Nelson v. Roadway Exp., Inc.

• Decision Date: 21 October 1991
• Docket Number: No. 91-C-0441,91-C-0441
• Citation: 588 So.2d 350
• Parties: Roosevelt NELSON v. ROADWAY EXPRESS, INC. 588 So.2d 350
• Court: Louisiana Supreme Court

Page 350

588 So.2d 350

Roosevelt NELSON v. ROADWAY EXPRESS, INC.

No. 91-C-0441.

588 So.2d 350

Supreme Court of Louisiana.

Oct. 21, 1991.

Rehearing Denied Nov. 21, 1991.

Lawrence K. McCollum, Shreveport, for applicant.

Frank M. Walker, Jr., Lunn, Irion, Johnson, Salley & Charlisle, Shreveport, Brian L. Coody, Lake Charles, for respondent.

WATSON, Justice.

In this worker's compensation suit, the issue is whether the trial court clearly erred in holding that Roosevelt Nelson failed to prove an accident in the course and scope of his employment with defendant, Roadway Express, Inc. LSA-R.S. 23:1021(1); 23:1031.

FACTS

Nelson worked at Roadway for almost fourteen years. He was a dock checker: a checker on a freight dock loads and unloads boxes from large trailers. Because the work is strenuous and involves boxes weighing more than fifty pounds, back injuries are common. Nelson had no serious prior injuries; his average weekly wage was $531.85. Nelson, then 51 years old, said he had an accident Friday night, February 27, 1987, near the end of his shift. He caught a falling box and felt a pull or sting in his back.

Woodward, a co-worker, saw Nelson leaving work that evening. Nelson was favoring his left side and walking in a stooped position. Woodward asked about the problem, and Nelson replied that he had hurt his back unloading freight. Because Nelson appeared to be in considerable pain, Woodward offered to drive him home. Nelson rejected Woodward's offer, saying he could drive and was going home to soak his back.

Johnson, another co-worker, also saw Nelson. Nelson, a wiry person who generally walks fast, was moving slowly from the dock to the parking lot. He told Johnson that he had hurt his back, was on his way home to soak in a hot tub and did not have time to talk. Although Johnson was not on the Roadway work roster that Friday evening, he testified that he was on the premises, probably picking up his paycheck.

After his shift ended at 9:30 p.m., Nelson drove directly home. When he arrived, his back was stiffening; his wife asked what was wrong. Nelson took a bath, ate a light supper and went to bed. Around 1:00 a.m., he awoke with severe pain on the left side of his lower back, the worst pain he had ever encountered.

Nelson called Roadway's manager, Stinson, around 7:30 a.m. Saturday morning to report his back injury. Nelson went to the emergency room of Willis-Knighton Medical Center at approximately 9:30 a.m. Nelson told the nurse and doctor that he had hurt his back lifting heavy boxes at work. Dr. Harry E. Fair, Jr., the emergency room physician, said Nelson's paraspinous muscles were tight and tender. Dr. Fair stated: "Many of these muscles were in spasm and were quite uncomfortable." (Deposition, p. 11). Dr. Fair said objective signs of injury were a positive straight leg raising test and the tender paraspinal lumbar muscles. Dr. Fair diagnosed a lumbar back strain, prescribed Tylenol No. 3 and Naprosyn and referred Nelson to his own doctor.

Nelson has over 27 years of work experience, including a job at the Dallas Police Department and truck driving jobs at Daltex Express and Braswell Motor Freight, but this is his first serious injury. His education is limited; he did not graduate from high school.

On Sunday, March 1, 1987, Nelson completed a Roadway report of injury with the assistance of "Buddy" Capps, his shift supervisor. The report states that the injury occurred while Nelson was "breaking freight", that is, unloading freight. On the diagram attached to the report of injury, Nelson circled his lower back.

On Monday, March 2, Nelson went to the company doctor, Dr. A. Abbot Bullock. Nelson exhibited marked muscle spasms, indicating considerable pain. By March 9, Nelson was beginning to show definitive and localizing signs of disc injury. Dr. Bullock suggested an orthopedic consultation and referred Nelson to Dr. Matthew Ragan Green, Jr.

Roadway insinuates that Nelson faked an injury because he received three warning letters near the end of his Friday evening shift. One letter concerned blocking an aisle with a piece of flat steel; a second involved damaged freight; and a third cited a clerical error. Capps testified that Nelson's job was not in jeopardy because of the letters. The letters are irrelevant because Nelson proved an injury beyond any doubt.

Long, the assistant terminal manager, studied Nelson's compensation claim by examining Nelson's employment record, his report of injury and Stinson's handwritten notes. Long concluded that Nelson was not specific enough about the details of his accident. Although both Dr. Fair and Dr. Bullock observed objective symptoms of injury, Long did not talk to either doctor. Without further investigation, he formally denied Nelson's claim on Monday, March 2 and told Nelson that his medical bills would have to be paid by union insurance.

