Shuff v. Liberty Mut. Ins. Co., 339

Decision Date06 November 1961
Docket NumberNo. 339,339
Citation134 So.2d 707
PartiesDudley SHUFF, Plaintiff and Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant and Appellee.
CourtCourt of Appeal of Louisiana — District of US

Jacque B. Pucheu, Eunice, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe, by James E. Diaz, Lafayette, for defendant-appellee.

Before FRUGE , HOOD and CULPEPPER, JJ.

CULPEPPER, Judge.

This is a suit for workmen's compensation. Plaintiff, a 24 year old white man, while engaged in his employment as a common laborer for Hub City Contractors, Inc., suffered an injury to his back while using an ax to nail heavy timbers in a 'board road' on February 20, 1960.

After trial on the merits, the lower court awarded plaintiff compensation at the rate of $35 per week from February 22, 1960 through January 12, 1961, subject to a credit for all compensation paid by defendant. The trial judge also awarded plaintiff judgment for an additional 12% As penalties, and attorney's fees in the sum of $150.

From said judgment plaintiff has appealed, contending that the trial court erred in finding claimant was able to return to work as of January 12, 1961 and seeking amendment of said judgment so as to extend the period of compensation to a full 400 weeks as for total and permanent disability. Plaintiff also seeks an increase in the award of $150 as attorney's fees. Defendant has answered the appeal contending that plaintiff's disabilities ceased on November 17, 1960, that the correct compensation rate is $31.20 rather than $35 per week and that the trial court erred in awarding penalties and attorney's fees.

The first issue for consideration is the extent and duration of plaintiff's disability. As stated above, plaintiff suffered an injury to his back while using an ax to nail the heavy timbers in a board road on February 20, 1960. Although no one else witnessed the accident, the plaintiff was found lying on the ground and stated that he had injured his back. He was sent on that same day to Dr. S. J. Manuel, a general practitioner of Eunice, Louisiana, who prescribed medication for pain and sent plaintiff home with instructions to return on the following Monday, February 22, for further examination. Following this second examination on February 22, Dr. Manuel placed petitioner in the hospital where he remained from February 22 through February 27, 1960. Dr. Manuel's diagnosis at the time was lumbo-sacral sprain and treatment in the hospital consisted of traction, muscle relaxants and pills for pain.

Plaintiff was against hospitalized by Dr. Manuel from March 9, through March 12, 1960, under the same diagnosis and the same treatment. Then Dr. Manuel referred the claimant to Dr. George P. Schneider, a highly qualified orthopedic specialist, who examined the plaintiff on March 28, 1960. Dr. Schneider found no muscle spasm or any other objective symptoms which he considered significant, but based on the history and the subjective symptoms, Dr. Schneider also diagnosed a lumbo-sacral sprain at L4 or L5 and, in view of the relief which plaintiff had obtained from traction during his two previous periods in the hospital, recommended that plaintiff be hospitalized for two weeks with the same treatment and that following this he wear a brace. On this occasion Dr. Schneider's prognosis was that the plaintiff should recover completely from his lumbo-sacral sprain within three or four months after the doctor's examination of March 28, 1960. In the course of his examination Dr. Schneider took x-rays, which revealed the presence of a 'sacralization of the right fifth lumbar transverse process with a pseudo arthrosis between the right fifth lumbar transverse process and the sacrum and ilium.', which condition is also called a 'false joint'. Dr. Schneider did not express an opinion that this congental defect in plaintiff's back was related to the accident or caused any of the pain or other symptoms of which plaintiff complained, but he did express the opinion that such a false joint might prolong recovery from a lumbo-sacral sprain.

Following Dr. Schneider's recommendations, Dr. Manuel again hospitalized the plaintiff from April 11 through April 15, 1960, and in his subsequent examinations Dr. Manuel continued to find what he diagnosed as muscle spasm. (It perhaps should be noted at this point that none of the other expert witnesses, all of whom were specialists in orthopedics, ever found any muscle spasm, and Dr. Schneider, in his testimony, stated that he found a 'slight left lateral lumbar scoliosis which gave rise to a little prominence of the right erector spinae muscle mass, which could be easily misconstrued as spasm * * *.') Therefore, Dr. Manuel sent the plaintiff back to Dr. Schneider who re-examined him on July 18, 1960 and found that plaintiff was definitely improved. Dr. Schneider again found no objective symptoms but changed his prognosis of recovery to three or four months from his examination of July 8, 1960.

Plaintiff was again seen by Dr. Schneider on September 26, 1960, and again it was Dr. Schneider's opinion that plaintiff had improved and he gave a prognosis of two or three months further disability although he stated that the plaintiff could recover spontaneously at any time within that period. Dr. Schneider did not see plaintiff again after September 26, 1960, but he did express the opinion that as of that date plaintiff was disabled from performing manual labor.

