Stevenson v. Bolton Co., Inc.

• Decision Date: 26 December 1985
• Docket Number: No. CA,CA
• Citation: 484 So.2d 678
• Parties: Linda Miles STEVENSON v. The BOLTON COMPANY, INC. and Fireman's Fund Insurance Company. 84 0414.
• Court: Court of Appeal of Louisiana — District of US

Page 678

484 So.2d 678

Linda Miles STEVENSON v. The BOLTON COMPANY, INC. and Fireman's Fund Insurance Company.

No. CA 84 0414.

Court of Appeal of Louisiana,

First Circuit.

Dec. 26, 1985.

Decree Amended On Rehearing March 31, 1986.

Paul Due' and Benjamin Guelfo, Charles Wm. Roberts, Baton Rouge, for plaintiff-appellant Linda Miles Stevenson.

Carolyn Perry and Carey T. Jones, Baton Rouge, for defendants-appellees The Bolton Co., Inc., et al.

Before COLE, CARTER, LANIER, CRAIN and JOHN S. COVINGTON, JJ.

JOHN S. COVINGTON, Judge.

The primary issue presented in this appeal is whether there was a causal connection between plaintiff's work accident and her subsequent disability. The primary issue presented in the answer to this appeal is whether the insurer's failure to commence compensation payments timely was justified.

Plaintiff, Linda Miles Stevenson, was injured on October 30, 1980 while acting in the course of her employment with The Bolton Company as a plasterer's apprentice on a renovation project at LSU. On that date plaintiff stepped into a hole on the second floor of the building being renovated and fell in a straddled position, with one leg in and one leg outside the hole. As a result of this accident, plaintiff sustained an injury to her lower back and hip.

Plaintiff immediately reported the accident to her employer, but declined an offer to see a physician on that date, stating she preferred to see a physician only if it became absolutely necessary. Plaintiff did not work the day after the accident, but returned to work the following Monday, Tuesday and Wednesday. On November 6, 1980, she decided to see the company doctor because her pain had become unbearable. She thereafter was referred to several doctors and underwent various tests, treatments and therapy for her injury.

Plaintiff had been released to return to work by two physicians by the end of June 1981. However, she felt she was still unable to work because of the severity of the pain she continued to experience. At that time she was under the care of Dr. Kenneth Adatto, an orthopedic surgeon, whom she had first consulted on May 18, 1981. Even after being released by her other physicians, plaintiff continued treatment with Dr. Adatto which culminated in surgery on her lower back on September 18, 1981. In the course of this surgery Dr. Adatto discovered and corrected a foraminal decompression, which he concluded was the source of plaintiff's problems. Although plaintiff improved substantially after her surgery, the operation left her with a permanent 10% disability.

On the basis of her work injury, plaintiff received worker's compensation benefits from the date she stopped working until sometime in June of 1981. Upon the termination of her benefits plaintiff filed suit for worker's compensation, medical expenses, penalties and attorney fees against her former employer, the Bolton Company, Inc., and its insurer, Fireman's Fund Insurance Company. Trial of this matter commenced on October 18, 1982 and continued for three days. The trial was then recessed until November 19, 1982 at which time counsel made their arguments before the court, after which this matter was taken under advisement. On September 5, 1983 the court rendered judgment dismissing plaintiff's claim for additional worker's compensation benefits. The court also denied plaintiff's claim for the cost of medical services, hospitalization and surgery prescribed by Dr. Adatto. However, the court granted plaintiff's claim for penalties and attorney fees. Plaintiff perfected an appeal from this judgment. Defendants thereafter filed an answer to plaintiff's appeal seeking reversal of the award for statutory penalties and attorney fees, claiming it was unwarranted and excessive.

