Miller v. U.S. Fidelity & Guaranty Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: HARDY
• Citation: Miller v. U.S. Fidelity & Guaranty Co., 99 So.2d 511 (La. App. 1957)
• Decision Date: 19 December 1957
• Docket Number: No. 8737,8737
• Parties: Clarence W. MILLER, Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellee.

Page 511

99 So.2d 511

Clarence W. MILLER, Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellee.

No. 8737.

Court of Appeal of Louisiana, Second Circuit.

Dec. 19, 1957.

Rehearing Denied Jan. 21, 1958.

Writ of Certiorari Denied April 21, 1958.

Polk, Foote & Neblett, Alexandria, for appellant.

Gist, Murchison & Gist, Alexandria, for appellee.

HARDY, Judge.

This is a compensation claim in which plaintiff seeks an award as for total permanent disability. Plaintiff appeals from a judgment rejecting his demands.

There is no dispute as to the occurrence of the accident and the existence of a period of disability as the result of a physical injury. The basis of plaintiff's claim rests upon the contention that he has suffered a 'post-traumatic neurosis' or a 'conversion hysteria', as the result of the accidental injury suffered in the course of his employment, which has effected total permanent disability to perform manual labor.

Three issues involving questions of both fact and law are presented by this appeal:

(1). Has plaintiff succeeded in establishing by a preponderance of the evidence a continuing disability attributable to the existence of some form of neurasthenia, which is related to his injury?

(2). If the above question is answered in the affirmative, upon what basis should plaintiff's recovery be computed?

(3). In the event plaintiff is entitled to judgment, should statutory penalties and attorney's fees be awarded?

The material facts in connection with plaintiff's employment and injury were stipulated by counsel. Plaintiff, an eighteen-year old white youth, working as a common laborer in the employ of defendant's insured, Christoff Keller, who was engaged in the conduct of farming operations in Rapides Parish under the name of Inglewood Plantation, sustained an accidental injury on June 7, 1955, while engaged in the course and scope of his employment. At the time of the accident plaintiff was engaged in a hazardous employment within the provisions of the Louisiana Workmen's Compensation Law, LSA-R.S. 23:1021 et seq., specifically, in the operation of a power saw. A falling tree struck plaintiff, causing a fracture of the tibia of the right leg (erroneously described in the testimony of Dr. Banks as a fracture of the left tibia). Defendant, insurer of Keller, under the provisions of a standard workmen's compensation insurance policy, made compensation payments to plaintiff for a period of forty-three weeks subsequent to the occurrence of the accident at the rate of $26.32 per week, together with medical and hospital expenses. It is noted that defendant does not admit the correctness of the amount of the weekly payments, but, on the contrary, contends that this rate represented an overpayment for which it claims additional credit in the event of judgment in favor of plaintiff.

In addition to the above facts as stipulated, other pertinent facts were established on trial, as follows:

That the injury sustained by plaintiff was treated by Dr. T. E. Banks, Jr., an orthopedic surgeon of Alexandria, by a closed reduction of the fracture and the application of a long leg cast, which was removed on July 25th and a short leg cast then applied, which was removed on August 22nd, at which time x-rays demonstrated an incomplete healing, and further treatment required the use of crutches; that residual evidences of injury consisted of normal stiffness and soreness of the joints and a condition of atrophy of the limb, for which exercises and physiotherapy were recommended by Dr. Banks; that the condition of the injured leg steadily improved until the 30th of March, when, after examination, plaintiff was finally discharged and pronounced fit to return to work by Dr. Banks. Plaintiff consulted an attorney, and, at the latter's request and direction, was examined on May 14, 1956, by Dr. A. Scott Hamilton, an orthopedic surgeon of Monroe, who concluded that plaintiff was suffering from a disability due to a nerve injury, probably resulting from pressure caused by the healing callous, and this doctor recommended that plaintiff be encouraged to return to some form of light work which would not require prolonged walking or standing. Being informed that plaintiff continued to have trouble, Dr. Banks requested that he return for another examination, which was made on June 1, 1956, and his findings were negative with respect to any objective evidence of residual physical injury, although Dr. Banks did note the presence of what he described as a 'stocking hyperesthesia.' It was established by a number of witnesses, and by the examining medical specialists, that plaintiff continued to evidence a slight limp of the right leg in walking, and, in his testimony, Dr. Banks commented upon an exaggeration of this impediment, on the occasion of his re-examination in June, 1956, which he described as a 'grotesque' gait, a condition much worse than had been apparent at any time theretofore. As to his final opinion following the June examination, Dr. Banks testified:

'From strictly an objective standpoint, on the basis of any positive findings, that I could see, I couldn't explain any reason for actual disability in the extremities and when the X-rays previously showed the bone healing, the muscle mass had returned, the joint motion was full, there were no circulatory or neurological discrepancies--so I felt that the man could return to work, strictly from the objective findings.'

As the result of his observation during the trial of the case, the learned district judge, in his written opinion, commented that plaintiff

'* * * walked with the right foot turned inward with an extreme limp and dragging of the foot, the gait appearing to be 'grotesque', to use the expression of Dr. Banks.'

On June 11, 1956, plaintiff was examined by Dr. Davidson Texada of Alexandria a specialist in neurology and psychiatry, who made another examination of plaintiff on September 20, 1956, shortly before the trial of the case on September 25th. Upon the basis of his examination Dr. Texada diagnosed plaintiff's condition as being a 'conversion hysteria' accompanied by a 'possible' neuritis, as to which latter condition, however, he refused to make a definite diagnosis. When questioned as to the cause of plaintiff's condition of hysteria, Dr. Texada testified:

'A. I think it's based primarily on the injury that he received to his leg and the period of disability and any conversion hysteria is usually prolonged by the desire of the patient to convince himself that something is actually, physically wrong with the leg itself. This is a particular stress that comes that the patient for some reason is not able to cope with and retreats into this neurotic sort of disability. And then this is aggravated further by the desire of the person's own mind to have something physically wrong with him. To account for his disablement.

'Q. Doctor, do you know what it would take to secure this man or is it considered indefinite condition? A. I would have to consider it indefinite at the time. If there is any particular degree of nerve lesion involved, and if this doesn't clear, then I think that this may make his prognosis better. His outlook better.

Q. Do you attribute his present condition as he is now, to conversion hysteria? A. Yes, I do.

'Q. Did you have occasion to re-examine Clarence Miller? A. Yes, I re-examined him on September 20th. And my examination at that time showed essentially the same picture, there was some change in the sensory disturbance, whereas before it had been a purely stocking type of anesthesia of the entire leg and it now involved the anterior and lateral and medical surfaces of the leg. Rather than up over the knee.

'Q. Well, does that change your diagnosis in any way? A. No, sir.

'Q. It's still your opinion that Clarence Miller is disabled from returning medial surfaces of the leg. Rather

'Q. And that the duration of that is indefinite? A. Is indefinite.'

The testimony of a number of lay witnesses on behalf of plaintiff establishes that he appeared to be incapable of any long sustained physical effort and his exertion in connection with walking or being on his feet were limited to periods not exceeding one and one-half to two hours. According to these witnesses plaintiff walked with a perceptible limp and was incapable of the nature of physical activity and exertion which he had been able to sustain prior to the injury. It was observed that plaintiff tired somewhat easily and complained of pain. Plaintiff testified that he had attempted to do some plowing on his father's small farm where he lived, but was unable to endure this kind of manual labor.

At the age of seventeen plaintiff quit school while in the sixth grade. It is obvious that plaintiff is below normal in intelligence and is of that type of mentality which, according to the testimony of Dr. Texada, is more susceptible to neurosis and hysteria. At the time of trial plaintiff was employed at the State Colony & Training School in a capacity which required guarding or keeping watch over patients. Plaintiff testified, and the point was not disputed, that he performed the greater part of his duties while seated, and it is not shown that he was required to be on his feet for any extensive period of time. Plaintiff's application for employment at the State Institution was introduced in evidence and particular attention was called to the fact that, in answer to the question as to the condition of health, plaintiff had circled the words 'very good'. We consider this fact of little significance and, indeed, we cannot conclude that this descriptive phrase was inaccurate, considering the nature of the work for which plaintiff applied, and, further, that there is nothing wrong with plaintiff's general condition of health so long as he is not required to stand or walk or engage in manual labor which places a strain upon the injured leg.

Some six months...