Pellican v. Ashy Const. Co.
| Decision Date | 06 March 1961 |
| Docket Number | No. 192,192 |
| Citation | 127 So.2d 812 |
| Parties | Paul PELLICAN, Plaintiff and Appellant, v. ASHY CONSTRUCTION COMPANY, Defendant and Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Tate & Tate, by Donald Tate, Mamou, for plaintiff-appellant.
Guillory & Guillory, by Isom J. Guillory, Jr., Eunice, for defendant-appellee.
Before FRUGE , SAVOY and HOOD, JJ.
This is a suit for workmen's compensation benefits in which plaintiff alleges that he is totally and permanently disabled as the result of a leg injury sustained by him while employed by defendant. At the trial of the case, counsel for both parties stipulated that the only question presented was 'whether or not this man was disabled as the result of an injury, and the length, extent and duration.' The trial judge rendered judgment in favor of defendant dismissing plaintiff's suit, and plaintiff has appealed from that judgment.
The evidence establishes that on April 15, 1958, during the course of plaintiff's employments as a common laborer by defendant, a log struck or rolled on plaintiff's right leg causing the injury which forms the basis for this suit. Defendant at that time was doing construction work in connection with oil field and pipeline operations, and the accident occurred while plaintiff was sawing logs as a part of defendant's work in clearing a right-of-way.
Plaintiff received medical treatment for this injury, including hospitalization, and he returned to work for defendant on May 5, 1958, about three weeks after the accident occurred. He worked for only two days on that occasion, however, and during those two days he worked as a 'swamper,' which is lighter work than that which he performed prior to the day of the accident. He has not worked for defendant since May 6, 1958. Defendant has paid all of the medical and hospital bills incurred in the treatment of plaintiff's injury, and it also has paid compensation to plaintiff at the rate of $35 per week from the date of the accident until May 7, 1958. No further payments of compensation have been made to plaintiff since this last mentioned date. Defendant contends that plaintiff had fully recovered from his injury by May 7, 1958, and that he has had no disability attributable to the accident since that date.
Dr. J. J. Stagg, a general practitioner and surgeon, examined plaintiff on April 17, 1958, two days after the accident occurred, and found that plaintiff at that time was suffering from a contusion of the right lower leg and thrombophlebitis of that leg. The thrombophlebitis was described as a blood clot in the saphenous vein on the right side. Dr. Stagg treated plaintiff from that date until May 2, 1958, the treatment including hospitalization because of the thrombophlebitis from April 21 to April 29, 1958. On May 2, 1958, Dr. Stagg advised plaintiff that he could return to work. Plaintiff did return to work for defendant on May 5, 1958, and as has already been pointed out, he worked as a 'swamper' for two days. He returned to Dr. Stagg on May 12 complaining that his leg swelled while he worked. The doctor found no swelling, however, and after an examination made on that date, he concluded that plaintiff had fully recovered and he thereupon discharged plaintiff. Dr. Stagg testified that he did not think that it was possible that plaintiff's right posterior tibial artery was injured or damaged in any way in the accident which occurred on April 15, 1958, and that there could be no causal connection between the accident and the arteriolosclerosis or calcification in the tibial artery found by other physicians more than a year later.
Dr. C. V. Hatchette and Dr. George B. Briel, orthopedic surgeons, examined plaintiff on April 21, 1959, approximately one year after the injury occurred. Dr. Hatchette testified that the clinical and X-ray examinations made by him on that date were completely negative as to any injury, thrombophlebitis or disability relating to plaintiff's right leg, and that in his opinion plaintiff could return to gainful employment of a physical nature. Although he found no evidence of disability and concluded that plaintiff was not disabled, Dr. Hatchette further testified that it was Possible that plaintiff had received an injury to the arterial or venous circulation of the right leg at the time of injury which resulted in a local thrombophlebitis, with some residual effects, but that this was purely speculative and that it would be unusual for a clot to remain in a vein for a period of over a year without symptoms.
Dr. Briel did not testify, but a written report which he submitted to plaintiff's attorney was received in evidence by stipulation of counsel. According to this report, Dr. Briel found no evidence of disability from the clinical examination which he made, but X-rays showed some calcification present in the posterior tibial artery. Without expressing any opinion as to whether such a condition is disabling or whether there could be a causal connection between the accident and the arteriolosclerosis which he found, Dr. Briel simply suggested that since plaintiff continued to complain of pain he should be examined by a general surgeon.
Dr. Benjamin M. Rush, a general surgeon and proctologist, examined plaintiff on September 23, 1959, about 17 months after the accident occurred. He concluded from that examination that plaintiff was suffering from a chronic peripheral vascular disease and that he then had a partial or complete occlusion of the right posterior tibial artery. He examined X-rays made by Dr. Stagg shortly after the accident occurred and other X-rays made of plaintiff's leg in April, 1959. The latest X-rays, according to his testimony, showed some calcification of the right posterior tibial artery, while those made by Dr. Stagg did not show any such calcification. He conceded, however, that a different technique was used by Dr. Stagg and that the X-rays which he took could not be considered as establishing the absence of calcification at that time. Dr. Rush found no evidence of thrombophlebitis or any residual disability from that condition. He testified that in his opinion the occlusion of the right posterior tibial artery Could have been caused or hastened by the accident of April, 1958, but that if there was such a connection between the accident and plaintiff's existing condition he thought the occlusion...
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