Levickey v. Cargill, Inc., 8384
| Decision Date | 07 October 1981 |
| Docket Number | No. 8384,8384 |
| Citation | 405 So.2d 615 |
| Parties | Patricia LEVICKEY, Plaintiff and Appellant, v. CARGILL, INC., Defendant and Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Martzell, Montero & Lamothe, Charles F. Gay, Jr., New Orleans, for plaintiff and appellant.
John K. Hill, Jr., Lafayette, for defendant and appellee.
Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
This appeal was taken by claimant-appellant from a judgment terminating workmen's compensation benefits in a proceeding for modification of a previous decree, instituted by the employer pursuant to La.R.S. 23:1331. The appellant raises two issues: (1) Was termination of benefits justified in light of the evidence adduced? (2) Did the trial judge err in holding the employer was not liable for certain medical expense he found to be unnecessary and unreasonable?
Ms. Patricia Ann Levickey sustained a back injury on August 18, 1978 while working as a barge loader for Cargill, Inc. The employer paid workmen's compensation until November of 1978 when evaluations by two orthopedic surgeons revealed no disability. Ms. Levickey filed suit for compensation benefits, and a trial on the merits was held January 10, 1980. Judgment was rendered February 26, 1980 decreeing that Ms. Levickey was entitled to compensation benefits. The issue of employer's liability for medical expenses was pretermitted at that time, reserving the right of either party to reopen the proceedings for consideration thereof. A hearing on medical expenses was held June 6, 1980, at which time the trial court held that Cargill was liable for part, but not all of claimant's medical expenses incurred in connection with hospitalization in the fall of 1979. Another rule on medical expenses subsequently incurred for hospitalization was heard September 12, 1980. The trial court again held that Cargill was not liable for all of claimant's medical expenses but reserved the employee's right to reopen that issue for further development of the evidence at the six months' review hearing. Trial was held December 23, 1980 on the employer's application for modification of the previous judgment, resulting in the decree that claimant is no longer entitled to compensation benefits.
It is well settled that in proceedings for modification of decrees awarding workmen's compensation benefits to an employee, the employer bears the burden of proving, by a preponderance of the evidence, that the condition of the injured employee is favorably altered from what it was at the time of the original adjudication. Belsome v. Southern Stevedoring, Inc., 239 La. 413, 118 So.2d 458 (La.1960); Cloud v. National Surety Corp., 166 So.2d 31 (La.App. 3rd Cir. 1964); Duncan v. Carlo Ditta, Inc., 206 So.2d 140 (La.App. 4th Cir. 1968). The trial judge held that Cargill met this burden of proof, based on evidence obtained after the first trial. After the first trial, Ms. Levickey was hospitalized for the second time and a battery of tests very similar to those run while hospitalized before the first trial were repeated. The results were all negative. Also after the first trial, Ms. Levickey was discharged by Dr. Brown, the only one of the four qualified physicians who testified she was disabled at the time of the first trial. None of the medical examinations conducted subsequent to the employee's discharge by Dr. Brown revealed any muscle spasms, which was the only objective evidence of disability Dr. Brown had been able to find.
It is the responsibility of the trial judge in such proceedings to determine if and to what extent the claimant suffers a disabling injury. To do so, he may draw on all the evidence in the record, including both lay and medical testimony. Thompson v. Natchitoches Parish Hospital Service District, 365 So.2d pg. 57 (La.App. 3rd Cir. 1978). The only evidence here that the claimant remains disabled is her own testimony. Proof of disability arising by reason of subjective pain depends to a great extent on the trial court's evaluation of credibility of the witnesses in light of the medical testimony. Whether such pain is substantial enough to continue to be disabling is a question for the trier of fact. Johnson Guastella Construction & Realty Company, 338 So.2d 747 (La.App. 4th Cir. 1976), writ refused 341 So.2d 403. The trial judge made his own evaluation of Ms. Levickey's testimony and decided that her condition was unchanged in light of the above-mentioned medical evidence, as well as the testimony of Dr. Ray Haddad, an orthopedic surgeon who examined her after her release by Dr. Brown.
The fact findings of the trial judge in a workmen's compensation case, particularly those involving a determination of the credibility of witnesses, are entitled to great weight. Thompson, supra; Broussard v. Acadia Industries, Inc., 339 So.2d 48 (La.App. 3rd Cir. 1976). Such findings will not be disturbed unless found to be clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Thompson, supra; O'Donnell v. City of New Orleans, 338 So.2d 981 (La.App. 4th Cir. 1976). The trial judge was not clearly wrong in finding as a fact that plaintiff is no longer disabled.
The claimant raises the issue of whether or not the employer should be liable for all medical expenses arising out of or directly connected with her injury, contending that the trial court erred in failing to charge the defendant-employer with the full amount of her medical expenses. The claim is made with respect to expenses incurred when Ms. Levickey was hospitalized both in October and November, 1979, and in May of 1980. The defendant argues that the present appeal arises from the judgment rendered in connection with the hearing held December 23, 1980, in which the only issue considered was termination vel non of compensation benefits pursuant to LSA-R.S. 23:1331. Cargill contends that the issue of medical expenses is not properly before this Court, because no appeal was taken from the judgments adjudicating those issues.
With respect to the expenses incurred for the hospitalizations during October and November of 1979, a hearing was held on June 6, 1980. Judgment thereon was rendered July 2, 1980 decreeing that the employer is liable for only a part of the expenses considered at the hearing. LSA-R.S. 23:1317 provides, in pertinent part, that judgments rendered in workmen's compensation proceedings shall be appealable in the same manner as other judgments. R.S. 23:1351(A) provides:
The judgment of July 2, 1980 was a determination on the merits of the issue of medical expenses incurred during 1979 and therefore constitutes a final judgment as to those issues within the meaning of La.C.C.P. Art. 1841. The delays for appeal of the July 2, 1980 judgment expired long before the taking of the present appeal. Therefore, the issue of whether or not the July 2, 1980 judgment is correct cannot be considered.
However, the expenses for Ms. Levickey's hospitalization in May of 1980 were not considered until the hearing of September 12, 1980, which was held pursuant to her rule to compel payment of medical expenses. At that time, the trial judge held that Cargill did not have to pay any more of those hospital expenses than it had already paid but reserved further judgment until the six months' review hearing. The essence of his ruling was as follows:
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