Lachney v. Employers Commercial Union Ins. Co.

• Decision Date: 02 September 1976
• Docket Number: No. 7736,7736
• Parties: Hanfred LACHNEY and the Travelers Insurance Company v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANIES.
• Court: Court of Appeal of Louisiana — District of US

Page 624

337 So.2d 624

Hanfred LACHNEY and the Travelers Insurance Company v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANIES.

No. 7736.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 2, 1976.

Rehearing Denied Oct. 13, 1976.

Leach, Grossel-Rossi & Paysse, Michael A. Britt, Richard N. Dicharry, New Orleans, for Travelers Ins. Co., plaintiff-appellant-appellee.

Drury, Lozes & Curry, Madison C. Moseley, James H. Drury, New Orleans, for Northern Assurance Company of America, defendant-appellant-appellee.

Before SAMUEL, LEMMON and BEER, JJ.

SAMUEL, Judge.

This is a suit for a declaratory judgment. Plaintiffs allege a dispute has arisen as to which of two insurers, The Travelers Insurance Company, a petitioner herein, or Northern Assurance Company of America, ¹ the defendant, is responsible for workmen's compensation benefits which may be due to Lachney as a result of injuries sustained in the course and scope of his employment with Sidney Prats Sheet Metal Works. The prayer is for judgment declaring which insurer (or both) is liable.

Following trial, there was judgment holding both insurers liable in the proportion of 50% Each for compensation and medical benefits due or to become due as a result of an accident which occurred on August 21, 1974. Both insurers have appealed.

Lachney, a sheet metal worker, was injured while in the course and scope of his employment on March 27, 1974, at which time Travelers was the compensation insurer of his employer, Prats. He suffered either a reoccurrence of the first injury or a new injury while in the course and scope of his employment on August 21, 1974, at which time Northern Assurance was compensation insurer of his same employer, Prats.

Testimony relative to the injuries in suit was given by Lachney, Dr. J. Browne LaRose, Jr., a general practitioner, and Dr. Claude S. Williams, an orthopedic specialist.

Lachney testified: While moving a scaffold on Thursday, March 27, 1974, he heard his spine 'pop'. He continued to work until the following Monday when he consulted Dr. LaRose, who treated him for three weeks, during which time he was sore, but continued to improve . After his last visit on April 1, he went to work for another employer for five weeks. He returned to Prats in June, doing the same work he had done prior to the March 27 injury but with some constant 'soreness'. On August 21, 1974 he felt a 'bone rubbing' and hot flash in his back while assisting two other men lift and move a 75 pound duct. The next day he went back to Dr. LaRose who referred him to Dr. Williams. He was hospitalized at that time and an operation was performed on September 6. On May 27, 1975 he returned to work doing the same type of work he had previously performed, but in pain. ²

Lachney stated the pain in August was different from that he experienced in March. There had been no hot flash or rubbing of bones associated with the first incident, nor had he previously had pain, as he had following the August incident, in the muscles of his legs and thigh.

Dr. LaRose testified: He first saw Lachney on April 1, 1974 for injuries to his lower back sustained on March 27. A routine examination revealed a marked degree of muscle spasm, but plaintiff was too tender and painful to be examined completely. His injury was diagnosed as acute lumbosacral strain. He was given analgesics and muscle relaxants, and started on daily physiotherapy. He was seen on April 4 at which time he still had muscle spasms, but was improving and continued to improve when examined on April 9 and 19. On the latter date, his last visit, he had a full range of motion, no complaints of pain and no muscle spasms. He was given postural exercises for his back and advised to return to work, and to return to the doctor for further evaluation the following week. When he did not return. Dr. LaRose assumed he was doing well. At no time during this entire period did he have any complaints relative to his arms or his legs, and there was no evidence of a ruptured disc. No x-rays were taken. Lachney returned on August 22 with complaints of back pain. He did not describe any new incident or injury. Examination on that date revealed spasms not as marked as those in March and forward flexion to only 50%. He was referred to Dr. Williams.

Given his history of continued back soreness over the entire period beginning in March, Dr. LaRose was of the opinion that Lachney's later back problems related to the March incident. Although a disc syndrome would not be expected to improve within a three week period, the fact that Lachney continued to have pain after returning to work reinforced this doctor's opinion that the disc condition resulted from the March accident. He indicated that after a lumbosacral strain a patient is prone to get a reoccurrence even from a relatively minor injury, such as a twist, or even a sneeze. He also stated there is a close line of demarcation between a diagnosis of an acute lumbosacral strain and a lumbar disc condition.

Dr. Williams testified: When first examined on August 22, 1974 Lachney complained of pain in his lower back and discomfort extending into his right leg. He told this doctor he was injured in March while picking up a heavy object and that the...