Roman v. Broussard

• Decision Date: 02 December 1971
• Docket Number: No. 3657,3657
• Citation: 255 So.2d 135
• Parties: Junius Lee ROMAN, Plaintiff-Appellant, v. John S. BROUSSARD and Southern Farm Bureau Casualty Insurance Company, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 135

255 So.2d 135

Junius Lee ROMAN, Plaintiff-Appellant, v. John S. BROUSSARD and Southern Farm Bureau Casualty

Insurance Company, Defendants-Appellees.

No. 3657.

Court of Appeal of Louisiana, Third Circuit.

Dec. 2, 1971.

Domengeaux & Wright by Terry E. Theriot, Lafayette, for plaintiff-appellant.

Caffery, Duhe & Davis by W. Eugene Davis, New Iberia, for defendants-appellees.

Before SAVOY, HOOD and MILLER, JJ.

HOOD, Judge.

Junius Lee Roman filed this suit for workmen's compensation benefits, claiming that he is totally and permanently disabled. The defendants are John S. Broussard, and the latter's insurer, Southern Farm Bureau Casualty Insurance Company. The trial court rendered judgment for defendants, and plaintiff has appealed. We affirm.

The principal issue presented is whether plaintiff has been disabled since the payment of compensation benefits was terminated. Other issues are whether plaintiff should have been allowed to choose the doctor who performed a court-ordered myelogram, and whether the trial judge erred in refusing to reopen the case for additional medical evidence.

Plaintiff, a 22 year old farm laborer, was injured on November 28, 1969, while working for defendant Broussard. His right foot slipped as he attempted to throw two chains on a wagon, and he testified that he immediately felt pain in his back. He stated that he began feeling pain in his right leg about one week later, and that since that time he has suffered almost continually with pain in the middle of his back and pain and numbness in his right leg.

Roman contends that he has been totally disabled from lifting or performing any kind of manual labor since the date of the accident. He has never returned to his former employment, and he has not performed any heavy manual labor since the date of his injury. He acquired the ownership of a bar and lounge in July, 1970, however, and since that time he has worked as a bartender, although he contends that he has done no lifting.

The defendant insurer paid plaintiff compensation benefits at the rate of $45.00 per week for a total of eight weeks following the accident. It also paid him.$157.27 for medical treatment, that being all of the expenses he incurred for such treatment. No other compensation benefits have been paid to Roman.

Plaintiff was treated by Dr. Joseph C. Musso, a general practitioner, from the date of the accident until January 2, 1970, at which time he discontinued going to that physician of his own accord. He was treated by Dr. James Boring Montgomery, also a general practitioner, from January 6, until he was discharged by that doctor on March 24, 1970. Between the last mentioned date and the date of the trial, on November 15, 1970, he was examined by at least four other physicians.

The record contains the testimony of six physicians. Three of them, including an orthopaedic surgeon, a neurosurgeon, and the original treating physician, Dr. Musso, testified that plaintiff had fully recovered from his injury by the time the payment of compensation benefits was discontinued, and that he has not been disabled since that time. The other three physicians, including an orthopaedic surgeon, a neurosurgeon, and the second treating physician, Dr. Montgomery, felt that Roman has sustained a ruptured intervertebral disc as a result of the accident and that he is totally and permanently disabled.

One of the neurosurgeons who testified examined plaintiff twice. The other neurosurgeon and both of the orthopaedists each examined him only once. None of these specialists treated Roman for his injury.

The lay testimony was as conflicting as was the medical evidence. Roman's wife and his brother-in-law testified that plaintiff has suffered severe pain in his back and leg since the accident occurred, and that he has been unable to perform work requiring any lifting, or even minimum exertion. The manager of a beer distributorship, on the other hand, testified that after the accident occurred, plaintiff often came to her place of business and picked up cases of beer, weighing more than 38 pounds, and carried them from the warehouse to his car. She stated that he carried the cases alone, without any help, and that she never saw him limp or favor his leg in any way until the day of the trial.

At the conclusion of the trial, the judge took the case under advisement, stating that the medical evidence was so contradictory that he was unable to determine whether plaintiff was disabled.

A few weeks later the trial judge, finding that the medical testimony 'was in irreconcilable conflict,' invoked the provisions of LSA-R.S. 23:1123, and issued an order on December 22, 1970, directing plaintiff to submit to a myelogram examination to be performed by Dr. John D. Jackson, of Ochsner Clinic, in New Orleans. The order recites that this examination was directed because there was a 'direct conflict of the medical evidence as to the nature and extent of plaintiff's injury, which the court is unable to reconcile,' and because of 'the stated willingness of plaintiff to submit to a myelogram examination, and the willingness of defendant to provide for same.' Roman's approval of that order was evidenced by the signature of his attorney at the bottom of the decree, and by the fact that he voluntarily went to New Orleans and submitted to the myelogram examination.

Dr. Jackson, a neurosurgeon, examined plaintiff clinically on January 11, 1971, and he performed a myelogram examination on January 22, 1971. The doctor promptly submitted a report of those examinations to the court, and copies were supplied to counsel. In that report, the doctor expressed the firm opinion that plaintiff was not disabled. His report concludes with the following statement:

'In conclusion, after examining this patient and studying a completely normal spine x-ray and myelographic evaluation of the lumbar spine, as well as eliciting a profoundly hysterical response from this patient, it is my opinion that he has no objective evidence of degenerative disc disease or a bulging or ruptured lumbar disc.'

After receiving this report plaintiff filed a 'Motion to Reopen Testimony,' in which he alleged that 'this matter should be reopened prior to judgment for the taking of additional testimony in connection with the myelogram evaluation, namely that of Dr. Peter, J. Jannetta, upon his reviewing the myelographic slides, and any doctor desired by the defendant for his review of the slides.' A rule was issued directing defendants to show cause why the case should not be reopened, and after trial of that rule judgment was rendered rejecting plaintiff's demand to reopen the case. Judgment on the merits was rendered shortly thereafter in favor of defendants, rejecting plaintiff's demands and dismissing the suit.

Plaintiff contends primarily that the evidence shows that he is totally and permanently disabled,...