Robertson v. Scanio Produce & Institutional Foods, Inc.
| Decision Date | 02 April 1984 |
| Docket Number | No. 83-C-2009,83-C-2009 |
| Court | Louisiana Supreme Court |
| Parties | Richard ROBERTSON v. SCANIO PRODUCE & INSTITUTIONAL FOODS, INC. et al. |
Edmond J. Harris, Heisler & Wysocki, New Orleans, for plaintiff-applicant.
John Robert Sarpy, Porteous, Hainkel, Johnson, Sarpy, New Orleans, for defendants-respondents.
In this worker compensation case, the work-related accident and the worker's subsequent disability are undisputed; the issue is whether there was a causal relationship between them. The trial court found that there was none and the court of appeal affirmed. We reverse. The causal relationship between a work accident and an employee's disability may be inferred when there is proof of an accident and an ensuing disability without an intervening cause. In evaluating the evidence, the trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record furnishing a sound reason for its rejection. The employee's uncontradicted testimony, which was objectively corroborated by medical and circumstantial evidence, furnished grounds for such an inference that was not rebutted by the employer's evidence.
Richard Robertson was injured on December 24, 1980 when he tripped and approximately 300 pounds of frozen chicken fell on top of him at a Popeye's fried chicken outlet. This accident occurred during Robertson's employment with defendant Scanio Produce & Institutional Foods, Inc. As a result of this mishap Robertson complained of lower back pain, was hospitalized and placed in traction. An orthopedic surgeon, Dr. L. Thomas Cashio, treated Robertson during the period following the accident and based solely on x-rays diagnosed a lumbar strain. Neither a myelogram nor any other diagnostic test was ordered or performed. Robertson was released from the hospital on January 14, 1981 despite continued complaints of pain at the fifth lumbar vertebra, or L-5 level of his back, and on January 22 Cashio told his patient that he could return to work but was restricted to light activity. Robertson's unrebutted testimony at trial was that he returned to Scanio but was refused further employment because there was no "light duty" available. The employee continued to see the doctor during February with reports of pain, yet, on February 19 the physician released Robertson to return to normal work. Worker compensation benefits which had been paid since the initial accident claim, were terminated the following day. On March 17, Robertson filed suit against Scanio and its insurer, State Farm Fire & Casualty Co., for reinstatement of benefits, medical expenses and statutory penalties. Two days later Robertson visited Dr. Cashio for the last time. Dr. Cashio prescribed muscle relaxers and advised the patient to continue to increase his level of activity despite continuing pain and suggested that he wear a soft corset for back support. On the same day, Robertson's supervisor at Scanio told him, "I can't use you because you'll just go out and hurt yourself again."
Between his rejection by Scanio and his next medical treatment eleven and a half months later, Robertson held three jobs and performed a temporary roof repair assignment, all of which required some heavy manual labor. He testified at trial that he left each of these jobs after a matter of weeks because his pain either prevented him from working or kept him from arriving on time. He stated that he experienced pain with heavy exertion, but the pain diminished with reduced activity. He explained that he had taken these jobs, despite his pain, to provide for his wife and children. Further, Robertson testified that he was limited to manual labor because his education had ended with the seventh grade. His difficulty in reading exhibits submitted to him during his testimony indicated that he was virtually illiterate. He stated that he suffered no other back injuries during his work at the subsequent jobs and that he filed no other worker compensation claims. In order to be hired for later jobs Robertson underwent two pre-employment physicals. He admitted that in reporting his medical history he purposefully concealed his previous injury in order to enhance his chances of obtaining work. During cross examination defense counsel questioned Robertson concerning his failure to seek medical assistance after his last visit to Dr. Cashio. Robertson responded that he was without funds to pay a doctor after defendants had stopped paying his medical expenses. He claimed that he was unaware free medical treatment for his condition could be obtained at state expense. The witness maintained throughout his testimony that he had followed Dr. Cashio's instructions to try to work, and that he continued to report his pain to his attorney and others. In addition to his testimony, Robertson stated in his answers to interrogatories filed on July 16, 1981 that he had complained of pain since the accident, six months earlier, that he was still totally disabled, and that after the doctor told him to perform light work he still experienced substantial pain upon exertion.
Robertson was next treated in March 1982 by neurosurgeon Dr. David M. Jarrott, whom he consulted on the recommendation of his second attorney. The first attorney, who filed this suit, left the lawfirm which continued to represent Robertson.
Dr. Jarrott noted Robertson's history of back pain and then took a myelogram which proved negative. Because Robertson was still experiencing pain Jarrott suggested surgery or another less drastic diagnostic procedure, a discogram. Dr. Jarrott testified that a significant number of physicians still rely on discograms, but that this test is no longer in vogue, owing in part to the popularity of myelograms. Robertson opted for the discogram. The surgeon interpreted the discogram to show a rupture at the L5-S1 disc level, the point at which Robertson had experienced pain immediately following his accident at Popeye's. Dr. Jarrott operated and discovered a herniated disc.
The plaintiff in a worker compensation suit must establish by a preponderance of evidence that the injury sustained was caused by the accident at issue. Martin v. Zachry, 424 So.2d 1002 (La.1982); West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Absent proof of an intervening cause, a claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, and symptoms of the disabling condition commenced at the time of the accident and continuously manifested themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977). See also, Guillory v. USF & G, 420 So.2d 119 (La.1982); 3 Larson, The Law of Workmen's Compensation, § 80.33(d) (1983 ed.) (discussing Louisiana's treatment of this presumption and similar presumptions recognized in West Virginia and Hawaii).
The presumption of causation is...
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