In order to recover worker's compensation benefits, the plaintiff must prove the following chain of causation; his employment caused an accident, the accident caused his injury and the injury caused his disability. La.R.S. 23:1031; Shatoska v. Intern. Grain Transfer, Inc., 430 So.2d 1255 (La.App. 1st Cir.1983). Although it is necessary for the plaintiff to prove his disability and its causal relation with his employment accident, it is not necessary he prove the exact cause of his disability. Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320 (La.1985). In the absence of proof showing an intervening cause, an employee's disability is presumed to result from the accident, if he was in good health before the accident, but after the accident disabling symptoms appear and continuously manifest themselves, provided the medical evidence shows a reasonable possibility of a causal connection between the accident and the disability. Walton, supra; Robertson v. Scanio Produce, 449 So.2d 459 (La.1984). Once the plaintiff establishes the basic facts giving rise to this presumption, a heavy burden of proof is shifted to the defendant to prove by a preponderance of the evidence the absence of any correlation between the work injury and the employee's disability. Walton, supra; Hammond v. Fidelity & Cas. Co. of New York, 419 So.2d 829 (La.1982). In Walton, supra, the Louisiana Supreme Court stated:

"Once the disabled employee establishes the presumption of a causal relationship, the party denying the existence of the presumed fact assumes both the burden of producing evidence and the burden of persuasion on the issue. * * * *

The effect of the presumption is not so slight and evanescent that it is spent and disappears upon the mere production of evidence by the adversary. It is a true presumption which has been created for policy reasons that are similar to and just as strong as those that underlie the compensation principle itself: the probability of the causal connection under the circumstances which give rise to the presumption, the difficulty of proving causation with testimony by medical experts often sharply divided by differing schools of opinion, and the desirability of reducing the margin of error inherent in litigation as to a disabled employee, both because he has at stake an interest of transcending value--his and his family's livelihood--and because those persons who enjoy the product of a business should ultimately bear the cost of injuries or deaths that are incident to the manufacture, preparation and distribution of the product." (Citations omitted.) (Emphasis added.)

A plaintiff in a worker's compensation case is entitled to this presumption of causation even where he was not entirely symptom free before the accident. Walton, supra. Because an employer takes his employee as he is, recovery is not precluded if the accident activated or precipitated disabling manifestations of the pre-existing condition. Id.

In the present case, it is undisputed plaintiff suffered a work related accident. In addition, defendants do not seriously contest the claim plaintiff now suffers from at least a 10% permanent disability. The decisive issue herein is whether there was a causal connection between plaintiff's work accident at LSU and her subsequent disability.

Plaintiff argues she is entitled to the aforementioned presumption of a causal connection between her work accident and her subsequent disability. In opposition to this claim, defendants made two basic arguments. First, they argue this presumption is not applicable because plaintiff was not in "good health" prior to the LSU accident, having had an extensive history of back problems and injuries similar in nature to the injury of which she now complains. Second, defendants maintain any disability suffered by plaintiff as the result of the LSU accident was temporary and had ended by June 23, 1981. They argue plaintiff's permanent disability was completely unrelated to her work accident, being the direct result of the unnecessary back surgery performed in September of 1981, after she had already recovered from any disability caused by her work accident at LSU.

One of the primary reasons for the trial court's judgment was its negative assessment of plaintiff's credibility. The court refused to accept plaintiff's testimony that she began experiencing disabling back pain shortly after the LSU accident, which continued until her back surgery.

It is well established a plaintiff in a worker's compensation case will be deemed a malingerer only upon clear and convincing evidence. Long v. Moses Motor Hotel, Inc., 460 So.2d 1156 (La.App. 2d Cir.1984); Caston v. Combined Insurance Company of America, 308 So.2d 287 (La.App. 1st Cir.1975). (The physicians who testified at trial indicated they had no reason to doubt the genuiness of plaintiff's complaints of pain.) In fact the record is devoid of any evidence which would support the conclusion plaintiff was a malingerer.

Further, our examination of the record also fails to support the reasons given by the trial court for its adverse credibility determination. For instance, in its written reasons the trial court stated one of plaintiff's co-workers testified plaintiff had complained of back pains from October 22, 1980, the date she returned to work following an automobile accident, through October 30, 1980, the date of the LSU accident. However, our review of the pertinent testimony reveals plaintiff's co-worker never testified plaintiff complained of back pains, but only that she complained of pain in her leg and knee.

We find the trial court also misconstrued the record when it stated plaintiff's testimony contained an admission she had lied while giving a pre-trial statement to an adjuster regarding prior injuries. The particular testimony in which plaintiff used the work "lied" must be taken in context. The colloquy in which this term occurred was a discussion of the fact plaintiff had given inaccurate information to an adjuster as to which of her legs had been injured in a previous accident. Plaintiff candidly admitted her error, stating:

"... I probably did say that. It was on that tape, so,...