Scott v. Acadian Concrete Co., Inc.

• Decision Date: 10 November 1987
• Docket Number: No. 86,86
• Citation: 516 So.2d 446
• Parties: Emmanuel SCOTT v. ACADIAN CONCRETE CO., INC. et al. CA 1268.
• Court: Court of Appeal of Louisiana — District of US

Page 446

516 So.2d 446

Emmanuel SCOTT v. ACADIAN CONCRETE CO., INC. et al.

No. 86 CA 1268.

Court of Appeal of Louisiana First Circuit.

Nov. 10, 1987.

Rehearing Denied Jan. 5, 1988.

Writ Denied March 11, 1988.

Gordon Hackman, Boutte, for plaintiff and appellant Emmanuel Scott.

Mary Clare Hartman and E.S. "Ned" Nelson, New Orleans, for defendants and appellees Acadian Concrete Co., Inc. and North River Ins. Co.

Before LANIER, CRAIN and LeBLANC, JJ.

CRAIN, Judge.

Plaintiff, Emmanuel Scott, was employed by Acadian Concrete Company (Acadian). His job consisted primarily of mixing concrete. A few days prior to March 28, 1983, during the course and scope of his employment, plaintiff accidentally spilled the contents of a bag of cement. Much of the powdered cement fell into his work shoes. Upon complaining of a burning sensation in his feet, plaintiff was hospitalized at South Louisiana Medical Center (SLMC) from March 28, 1983, to April 8, 1983. The treatment was for cellulitis and inflammation of the right foot, the underlying etiology of which was suspected to be chemical burns caused by wet cement or "cement poisoning". Plaintiff returned to work on approximately April 16, 1983. On April 20, 1983, plaintiff dropped a concrete block on his right foot and had not returned to work since that date.

Plaintiff was treated as an outpatient at SLMC and was again hospitalized from July 15, 1983 to August 3, 1983, for cellulitis of the right foot and inflammation of the left leg both of which again were suspected to be caused by either chemical burns or contact dermatitis. From October 7, 1983, to April 25, 1984, plaintiff was treated by Dr. Helen Selser, dermatologist, for ulceration of the left foot. Dr. Selser diagnosed plaintiff to be suffering from an allergic reaction to chemicals present in shoes. In her opinion, plaintiff was able to return to his previous work as of April, 1984, provided he wear shoes which do not contain the chemicals to which plaintiff is allergic.

North River Insurance Company (North River) was the worker's compensation insurer prior to April 6, 1983. Maryland Casualty Company (Maryland) was the worker's compensation insurer thereafter. Plaintiff instituted this worker's compensation action against North River, Maryland and Acadian. Plaintiff received no worker's compensation benefits before the institution of this action. Prior to the date of trial Maryland, Acadian and plaintiff compromised the suit and Acadian and Maryland were dismissed from the action. Plaintiff reserved all rights against North River regarding the "accident of March 28, 1983."

After trial on the merits, judgment was rendered in favor of plaintiff against North River and Acadian for the temporary total disability occurring during the time frame of March 28 to April 16, 1983. The trial court found that plaintiff was no longer disabled when he returned to work on April 16, 1983, and that additional problems suffered by plaintiff resulted solely from the work-related injury which occurred on April 20, 1983. North River's refusal to pay worker's compensation benefits to plaintiff for the time period of March 28 to April 20, 1983, was found to be arbitrary, capricious and without probable cause. Plaintiff was awarded worker's compensation, medical expenses, penalties, attorney fees, legal interest from date of judicial demand and expert witness fees. From this judgment plaintiff appeals alleging as error: (1) the trial court's determination that the accident of April 20, 1983, was "totally responsible for plaintiff's condition after April 16, 1983"; (2) the trial court's failure to award worker's compensation benefits through April 25, 1984; and (3) the trial court's improper admission of the use of the "special defense of a 'second accident.' "

In the first and second assignments of error plaintiff contends that the trial court erred in finding that a second accident was totally responsible for plaintiff's condition after April 16, 1983. Plaintiff contends that the work-related condition for which plaintiff was hospitalized from March 28 to April 8, 1983, progressively worsened resulting in temporary total disability from March 28, 1983 to April 25, 1984.

The final diagnosis for plaintiff's initial hospitalization of March 28, 1983 to April 8, 1983, was "alcohol abuse and dependence; alcohol withdrawal syndrome; cellulitis and chemical burns of the right foot and tinea pedis." He was given prescriptions for Silvadene and Lotrimin creams and scheduled for follow-up as an outpatient at the SLMC Surgery Clinic. Plaintiff stated that he returned to work on or around April 16, 1983, because he needed the money, despite the fact that his foot was not completely healed. On April 20, 1983, plaintiff testified that he dropped a concrete block on his right toe which worsened his condition.

Plaintiff was seen for follow-up treatment at SLMC Surgery Clinic on April 20, 1983. The progress notes of that visit state: "Foot is healing.....Minimal swelling. No evidence of cellulitis at present time." He was advised to continue the present course of treatment. He was next seen at SLMC Medicine Clinic on April 27, 1983. The progress notes of that visit reveal that the right foot was healing although some depigmented areas remained and in two weeks the new skin should be thick enough to enable plaintiff to return to work. Plaintiff was again seen for follow-up care at SLMC Surgery Clinic on June 20, 1983. According to the progress notes of that visit, plaintiff suffered from possible contact dermatitis.

Plaintiff was again hospitalized at SLMC from July 15, 1983 to August 3, 1983. Upon admission to the...