Dr. Manuel continued to find what he diagnosed as muscle spasm so in order to obtain another opinion from an orthopedic specialist he referred the claimant to Dr. William Louis Meuleman. Dr. Meuleman examined plaintiff on November 17, 1960, and on December 5, 1960, and diagnosed that plaintiff had suffered a lumbo-sacral sprain from which he had recovered and that he was able to return to heavy manual labor. From the x-rays, Dr. Meuleman also diagnosed the 'false joint' but, unlike Dr. Schneider, expressed the opinion that the lumbosacral sprain was an aggravation of this congenital weakness in the plaintiff's back. However, in view of Dr. Meuleman's final conclusion that the plaintiff had completely recovered as of the dates of his examinations on November 17 and December 5, 1960, this slight variance between the opinions of Dr. Schneider and Dr. Meuleman is not significant.

On receipt of Dr. Meuleman's report that plaintiff was able to return to work and in view of the conflicting opinion of Dr. Manuel that the plaintiff was not able to return to work, the defendant invoked the procedure set out in LSA-R.S. 23:1123 and requested the court to appoint an independent physician to examine the claimant. The court appointed Dr. James Gilly, a highly qualified orthopedic surgeon, who first examined the plaintiff on January 4, 1961. Dr. Gilly, like Dr. Meuleman, diagnosed that the plaintiff had suffered a lumbo-sacral sprain from which he had recovered and that plaintiff was able to return to heavy manual labor. Dur to the fact that plaintiff was intoxicated during his examination by Dr. Gilly on January 4, 1961, which condition might have affected any symptoms of injury on that occasion, Dr. Gilly re-examined the plaintiff on January 12, 1961, but his diagnosis was the same.

The lay testimony as to disability consisted of the plaintiff, who testified that he continued, through the date of trial, to have pain in his back and that although he had tried to work and to exercise he could not do so; plaintiff's wife to whom he was married four months before the date of the trial testified that plaintiff could not work, that he had tried to move a sofa and an icebox in their home, but couldn't and that he still had to take medication for pain; plaintiff's brother-in-law, Theo Jagneaux, with whom plaintiff lived until his marriage about for months before the trial, testified that plaintiff could not work and that on one occasion he tried to 'cut the grass' and the next day he couldn't move.

From the above summary of the expert medical testimony it can be seen that the opinions of the three orthopedic specialists, Dr. Schneider, Dr. Meuleman and Dr. Gilly, are substantially in agreement and complementary one to the other. It is true that on the date of his last examination on September 26, 1960, Dr. Schneider found plaintiff unable to return to heavy labor, but on that occasion Dr. Schneider predicted that the plaintiff would recover within two or three months or that he might recover spontaneously within that period. Plaintiff was subsequently examined by Dr. Meuleman on November 17 and December 5, 1960, and by the court appointed physician, Dr. Gilly, on January 4, and January 12, 1961, and these two orthopedic specialists found on all four of these examinations that the claimant had recovered and was able to return to his former type of work.

Of the expert medical witnesses, only Dr. Manuel, disagrees as to plaintiff's condition as of the date of the trial on January 13, 1961, he being of the opinion that the plaintiff continued to have muscle spasm and residual disability from the accident of February 20, 1960.

Applicable here is the well established jurisprudence that the opinion of a general physician is not accorded as much weight as that of an orthopedist as to matters which fall within the special field of orthopedics. Faircloth v. Speights, La.App., 106 So.2d 522; Scott v. Roy O. Martin Lumber Co., La.App., 116 So.2d 726; Varnell v. Roy O. Martin Lumber Co., La.App., 113 So.2d 83. Under this rule of evidence, as well as the fact that in the instant case, the opinions of Drs. Schneider, Meuleman and Gilly are substantially in agreement and only the opinion of Dr. Manuel is in conflict, it is clear that the great preponderance of the expert medical testimony is that plaintiff had recovered and was able to return to his former type of employment at least as of the date of Dr. Gilly's...

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12 cases
  • Venable v. Liberty Mut. Ins. Co.
    • United States
    • Court of Appeal of Louisiana — District of US
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    ...litigated, an award of $300 would be proper and in keeping with the jurisprudence. See Darby v. Johnson, supra, and Shuff v. Liberty Mutual Ins. Co., La.App., 134 So.2d 707. The final issue in this litigation is whether the trial judge was correct in dismissing with prejudice plaintiffs' su......
  • Redding v. Cade
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    ...to penalize payments that were incomplete for failure to include overtime wages in the calculation. Shuff v. Liberty Mut. Ins. Co., 134 So.2d 707 (La.App. 3d Cir.1961), writ denied (not reported, La.1962). In the instant case, Wausau was late in paying the portion of the benefit attributabl......
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