Martin v. Travelers Ins. Co.

• Decision Date: 05 July 1989
• Docket Number: No. 88-532,88-532
• Citation: Martin v. Travelers Ins. Co., 546 So.2d 958 (La. App. 1989)
• Parties: Kendrick MARTIN, Plaintiff-Appellee, v. TRAVELERS INSURANCE CO., et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana

Page 958

546 So.2d 958

Kendrick MARTIN, Plaintiff-Appellee, v.TRAVELERS INSURANCE CO., et al., Defendants-Appellants.

No. 88-532.

Court of Appeal of Louisiana Third Circuit.

July 5, 1989.

Tommy Dejean, Opelousas, for plaintiff-appellee.

Dauzat, Falgoust & Caviness, Steven Bienvenu, Opelousas, for defendants-appellants.

Before STOKER, LABORDE and YELVERTON, JJ.

LABORDE, Judge.

This is a worker's compensation case.Plaintiff, Kendrick Martin, filed this suit against defendants, the City of Opelousas and its worker's compensation carrier, Travelers Insurance Company(Travelers), seeking worker's compensation benefits, medical expenses, penalties, attorney's fees and legal interest.After a trial on the merits, the trial court awarded plaintiff supplemental earnings benefits with legal interest on all payments from date due, until paid, as well as medical expenses.The trial court also cast defendants with all costs but denied plaintiff penalties and attorney's fees.From this judgment, both parties appeal.We affirm.

FACTS

Plaintiff was employed by the City of Opelousas as a park worker.On April 11, 1985, he injured his back while cleaning the weight room at the South City Park in Opelousas.Plaintiff was carrying some weights, when he tripped and fell against a bench.Following the accident, plaintiff was paid worker's compensation benefits and medical expenses until September 26, 1986.

Plaintiff was initially seen by Dr. W.J. Briley on the day of the accident.Dr. Briley treated the plaintiff conservatively for several weeks.Plaintiff was subsequently hospitalized to undergo a series of tests including x-rays, a CT scan, bone scan, and lumbar myelogram.Due to plaintiff's continued complaints of low back pain, Dr. Briley referred plaintiff to Dr. Frederick L. Mayer, an orthopedic surgeon.Dr. Mayer examined the plaintiff in the hospital on May 14, 1985 and again on July 3, 1985.Dr. Mayer testified by deposition that plaintiff's back examination and tests were normal at this time.He also stated that he did not find any clinically objective evidence of a lumbar disc herniation, nerve root compression or facet joint syndrome.Dr. Mayer did admit that there was some possibility of disc disease at the L5-S1 level based on the radiologist's interpretation of the CT scan.His diagnosis was a lumbar strain, resolving, and he advised Dr. Briley that plaintiff was capable of returning to work at that time.

Plaintiff testified at trial that after about three months of treatment with Dr. Briley he attempted to return to work.However, he stated that he only worked for four days because the pain in his back and legs was so great.Plaintiff then went to another orthopedic surgeon, Dr. Louis C. Blanda, for treatment.Dr. Blanda first saw plaintiff on August 16, 1985.In his deposition, Dr. Blanda stated that plaintiff's main complaint at that date was of continued low back pain, numbness in both legs and headaches.Dr. Blanda conducted a physical examination which revealed that plaintiff had a muscle spasm in his back.On October 7, 1985, Dr. Blanda again saw the plaintiff, and in reviewing his records at that time, Dr. Blanda felt that plaintiff had a possible disc injury at the L5-S1 level.This finding was consistent with plaintiff's complaints during his previous examination.Dr. Blanda then sent the plaintiff to Dr. Thomas C. Laborde for rehabilitation therapy.Dr. Blanda continued treating the plaintiff through 1986 and 1987.An MRI (Magnetic Resonance Imaging) scan was performed on plaintiff in October of '86 which, according to Dr. Blanda, confirmed disc herniation at the L5-S1 level.Dr. Blanda concluded that plaintiff was not capable of returning to any heavy work.Rather, he thought that plaintiff's physical infirmity would limit him "to light duty work at max."Dr. Blanda saw plaintiff again in December of 1986 and then in February of 1987.Plaintiff still complained of some back pain and occasional leg pain, but had improved under Dr. Laborde's rehabilitation program.Dr. Blanda again saw plaintiff on April 23, 1987.He stated that plaintiff at this time had only occasional leg pain, but "really hadn't gotten much better since his last visit."

Dr. Blanda testified in his deposition that plaintiff had a herniated disc in his back which did not require surgery as long as plaintiff took it easy.He felt that plaintiff should refrain from heavy lifting or repetitive lifting, situations where he might further stress his back.Otherwise, plaintiff ran the risk of further injuring the disc which might then require surgery.Dr. Blanda also stated that plaintiff was only disabled from performing heavy work and that he had left the decision of deciding when plaintiff should return to work to Dr. Laborde.Dr. Blanda did not believe that plaintiff's condition would improve.

Dr. Laborde, who treated plaintiff at the request of Dr. Blanda, stated in his progress report of April 28, 1986, that plaintiff was ready for light duty activities and should avoid repetitive bending, stooping, or lifting, or lifting objects that weigh more than 15-20 pounds.He also recommended that plaintiff avoid being in one position for longer than 30-60 minutes during the course of a work day and should avoid prolonged exposure to heavy vibrational stresses.

Dr. Michael Heard, an orthopedic surgeon, also examined the plaintiff once on July 7, 1986.He examined the plaintiff's history, conducted a physical examination, took x-rays and performed a CT scan.Dr. Heard opined that the x-rays indicated some degenerative disc disease and that the CT scan showed moderate bulges at the L4-5, L5-S1 discs.However, there did not appear to be nerve root compression from the bulging discs.Dr. Heard diagnosed a cervical low back strain and concluded that plaintiff was capable of returning to work at that time.

SUPPLEMENTAL EARNINGS BENEFITS

On appeal, defendants contend that the trial court committed manifest error in awarding supplemental earnings to plaintiff under LSA-R.S. 23:1221(3)(a).

At the time of the accident, LSA-R.S. 23:1221(3) providing for supplemental earnings benefits, read in part:

"(a) For injury resulting in the employee's inability to earn wages equal to ninety per cent or more of wages at time of injury, supplemental earnings benefits equal to seventy-four percent of the difference between ninety percent of the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis.Average monthly wages shall be computed as four and three-tenths times the wages as defined in R.S. 23:1021(10)."

Paragraph 3(c)(i) of LSA-R.S. 23:1221 further provided that:

"Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee's or employer's community or reasonable geographic region."

Thus, to qualify for supplemental earnings benefits under this statute, a plaintiff must prove by a preponderance of the evidence that as a result of a work related injury he can no longer earn wages equal to 90% or more of his wages at the time of injury.Clark v. Welex, A Halliburton Company, 517 So.2d 1186(La.App. 3d Cir.1987), writ denied, 521 So.2d 1170(La.1988).

In determining the extent of plaintiff's injury in this case, the trial court had to evaluate conflicting medical testimony, as well as lay testimony.In Guidry v. Davis, 382 So.2d 250, 253(La.App. 3d Cir.1980), this court stated:

"It is also well settled that the jury or trial judge may, and should, assess the credibility of experts who testify at the trial, as well as that of lay witnesses, to determine the most credible and realistic evidence and the fact finder's determination of the credibility of those witnesses will not be disturbed unless found to be clearly erroneous.Green v. State, Southwest Louisiana Charity Hosp., 309 So.2d 706(La.App. 3 Cir.1975);Monette v. Aetna Cas....