Powell v. Patterson Truck Lines, Inc.

• Decision Date: 17 November 1969
• Docket Number: No. 7777,7777
• Citation: 228 So.2d 254
• Parties: Troy S. POWELL v. PATTERSON TRUCK LINES, INC. and the Aetna Casualty and Surety Company.
• Court: Court of Appeal of Louisiana — District of US

Page 254

228 So.2d 254

Troy S. POWELL v. PATTERSON TRUCK LINES, INC. and the Aetna Casualty and Surety Company.

No. 7777.

Court of Appeal of Louisiana, First Circuit.

Nov. 17, 1969.

Kenneth W. Manuel, of Ungar, Dulitz, & Martzell, New Orleans, for plaintiffs-appellant.

Robert L. Morris, of O'Neal, Waitz & Henderson, Houma, for defendants-appellees.

Before LOTTINGER, REID and BLANCHE, JJ.

REID, Judge.

This action for workmen's compensation benefits was brought by Troy S. Powell against his employer, Patterson Truck Lines, Inc. and his employer's workmen's compensation insurer, The Aetna Casualty and Surety Company, seeking total and permanent disability for injuries allegedly growing out of an accident which occurred in the course of plaintiff's employment.

Plaintiff's petition alleges that on June 6, 1966, while he was employed by Patterson Truck Lines, Inc., his back and left knee and ankle were injured in an automobile accident which occurred near LaRose, Louisiana, and that as a result of said accident and injuries he has been rendered totally and permanently disabled from performing the duties of his occupation, or any other occupation reasonably similar thereto. He further alleges receiving compensation payments from the date of injury to July 22, 1966, at which time he said the payments were discontinued without good cause . He prays for judgment for $35.00 per week for a period of 400 weeks, with legal interest, medical expenses, attorney's fees, and penalties.

The defendants filed an answer admitting that a slight accident happened, that compensation payments were paid up until July 22, 1966, when they were terminated, admit that the Aetna Casualty and Surety Company was the compensation carrier of defendant, Patterson Truck Lines, Inc., and deny all the remaining allegations of plaintiff's petition, and especially that they are liable for any further compensation at all.

The matter was duly tried on the merits and the trial Court, for written reasons assigned, rendered and signed judgment in favor of the defendants and against the plaintiff, rejecting plaintiff's claim at his cost. From this judgment plaintiff has prosecuted a devolutive appeal to this Court.

The issue in this case is mainly one of fact. There is no question but what the plaintiff was injured while acting in the scope of his employment and that his employment was hazardous and came under the provisions of the Workmen's Compensation Act. It is equally true that he received his compensation up until July 22, 1966, at which time he returned to work and continued working until his services for the Patterson Truck Lines were voluntarily terminated by him.

The trial Judge rendered a very excellent analysis and statement of the facts as found by him, which we have taken the liberty of copying and incorporating a portion of the same as our own, as follows, to-wit:

'Plaintiff started working with Patterson Truck Line, Inc. in December of 1965 as a truck driver. He had a preemployment examination by Dr. W. A. Marmande, who found him fit for duty. On June 6th, 1966, plaintiff had an accident with his truck turning it over on a Bayou Lafourche road and approximately one hour and a half after the accident was seen by Dr. William George at Our Lady of the Sea Hospital on Bayou Lafourche. X-rays of the lumbosacral spine and left knee were negative. Dr. George found very little, if anything, physically wrong with plaintiff and suggested that he go home and consult his family physician. On June 13th, 1966, plaintiff visited his family physician, Dr. Saul Landry, Jr., who thoroughly examined plaintiff and diagnosed his injuries as a hematoma, a contusion of the left thigh, left ankle and lower back . Dr. Landry treated plaintiff until July 23rd, 1966 on which date he discharged the plaintiff as completely cured and able to return to work. On that same day compensation benefits were terminated.

'The plaintiff claims the termination of these benefits at this time was without justification.

'Mr. Powell returned to work for Patterson Truck Lines on July 25th, 1966. He went back to regular duty. He claims that he was 'carried' by some of his fellow employees. There is nothing in the record to justify this conclusion. One of his co-employees stated that at one time he did hear Powell complain of having some trouble. This witness also stated that he helped Powell do some of his work. However, the fellow employee explained that in the trucking business, when there is a fleet of trucks delivering a rig or different materials, that the truck drivers always help each other. This fellow employee who testified for plaintiff explained that he was a much taller and stronger man than Powell and that he could reach on top of the truck load and could pull on the binders which hold down the load much more easily than could Powell. This was an assist to Powell as a fellow truck driver, not because of Powell's physical disability.

'Powell continued to work with Patterson Truck Lines until October 10th, 1966, when he decided that his truck was not loaded properly. He was told by a superior to either proceed with the truck or his employment would be terminated. In the opinion of Patterson Truck Lines the truck was properly loaded. Mr. Powell abandoned his truck at a location undesignated by his superiors and called home for someone to come and get him. This termination was unrelated to his accident.

'Powell then went to work for J. T. Truck Line where he worked for about two months. Then he went to work for Bourg Truck Line for about a week. He then worked for the Flash Truck Line for approximately two months. During this long period of employment with various truck lines as a full-fledged truck driver performing the same duties that he performed prior to his accident complained of, not one time did Powell complain to any of the management of any of these truck lines concerning his alleged injury. Other than his one conversation with one truck driver of Patterson to the effect that he was still hurting, this record is void of any testimony supporting plaintiff's claim of severe pain while working as a truck driver after the accident.

'Plaintiff filed the present suit on July 20th, 1967. The Court mentions this because of certain events. On February 15th, 1967, plaintiff visited Dr. Landry in reference to an infected jaw. While there he casually mentioned his knee. The doctor examined the knee but did not find the complaint of such a serious nature as to warrant treatment.

'In May, 1967, Mr. Powell sought employment with Jefferson Truck Line. This is shortly before his suit was filed. He was examined by Dr. Roy St. Martin on behalf of Jefferson Truck Line. Powell explained his disabilities and injuries to Dr. St. Martin and, of course, Dr. St. Martin then thoroughly examined plaintiff. He found a slight swelling in the knee. He promptly turned Powell down for employment.

'Dr. G. Gernon Brown of New Orleans examined the plaintiff on three occasions--June 12th, August 28th and September 18th, 1967. In the first examination, Dr. Brown found a pre-existing developmental defect of the spine and also found a defect in the left knee. The report of Dr. Brown is found annexed to Dr. Brown's deposition filed in the record. The report shows a finding of clinical evidence of a chondromalacia of the left patella. The doctor was looking for a tearing of the meniscus. He did not...