisoning is simply getting lead into the body and if you get it in you are going to get lead poisoning and if you happen to fool with a certain occupation by which you are exposed to lead, you are apt to get lead poisoning, isn't that correct? A. That's right, sir.

'Q. And it doesn't matter whether you had it once or whether you had it three times, anybody who becomes exposed to lead can get lead poisoning? That is true, isn't it, Doctor? A. Yes, if they take enough in them they will get poisoning.

'Q. Lead poisoning is not incurable? Is it? A. No, sir, I don't think so.

'Q. After all there are too many people suffer from lead poisoning and true the immediate effects of it is very uncomfortable, but they are treated, they throw off the effects and they are perfectly normal, isn't that right? A.

Well, sir, it depends on what kind of residual you have with it referrable to peripheral neuritis.

'Q. Which of course can be determined by neurological examination? A. Competent neurological examination.'

The most that can be said for Dr. Gremillion's testimony is that he would not advise the plaintiff to go back but he gave no reason which would substantiate plaintiff's claim that it would be injurious to his well being or possibly endanger his life. He frankly stated that he did not know whether one who had been previously exposed to lead poisoning would be reinfected quicker than one who had not been exposed to lead poisoning.

Plaintiff offered the testimony of Dr. D. J. DeBlanc who stated that he would not advise plaintiff to return to his former employment or trade of painting and when asked 'Why do you make that statement?' answered 'Well, not from the personal knowledge of the subject but from...