Dr. Green testified as an expert in the field of orthopedic surgery. He first saw Nelson on March 10, 1987, when Nelson described a job injury on February 27. According to Green, Nelson's scenario was common. Nelson did not have a major disc rupture but a low grade disc bulge, which gradually deteriorated and inflicted pressure on the nerve root, exacerbating the injury. In Dr. Green's opinion, Nelson had sustained "a straining type injury with probably some element of injury to the disc." (Tr. 327).

Dr. Green prescribed a muscle relaxant, anti-inflammatory medication, and an exercise program, which seemed to result in some improvement. However, on March 31, Nelson was having increasing pain radiating into the buttocks and an injection was prescribed. The injection produced improvement through April and most of May, but on May 29, Nelson had radiating pain in his left leg and a decreased ankle jerk on the left side. A lumbar myelogram revealed a herniated disc at L4-5. On June 16, Nelson had no ankle jerk on the left side and was scheduled for an E.M.G., a nerve conduction study. Surgery was scheduled for October 26, 1988, but was postponed because payment through worker's compensation was not available.

In the interim, on May 21, 1987, the Louisiana Department of Labor Office of Worker's Compensation recommended paying Nelson's claim for compensation and assessed penalties and attorney's fees against Roadway. (P.-7).

Nelson had surgery on January 26, 1988: a hemilaminectomy at L4; a foraminotomy at L4; and a hemilaminectomy at L5. A hemilaminectomy is surgical removal of a vertebral lamina on one side only. A foraminotomy removes the roof of intervertebral foramina to relieve nerve root compression. The medical expenses were paid by Nelson's union insurer, Central States Southeast and Southwest Areas Health and Welfare Fund. Central States initially denied the claim as work related and holds a subrogation of Nelson's right to recover against Roadway.

Long admitted telling Nelson to file his medical claim with Central States and to tell Central States he did not get hurt on the job. Long's report states that Nelson's injury occurred off Roadway's premises while Nelson was in bed on Saturday morning. Nelson's claim to Central States also says that he got hurt in bed.

Dr. Green concluded that Nelson sustained a straining back injury, which caused bulging of the disc and compression of the nerve root. This type of injury can unfold over a long period of time and a slight delay in the onset of severe symptoms is common. In Dr. Green's opinion, the lifting injury described by Nelson was more probably than not the cause of the herniated disc for which surgery was performed.

Dr. Green discharged Nelson in April of 1988 with a ten percent disability of the body as a whole and a maximum lifting limitation of fifty pounds. Frequent repetitive lifting was limited to twenty-five pounds. The disability prevents frequent bending, stooping and lifting of light and heavy weights. Nelson's present disability is undisputed.

The trial court concluded that Nelson did not prove an accident. The court of appeal affirmed. Nelson v. Roadway Exp., Inc., 573 So.2d 591 (La.App. 2d Cir.1991). A writ was granted. 577 So.2d 23 (La.1991).

LAW

In 1987, LSA-R.S. 23:1021(1) defined an accident as: "an unexpected or unforeseen event happening suddenly or violently, with or without human fault, and producing at the time objective symptoms of an injury." Although the definition was changed by Act 454 of 1989, the change does not affect this lawsuit. See Leon v. Crowell & Spencer Lumber Co., 151 La. 932, 92 So. 389 (1922).

A claimant must prove that a work-related accident occurred. Holiday v. Borden Chemical, 508 So.2d 1381 (La.1987), on remand, 524 So.2d 285 (La.App. 1st Cir.1988), writ denied, 531 So.2d 283. An accident at work can be proven by a claimant's uncontradicted testimony, corroborated by the medical evidence. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Testimony of fellow employees can also corroborate an accident which produces delayed symptoms of serious injury. Holiday.

There is an accidental injury when a worker's normal duties cause a physical breakdown, an accidental result. Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969); Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972); Chism v. Kaiser Aluminum & Chemical Corporation, 332 So.2d 784 (La.1976); Parks v. Insurance Co. of North America, 340 So.2d 276 (La.1976).

The full consequences of a disabling accident are not always apparent when the injury occurs. See Robichaux v. Realty Operators, 195 La. 70, 196 So. 23 (1940). Thus, an employee who finishes a day's work without reporting an accident is not barred from recovering compensation. Nelson's manual labor at Roadway was sufficiently strenuous to cause injury, and there was no evidence that anything else caused his disability. Compare Gorbach v. Prager, Inc., 310 So.2d 604 (La.1975) (plaintiff claimed a job related injury but had been involved in two automobile...