Milligan v. Bayou Vista Manor, Inc.
| Decision Date | 06 February 1978 |
| Docket Number | No. 6309,6309 |
| Citation | 355 So.2d 569 |
| Parties | Ann MILLIGAN, Plaintiff-Appellee, v. BAYOU VISTA MANOR, INC. and Houston General Insurance Company, Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Gold, Little, Simon, Weems & Bruser by Leo Gold and Eugene J. Sues, Alexandria, for defendants-appellants.
J. Minos Simon and Edward J. Milligan, Jr., Lafayette, for plaintiff-appellee.
Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
This is a workmen's compensation case. Plaintiff, Ann Milligan, sustained an injury to her back on January 15, 1975, when she was attempting to lift a metal bed at Bayou Vista Manor Nursing Home in Avoyelles Parish while employed as a nurse's aide.
The Nursing Home's compensation insurer, Houston General Insurance Company, paid weekly compensation benefits of $58.35 from the time of the accident through February 2, 1977, and medical expenses totalling $1,850.68. Suit was filed against the employer and the insurer after benefits were terminated, alleging permanent and total disability and requesting penalties and attorney's fees.
The trial court found plaintiff to be totally and permanently disabled and awarded weekly compensation benefits of $58.35, medical expenses, and penalties and attorney's fees. Defendants appealed. Plaintiff has answered the appeal requesting an amendment of the judgment to provide for future medical expenses.
Defendants contend on appeal that the reports of three physicians were improperly admitted into evidence and that plaintiff has not established her claim by a preponderance of the evidence. They also contend that the award for penalties and attorney's fees was improper.
The medical evidence in this case consisted of the testimony of Doctor Carl Jory, the treating physician; reports and a deposition of Doctor Daniel M. Kingsley, an orthopedist; and the reports of Drs. J. R. Rivette and John D. Jackson, neurological surgeons, and of Dr. D. A. Gary, an orthopedist. Defendants argue that the reports of these last three physicians constitute hearsay evidence and should not have been admitted. They also argue that Louisiana Revised Statutes 23:1121 and 1122, cited by plaintiff for the proposition that these reports were properly admitted and constitute prima facie evidence of the facts and opinions contained therein, is not applicable to the present case because the procedural requirements set forth in those statutes were not followed.
There may have been substance to appellants' argument; however, after examining the record, we discovered that although defendants' counsel objected to the introduction of the reports of Doctors Rivette and Gary when they were sought to be introduced by plaintiff's counsel individually, no objection was made to the introduction of the insurance company's file in toto as plaintiff's Exhibit No. 18. The reports from these two physicians were included in the insurance company's file and, as such, constitute a part of plaintiff's Exhibit No. 18. Therefore, they are properly in the record.
The report of Doctor Jackson was not included in the insurance company's files. However, we do not feel that the presence of this report was prejudicial to defendants. Although Doctor Jackson reaches a medical conclusion in the report, the report is in the form of a letter merely requesting who will be responsible for the payment of a full report if it is issued. It does not go into detail and we think it was not important to the ultimate resolution of the case. Furthermore, defendants admit in their supplemental brief that it probably was not a significant factor in the decision of the court.
In any event, there is sufficient evidence in the record to sustain the find of permanent disability without the reports of these three physicians. It was clearly established that plaintiff had no difficulties with her back before the accident, even though she had been employed as a nurse's aide for the preceding eight years. Although there was some indication that plaintiff could have had a pre-existing back ailment, this condition did not cause her pain or prevent her from working. It was also established that plaintiff was never able to return to work after the accident because of the pain in her back. The medical evidence not objected to in this case clearly indicates that plaintiff will not be able to return to work as a nurse's aide. Furthermore, the testimony of Doctor Jory, the treating physician, taken as a whole, indicates that there is a causal connexity between the accident and plaintiff's condition. We stated in Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22, 24-25 (La.App. 3rd Cir. 1975), writ granted 320 So.2d 201 (La.1975), judgment reinstated 321 So.2d 398 (La.App. 3rd Cir. 1975):
We also stated in Williams v. Liberty Mutual Insurance Company, 327 So.2d 462, 467 (La.App. 3rd Cir. 1976):
We therefore find that there was sufficient evidence to support the trial court's finding of permanent and total disability.
We reject defendant's argument that the award for penalties and attorney's fees was erroneous. The defendant insurer had in its possession, reports from Doctor Kingsley dated June 16, 1975, May 6, 1976, and October 22, 1976. Houston General discontinued compensation payments on January 31, 1977, basing the discontinuance on the June 16, 1975 report. It waited approximately one and one-half years from the first report before ceasing payments...
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Jeanise v. Cannon
...medical treatment form part of a claimant's medical expense claim. La.R.S. 23:1201(E); La.R.S. 23:1203(D); Milligan v. Bayou Vista Manor, Inc., 355 So.2d 569 (La.App. 3 Cir.1978). Louisiana Revised Statute 23:1201(E) provides: "Medical benefits payable under this Chapter shall be paid withi......
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Ney v. State Workmen's Compensation Com'r, 15571
...necessarily incurred in receiving medical treatment do come within the language of § 52-1-49(A), supra." Accord, Milligan v. Bayou Vista Manor, Inc., 355 So.2d 569 (La.App.1978); Jack v. Fidelity & Casualty Co. of New York, 326 So.2d 584 (La.App.1976); Chaples v. Gilco, Inc., 280 A.2d 546 (......
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Newell v. U.S. Fidelity & Guaranty Co.
...Butts v. Ins. Co. of North America, 352 So.2d 745 (La.App. 3 Cir. 1977), writ refused, January 30, 1978; Milligan v. Bayou Vista Manor, Inc., 355 So.2d 569 (La.App. 3 Cir. 1978). For the above and foregoing reasons, the action of the trial court is affirmed, and all costs of this appeal are......
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Young v. Hercules, Inc.
...medical and travel expenses is reserved to Young and need not specifically be reserved in the judgment. Milligan v. Bayou Vista Manor, Inc., 355 So.2d 569 (La.App. 3rd Cir.1978); Deshotels v. Fidelity & Casualty Company of New York, 324 So.2d 895 (La.App. 3rd Cir.1975), writ denied 328 So.2......