Martin v. H.B. Zachry Co.

• Decision Date: 29 November 1982
• Docket Number: No. 82-C-1221,82-C-1221
• Citation: 424 So.2d 1002
• Parties: Phil John MARTIN v. H.B. ZACHRY COMPANY, et al.
• Court: Louisiana Supreme Court

Page 1002

424 So.2d 1002

Phil John MARTIN v. H.B. ZACHRY COMPANY, et al.

No. 82-C-1221.

Supreme Court of Louisiana.

Nov. 29, 1982.

Rehearing Denied Jan. 7, 1983.

Gordon Hackman, Boute, for applicant.

Darryl J. Foster, New Orleans, for respondent.

BLANCHE, Justice.

In this case we are asked to determine whether the plaintiff, Phil John Martin, proved by a preponderance of the evidence the existence of a causal connection between an employment-related accident and a ruptured disc discovered and surgically corrected more than two years later.

Following the surgery, Martin brought this suit against the defendants, H.B. Zachry Company, the employer, and Employers National Insurance Company, the employer's workmen's compensation carrier, to recover workmen's compensation benefits for total and permanent disability, plus medical expenses, damages, and attorney's fees. The trial court dismissed Martin's suit, finding that he had not carried his burden of proving the causal connection between the injury and the accident. The court of appeal affirmed, finding that Martin had not showed that there was a reasonable possibility of a causal connection between the accident and injury. We disagree. Our review of the record shows that Martin established the causal connection between the accident and the ruptured disc by a preponderance of the evidence. Accordingly, we reverse, 411 So.2d 1123 (La.App.1982).

CAUSATION

The evidence is uncontroverted that the plaintiff, an electrician, did sustain a back injury on September 24, 1975 during the course and scope of his employment. Martin, while carrying a load at the Zachry job site at the Union Carbide Plant in Taft, Louisiana, slipped on some steel concrete-reinforcing rods and twisted his body as he fell to the ground. Because of a sharp pain in his lower back, Martin could not continue movement and had to be transported by ambulance to the office of Dr. Walter Brent, an orthopedic surgeon.

Dr. Brent diagnosed the plaintiff as having a "very acute back sprain." Otherwise, the neurological and orthopedic tests performed by him were normal. Martin's complaints of back pain persisted, however, and Dr. Brent performed a myelogram. The results of this test proved normal also, and Martin was referred to Dr. John Jackson, a neurosurgeon. The neurological examinations and tests performed by Dr. Jackson also proved normal, so he performed a discogram, a test designed to detect the presence of a ruptured disc. The discogram proved negative. Martin remained under the care of Dr. Brent until January 7, 1976, when he was discharged as being able to return to work. Up until that time, Martin had been paid workmen's compensation benefits and medical expenses totaling $4,250.34.

From the time of his discharge from Dr. Brent until August, 1977, plaintiff received treatment from a chiropractor. At about that time, at the insistence of his attorney, Martin was examined by yet another neurosurgeon, Dr. Richard Levy, who found no evidence of a ruptured disc. Finally, in September, 1977, while hospitalized with another ailment, plaintiff was referred to still another orthopedic surgeon, Dr. Courtney Russo. Finding fault with the diagnoses of the earlier examining physicians, Dr. Russo performed another myelogram, which he interpreted as showing an abnormality. Martin submitted to surgery, and Dr. Russo repaired what he determined to be a rupture at the "L-5 level."

The plaintiff in a workmen's compensation action has the burden of establishing by a preponderance of the evidence the causal connection between his disability and the accident. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977); Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La.1974); Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973). We find that the medical testimony in this case establishes the existence of a causal connection between the accident and the injury by a preponderance of the evidence.

The evidence is uncontradicted that Martin had no problems with his back prior to the accident. Since the accident, however, and up until the time of the surgery, Martin was in continuous pain. Dr. Brent, testifying by deposition, stated that the myelogram he had performed showed no signs of "nerve root compression." However, on cross-examination, he admitted that the results of the myelogram did show a swelling of the nerve root at the L-5 level. He interpreted this swelling as a normal variation. Dr. Brent admitted that a myelogram is only 80 percent accurate in diagnosing a ruptured disc, and, under certain conditions, might be only 50 percent accurate.

