Landry v. Bituminous Cas. Co.

• Decision Date: 15 January 1971
• Docket Number: No. 3286,3286
• Parties: Lloyd LANDRY, Plaintiff-Appellee-Second Appellant, v. BITUMINOUS CASUALTY COMPANY, Defendant-First Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 105

244 So.2d 105

Lloyd LANDRY, Plaintiff-Appellee-Second Appellant, v. BITUMINOUS CASUALTY COMPANY, Defendant-First Appellant.

No. 3286.

Court of Appeal of Louisiana, Third Circuit.

Jan. 15, 1971.

Rehearing Denied Feb. 24, 1971.

Writ Refused April 14, 1971.

Plauche , Sanders, Smith & Hebert, by Allen L. Smith, Jr., Lake Charles, for defendant-appellant.

Baggett, Hawsey & McClain, by R. Scott McClain, Lake Charles, for plaintiff-appellee.

Davidson, Meaux, Onebane & Donohoe, by Timothy J. McNamara, Lafayette, for defendant-appellee.

Before FRUGE , CULPEPPER and MILLER, JJ.

MILLER, Judge.

Plaintiff, Lloyd Landry, sued defendant, Bituminous Casualty Company for workmen's compensation at the rate of $45.00 per week beginning April 21, 1969 for 500 weeks, arising out of dual accidents which happened on April 21, and April 22, 1969. Defendant Bituminous filed a third-party suit against Fluor Corporation and its insurer, American Motorist Insurance Corporation, alleging that if the plaintiff is currently disabled it was the result of an accident occurring on November 5, 1969 while plaintiff was in the employ of third-party defendant, Fluor Corporation. Plaintiff subsequently amended his original petition to include Fluor Corporation and American Motorist Insurance Corporation as original defendants.

The trial judge granted judgment in favor of plaintiff and against defendant, Bituminous, awarding plaintiff compensation at the rate of $45.00 per week beginning April 21, 1969 not to exceed 500 weeks, subject to credit for compensation previously paid, together with penalties on the sums of $996.43, $517.50 and all sums not paid to date, and $2,000.00 attorney's fees. Defendant Bituminous was also cast with medical expenses and court costs. The trial court rendered judgment in favor of Fluor Corporation and American Motorist Insurance Company rejecting the demands of plaintiff, Landry, and third-party plaintiff, Bituminous. Defendant Bituminous appeals to this Court.

On April 21, 1969 plaintiff, Lloyd Landry, was employed by Henry Brothers, Inc. in Calcasieu Parish as an ironworker, and Bituminous was the workmen's compensation insurer of Henry Brothers, Inc. On that date a piece of plywood which was being used as a sun and rain shield fell from its scaffold and struck plaintiff on the back of the head and neck. The following day the identical accident occurred again. Plaintiff continued working and on May 6, 1969 he consulted Dr. George Schneider, orthopedic surgeon of Lake Charles. Dr. Schneider prescribed conservative treatment and plaintiff continued to work until approximately May 16, 1969 when his symptoms intensified and he was hospitalized by Dr. Schneider. After he left the hospital, plaintiff continued under Dr. Schneider's care until he was pronounced able to return to 'light duty' on August 5, 1969. Plaintiff obtained employment as an ironworker with Port City Construction Company in Lake Arthur, Louisiana, but was stricken with a srecurring stomach disorder and hospitalized at the Veterans Administration Hospital for approximately one month from the middle of September to the middle of October, 1969. The stomach disorder is admittedly unrelated to this case.

Upon his discharge from the V. A. Hospital plaintiff secured employment with defendant, Fluor Corporation, as an iron-worker-welder on a construction job in Calcasieu Parish. While so engaged on November 5, 1969, plaintiff was using a 2 4 board to straighten or align some steel rods in the process of plumbing a wall, when he claims to have sustained a second accident.

There are 4 issues: 1) Did plaintiff sustain a second accident on November 5, 1969? 2) Is plaintiff presently disabled? 3) Should there be penalties and attorney's fees and against whom? 4) Is Dr. Rafes' $150.00 charge for his deposition excessive?

The question of a second accident is the principal issue. In rejecting the claim of a second accident on November 5, 1969, the trial judge stressed the fact that three of the four witnesses plaintiff claims to have told of the November 5 accident, testified that he told them of no such accident. The fourth witness testified that there was such an accident but the trial judge was not impressed with his testimony. By coincidence the plaintiff gave a deposition several hours after the November 5, 1969 incident in which he testified as follows:

'I haven't tried to strain very much, but like today I was trying to plumb a wall over there, and we needed to push it over, some of it needed to be shoved, so I got a two by and placed it against the iron bar and I was shoving on it, and all of a sudden the pain just hit me like that in the neck and I got very weak.'

The trial judge reasoned that plaintiff was merely citing this incident as an example of the trouble he was having during his light duty work and concluded that this was not an accident within the contemplation of the workmen's compensation act.

At first blush it would appear that this was merely an example of the difficulty plaintiff was having. It is also true that three of the four witnesses testified that plaintiff had not reported an accident to them on November 5, 1969. However, we find that an analysis of plaintiff's testimony on this and other occasions coupled with the doctors' testimony, particularly that of Dr. Schneider, and a closer analysis of the three so-called negative witnesses, convinces us that other facts do corroborate the existence of this incident as a second accident.

One of plaintiff's fellow employees, Perry Le Bleu, testified that plaintiff mentioned to him that he had hurt himself on November 5, 1969 when he was attempting to plumb the wall. Le Bleu noticed that the plaintiff held his head sideways and that he was sick at his stomach. While it is true that plaintiff's other fellow employees, Bernette Clark, James Braswell, and Lonce Lanier, each testified that plaintiff did not mention he had been hurt in an accident on November 5, 1969 all three admitted that plaintiff told them he had to go to see the doctor.

Plaintiff testified on three different occasions, twice by deposition and once on the trial of the case and throughout his testimony it is evident that the incident of November 5, 1969 was more than a run of the mill pain in the neck. At the trial the plaintiff described the November 5 incident as follows:

'Well, this day we were plumbing this wall, and I picked up a two by, about five or six feet long, to give a little push on it from left to right; and when I did there was a very severe pain started from the bottom of my neck here and went to my head. And then I got very weak and nauseauted at my stomach. And, then I sat down on the pier there for a while. I had the feeling like I was going to pass out.'

Plaintiff went on to testify that his condition got worse after this incident.

Upon questioning by defendant Fluor's attorney plaintiff gave this response:

'Q. Now, the pain that you got, you say you got in your neck on November 5th before you went to give your deposition in connection with this case when you were working for Fluor, I think you told us about the two by four and you were plumbing a wall, was that a terrific pain too?

'A. It was a very terrific pain, more severe than anything I had while I was working there. In fact it almost knocked me out with the reaction I got with my stomach, the weakness and the--being nauseated.'

Upon being pressed further by counsel for defendant Fluor, plaintiff stated:

'I could have had occasional pain to my head, but it wasn't something that staggered me like this--this did when I was pushing on the wall. This was--I'm trying to tell you it was different.'

Plaintiff stated that he had 'never suffered nothing like that' and that he had not even done any light work since November 5, 1969. In describing the incident of attempting to plumb the wall plaintiff used at various parts of his testimony phrases like 'all of a sudden', 'got hurt again on November 5', 'the worse was when I pushed on that wall', and 'flashing pain'. When pressed repeatedly by Fluor's counsel, plaintiff described the incident as like something 'popped loose or tore loose in my neck'.

Plaintiff has been seen by four specialists, including two orthopedic surgeons and two neurosurgeons. Dr. George P. Schneider, othopedic...