Morris v. Kaiser Aluminum & Chemical Co., 7773

• Decision Date: 17 November 1969
• Docket Number: No. 7773,7773
• Citation: 228 So.2d 261
• Parties: Alton MORRIS v. KAISER ALUMINUM AND CHEMICAL COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 261

228 So.2d 261

Alton MORRIS v. KAISER ALUMINUM AND CHEMICAL COMPANY.

No. 7773.

Court of Appeal of Louisiana, First Circuit.

Nov. 17, 1969.

R. C. Edwins, Baton Rouge, for appellant.

Billy Wilson, of Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellee.

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

Plaintiff appeals from the judgment of the trial court rejecting his claim for total permanent disability benefits under the Louisiana Workmen's Compensation Act. The sole issue is whether plaintiff's disabling back injury resulted from an accident which occurred during the course and scope of his employment as a laborer by defendant. We affirm the judgment of the trial court which held plaintiff failed to prove causal connection between the accident and his present disability.

Plaintiff, a former regular employee of defendant, was, for some years prior to 1964, employed by defendant intermittently as laborer on projects known as 'turn around' jobs.

From February 17, 1964, to February 22, 1964, plaintiff was employed on a 'turn around' job (technically described as an overhaul of an operational facility) which involved removal of sand with a wheelbarrow from beneath an apparatus known as a 'digester tank'. Plaintiff was working the night shift (from 7:00 P.M. to 7:00 A.M.) and maintains the accident occurred at approximately 2:00 A.M. on either Tuesday, February 18, or Wednesday, February 19, 1964 . According to Morris, he struck his back on the edge of the tank upon emerging from beneath the facility and rising from a stooped position. Appellant related that his back hurt immediately but the pain soon subsided and he continued working until morning. Appellant also stated he informed his brother, Huey P. Morris, and one Henry Browder (co-workers) of the accident. Plaintiff further testified that he worked until laid off the following Saturday on which day he drove a bus to Mississippi to convey members of a church congregation to a meeting. On arriving at his destination his back hurt so badly he was unable to leave the bus. The following day he consulted a physician and commenced a period of treatment that continued to the time of trial.

It is undisputed that plaintiff worked without any noticeable impairment of his ability until his layoff on February 22, 1964. Thereafter, on February 24, 1964, plaintiff executed a statement to the effect he received no injuries during the period of employment from February 17, to February 22, 1964. On April 5, 1964, plaintiff reported the accident to his employer. The report indicates there were no witnesses and also states plaintiff neither told anyone of the incident nor reported the matter to his foreman. Despite this acknowledgment on plaintiff's part, Huey P. Morris testified that while working with plaintiff early one morning, plaintiff informed him that plaintiff had struck his back. Henry Browder testified that he observed the accident but that plaintiff appeared to have recovered rapidly and apparently suffered no ill effects.

Plaintiff concedes he did not report the injury immediately because he seemed to have recovered quickly from the blow and continued to work until laid off. His testimony is that the effect of the blow did not become manifest until a day or two after the accident. He also stated that following the onset of pain, he was no longer able to work. Plaintiff also admits he was familiar with the procedure for reporting injury to his employer. In this regard it appears that during his employment, plaintiff reported to defendant's infirmary over ninety times with medical complaints ranging from indigestion to bodily injury. Also plaintiff obtained compensation for a previous injury sustained while working for Kaiser.

In August, 1964, and January, 1965, plaintiff was employed by defendant on other 'turn around' jobs. Plaintiff acknowledges that in each instance he was examined before employment and denied suffering from any physical disability. Plaintiff complained that because of economic necessity he worked in pain on these latter occasions. Plaintiff also related that he was 'carried' by his fellow employees who relieved him of all heavy work.

According to plaintiff, he consulted Dr. Isadore I. Rosen, General Practitioner, on the Sunday following his trip to Mississippi. The following day, on the advice of a friend, plaintiff consulted Dr. Richard M. Pullig, who placed plaintiff in traction.

Dr. Rosen testified he kept no record of plaintiff's visit and could not recall the exact date thereof. From recollection, he set the date of plaintiff's injury 'on or about February 26, 1964' and diagnosed plaintiff's condition on this occasion as traumatic myositis of the lower back.

Dr. Pullig, General Practitioner, stated he first saw plaintiff on March 3, 1964. He diagnosed plaintiff's condition as lumbosacral sprain and was of the opinion the injury was such that its effects would be felt upon occurrence of the accident. Dr. Pullig prescribed muscle relaxants and pain relievers and placed plaintiff in traction from March 16 to March 21, 1964. Plaintiff returned March 24, 1964, still complaining of back pain whereupon Dr. Pullig resumed the former medication and again placed plaintiff in traction until March 27, 1964. The records of the Clinton Infirmary (where plaintiff was hospitalized on March 16, 1964) show the injury occurred 'three weeks or so ago.' It does not appear on what basis this conclusion was reached. Dr. Pullig saw plaintiff again on April 3, 1964, on which date plaintiff was referred to Dr. I. L. George, Orthopedic Surgeon, because of plaintiff's complaints of persistent back pain. Dr. Pullig also saw plaintiff on April 10 and 29, 1964. His final diagnosis was lumbosacral strain. Dr. Pullig advised plaintiff to return if plaintiff did not improve. Plaintiff did not return.

Dr. George examined plaintiff on April 7, 1964, and found plaintiff suffering from lumbosacral strain. He prescribed a back brace and a one-fourth inch build up on plaintiff's left shoe.

Plaintiff was examined February 6, 1968, by Dr. Kenneth Cranor, Orthopedist. Plaintiff related to Dr. Cranor a history of a back injury resultant from an accident in February, 1964, which produced no immediate pain but which became aggravated a few days later. Based on an extensive examination, Dr. Cranor diagnosed plaintiff's condition as a possible herniated intervertebral disc which could only be confirmed by a lumbar myelogram which was not performed. Dr . Cranor was of the opinion plaintiff suffered a 5% Disability of the body as a whole. Dr. Cranor could not tell how long the condition had existed. He was of the opinion plaintiff was disabled from doing heavy work during the episodic occurrence of acute pain which plaintiff related.

The degree of proof required of a compensation claimant is discussed by Professor Malone in his Louisiana Workmen's Compensation Law and Practice in Par. 252 at page 293. In essence the rule is stated to be that the claimant need introduce only enough evidence to establish that more probably than not, the injury resulted from an accident which occurred within the scope and during the course of the claimant's employment. Numerous cases have so held including among others, Dumphy v. Liberty Mutual Insurance Co., La.App., 177 So.2d 610; Town of Slidell v. Temple, 246 La. 137, 164...