Dr. Jackson testified, also by deposition, that even though the results of all of his examinations and tests were normal, he had expected the discogram to show a rupture at the L-5 level and was surprised when none appeared. In a letter to Dr. Brent before the discogram, Dr. Jackson apprised him that his interpretation of the myelogram revealed a "large dilated nerve root" at the L-5 level, on the right side, which could have been caused by a disc bulge compressing the nerve root. This bulge would have been the cause of the plaintiff's pain.

Dr. Jackson also testified that it was possible to discover a ruptured disc during the course of surgery even where it had not been diagnosed by a myelogram or discogram prior to the operation. He estimated the discogram to be 98 percent accurate, but recognized that certain maladies may go undiagnosed no matter how many tests are performed. In his words, "Medicine is more of an art than a science."

Dr. Russo, also testifying by deposition, stated that he interpreted the first myelogram to show an abnormality at the L-5 level. This testimony is consistent with Dr. Jackson's initial interpretation of the first myelogram. However, contrary to the ultimate diagnoses of Dr. Brent and Dr. Jackson, Dr. Russo interpreted the abnormality to be consistent with a ruptured disc. This diagnosis was confirmed by the second myelogram, whereby he found another abnormality at the "L-5 disc area on the right."

We recognize that the factual findings of the trial court as to work-related disability are entitled to great weight on appellate review. Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979); Cadiere v. West Gibson Products Co., 364 So.2d 998 (La.1977). However, in this case, we are forced to conclude that the findings of the lower courts are manifestly erroneous.

The lower courts attached great weight to the opinions of the examining physicians that the ruptured disc had to have some cause other than the on-the-job accident. However, in cases such as these, the ultimate determination as to whether a plaintiff has proved the causation of his disability is made by the courts and not by medical experts. The courts apply legal tests to the facts of the case in order to achieve a just and equitable result. Causation is not necessarily a medical conclusion. Guillory v. USF & G Co., 420 So.2d 119 (La.1982); Haughton v. Fireman's Fund American Insurance Co., 355 So.2d 927 (La.1978); Bertrand v. Coal Operators Cas. Co., 253 La. 1115, 221 So.2d 816 (1969).

We find that the medical evidence clearly establishes a causal connection by a preponderance of the evidence. The plaintiff was in good health prior to the accident, and his back pain manifested itself continuously thereafter. Dr. Russo, the surgeon who ultimately repaired the disc, contradicted the diagnoses of the two earlier examining physicians. He interpreted both myelograms to indicate the strong possibility of a ruptured disc. His diagnosis was ultimately borne out when the herniated disc was surgically repaired. All testimony indicated that the myelogram and discogram are 80 and 98 percent effective, respectively, in diagnosing a ruptured disc. This means that out of every 100 persons with ruptured discs who are tested, there will be between 2 and 20 persons who do not test positive. Apparently, the plaintiff, Phil John Martin, fell within this exceptional group. Therefore, we deem Martin to have carried his burden of proof by a preponderance of the evidence.

EXTENT OF DISABILITY

Martin claims that he is totally and permanently disabled because he cannot return to the same type of work he was performing at the time of the accident. He asserts that substantial pain prevents him from performing duties as an electrician and would have us characterize him in the "odd-lot" category of disabled workers.

In Oster v. Wetzel, 390 So.2d 1318 (La.1980), we adopted the so-called "odd-lot" doctrine which provides that the claimant is entitled to a total and permanent disability when he establishes a prima facie case that, because of the physical impairment and other factors such as mental capacity, education, and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. 390 So.2d at 1324. The odd-lot concept may also be applied in cases where the worker, because of his injury, is in such substantial pain that work becomes an overburdening task. Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980); Lattin v. Hica Corp., 395 So.2d 690 (La.1981); Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Whitaker v. Church's Fried Chicken, Inc., 387 So.2d 1093 (La.1980).

Based on the evidence in this case, we must conclude that Martin is not totally disabled under either the substantial pain or broader odd-lot doctrine. However, we do find, by a preponderance of the evidence, that Martin is permanently and partially disabled.

Based on his final post-operative examination of Martin, Dr. Russo assigned a permanent disability rating of 5-10 percent. He testified that he had determined the surgery to be successful and would have assigned such a rating to anyone who had a L-5 disc surgically repaired....