Richard v. Barber Bros. Co.

• Citation: 112 So.2d 168
• Decision Date: 01 May 1959
• Docket Number: No. 4822,4822
• Parties: August RICHARD, Plaintiff-Appellant, v. BARBER BROTHERS COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana (US)

Page 168

112 So.2d 168

August RICHARD, Plaintiff-Appellant, v. BARBER BROTHERS COMPANY, Defendant-Appellee.

No. 4822.

Court of Appeal of Louisiana, First Circuit.

May 1, 1959.

Rehearing Denied May 27, 1959.

James Domengeaux, Bob F. Wright, Lafayette, for appellant.

Landry, Watkins, Cousin & Bonin, New Iberia, for appellee.

Before LOTTINGER, TATE and HOOD, JJ.

TATE, Judge.

Claiming he is totally and permanently disabled, the plaintiff employee sued his former employer for workmen's compensation benefits. The trial court granted compensation at the rate of $25.27 per week from April 5, 1954, the date of the accident, until March 15, 1955 (less credit for compensation paid), holding that the employment-caused disability had ended by that latter date.

The sole question raised by plaintiff's appeal concerns whether his disability persisted beyond March 15, 1955.

While the period of prolonged physical rest had produced a cessation of the symptoms of back pain by the date in question, plaintiff strenuously contends that the court should accept the testimony of Dr. G. N. DesOrmeaux, the initial attending physician, who had found the plaintiff free of disabling symptoms in March of 1955 but who found that, as not uncommon in lumbosacral back sprains, the disability resulting from the accident was reactivated from its dormant state by plaintiff's working and by exertion following his initial discharge by the physicians after the period of initial disability.

Corroborating this physician's testimony of plaintiff Richard's continued disability by reason of a residual back condition and of the aggravation into painfulness of a previously asymptomatic arthritic condition is the testimony of Dr. Jack Wickstrom, orthopedist, and of Dr. J. B. Montgomery, general practitioner. All these medical witnesses found plaintiff's complaints of disabling pain objectively supported by marked involuntary back muscle spasm and by an involuntary restriction of back motion.

Directly contradicting the testimony of these physicians is that of Dr. James Gilly and Dr. G. C. Battalora, orthopedists, who found plaintiff to be free of disability and grossly exaggerating his complaints and who--while noting the manifest muscle spasm and restriction of motion--came to the conclusion that such symptoms were voluntarily produced by plaintiff. This conclusion was based upon the lack of or the moderation in reactions when plaintiff's attention was distracted from the examination of the back itself. To similar effect was the testimony of Dr. Henry Voorhies, general practitioner. Dr. Gilly, who had initially found plaintiff disabled in September, 1954, flatly stated his opinion that this employee was completely cured and malingering following March, 1955.

Plaintiff, corroborated by members of his family and a neighbor, first testified that he performed even light duties with pain and that he had been unable to perform any gainful employment since the accident.

Defendant then produced some Pendleton detectives who had placed plaintiff under surveillance on various dates between May 3, 1955 and August 15, 1957,¹ and who observed and took films of plaintiff performing fairly heavy farm chores intermittently through October 25 and 26, 1955: picking corn (requiring bending), loading and unloading potato crates off a truck, and plowing with a fair amount of agility. Counsel for plaintiff points out a certain amount of awkwardness manifested by plaintiff in the heavier duties as indicating the duties were performed with difficulty; counsel for defendant ascribes such awkwardness as was indicated as simply usual to a man of plaintiff's fifty-seven years and as not indicating pain or disability.

Based upon this positive evidence that plaintiff had indeed performed strenuous duties, subsequently on rebuttal admitted by plaintiff to be true despite his previous positive denial that he had done or could do so, and upon defendant's medical testimony to the effect that plaintiff was malingering and no longer disabled, the trial court limited compensation for disability to March 15, 1955, the date of his initial discharge by the attending physicians. The trial court found plaintiff 'recuperated' as of that date and 'that such injury as plaintiff May have had at the time of the trial was a subsequent injury, If he was actually disabled and not feigning.' (Italics ours.)

Counsel for appellant correctly contends that if the plaintiff was actually unable to work at the time of the trial because of a...