Rushing v. Weyerhaeuser Co.
| Decision Date | 04 September 1962 |
| Docket Number | No. 440,440 |
| Parties | Johnny W. RUSHING v. WEYERHAEUSER COMPANY et al. |
| Court | Court of Appeal of Louisiana — District of US |
A. J. Marciante, New Orleans, for plaintiff-appellant.
Curtis, Foster, Dillon & Huppenbauer, Gerard M. Dillon, Francis J. Mooney, Jr., New Orleans, for defendants-appellees.
Before MILLER, VIDRINE and CUTRER, JJ.
By suit filed February 21, 1961, Johnny W. Rushing seeks to have annulled a compromise settlement of a workmen's compensation claim approved by judgment of court signed July 14, 1960. In the joint petition of plaintiff, Rushing, and defendants Weyerhaeuser Company, Employer, and Fireman's Fund Insurance Company, Insurer, by which the parties sought the July 14, 1960 compromise settlement, the parties alleged:
'III
'That on or about June 15, 1960, while the Employee was engaged in the course and scope of his employment by the Employer as a laborer, he suffered a severe headache and later that evening, a numbness came over him which caused him to fall to the ground, which said symptoms were later described in a report of Dr. Richard W. Levy, dated June 21, 1960, a copy of which is attached hereto and made a part hereof as having been caused by spontaneous subarachnoid hemorrhage.
'IV
'That immediately following the said occurrence and thereafter, the Employee was furnished prompt medical attention; and that in behalf of the said Employee, the Insurer has paid doctors, and other medical bills totalling $59.75.
'V
'The Employee is now contending that he has not completely recovered from his aforesaid attack; that he said occurrence was the result of the work in which he was engaged at the time of the occurrence; that he is unable to perform the work in which he was engaged on the date of the aforesaid occurrence; and that, therefore, he is entitled to receive workmen's compensation payments from the Employer and/or the Insurer of the full sum of $35.00 per week for the duration of his disability, not to exceed a period of 400 weeks from the date of the aforesaid occurrence.
'VI
'Employer and Insurer are now contending that the aforesaid occurrence and temporary disability of the employee was not an 'accident' or an 'injury' within the meaning of the Workmen's Compensation Laws; that the Employee has fully recovered from the effects of the aforesaid occurrence; that he is not permanently and totally disabled within the meaning of the Workmen's Compensation Laws of the State of Louisiana; that he is able to perform the work in which he was engaged on the date of the aforesaid occurrence; that he is not entitled to receive any Workmen's Compensation payments from the Employer and/or the Insurer, and in support of their contentions, the Employer and Insurer annex hereto a copy of a report of Dr. Israel Fisher, dated July 9, 1960.
'VII
'Petitioners thusly aver that a bona fide dispute exists between Employee on the one hand and Employer and Insurer on the other hand with respect to whether or not the Employee suffered an 'accident' or 'injury' within the meaning of the Workmen's Compensation Laws; with respect to whether or not Employee has fully recovered from the effects of the aforesaid occurrence; with respect to whether or not Employee is able to perform the duties of the employment in which he was engaged on the date of the aforesaid occurrence; and with respect to whether or not he is disabled within the meaning of the Louisiana Workmen's Compensation Laws, and with respect to whether or not the said Employee is entitled to receive any Workmen's Compensation payments from Employer and/or Insurer.'
The medical reports attached to the settlement were by Dr. Israel Fisher, stating that he found no evidence of injury at this examination of June 17, 1960, but referred plaintiff to Dr. Levy. Dr. Levy's medical report concluded that plaintiff had sustained a spontaneous subarachnoid hemorrhage and stated:
There followed an allegation that plaintiff was not represented by an attorney with the request that the court appoint an attorney at law to represent and advise the Employee relative to the proposed compromise settlement. An attorney at law was appointed and certified that he consulted with and advised the Employee of the legal effect of the compromise and recommended that the settlement be approved by the court. The settlement for $300.00 was approved by judgment of court dated July 14, 1960, and on that same day, plaintiff acknowledged payment of said sum 'in full and final settlement of the judgment * * *.'
The allegations on which plaintiff must rely to set aside the July 14, 1960 judgment are:
'7.
'That thereafter (after plaintiff had released from the hospital) petitioner was contacted by a representative of the defendant insurance company, who advised petitioner that his injury was not in anyway connected with or caused by his job and that petitioner was accordingly not entitled to any...
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