Stroud v. Tremont Lumber Co., 10630

• Decision Date: 27 September 1966
• Docket Number: No. 10630,10630
• Citation: 193 So.2d 86
• Parties: Luther H. STROUD, Plaintiff-Appellee, v. TREMONT LUMBER COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 86

193 So.2d 86

Luther H. STROUD, Plaintiff-Appellee, v. TREMONT LUMBER COMPANY, Defendant-Appellant.

No. 10630.

Court of Appeal of Louisiana, Second Circuit.

Sept. 27, 1966.

On Rehearing Jan. 4, 1967.

Writ Refused Feb. 23, 1967.

Theus, Grisham, Davis, Leigh & Brown, Monroe, for appellant.

Caldwell & Stewart, Jonesboro, for appellee.

Before GLADNEY, AYRES and BOLIN, JJ.

AYRES, Judge.

This is an action for workmen's compensation. Plaintiff was awarded compensation at the maximum statutory rate for total and permanent disability subject to payments made covering a period of time from July 7, 1964, to March 9, 1965. From a judgment thus rendered and signed, defendant appealed. Plaintiff has answered the appeal and prayed for the allowance of statutory penalties and attorney's fees.

The issues, factual in character, relate to the question of the extent and duration of plaintiff's disability, particularly to its continuation after March 9, 1965, and to the question as to whether defendant's failure to pay compensation thereafter was arbitrary, capricious, or without probable cause.

Plaintiff was engaged by Richard Gibson, a contractor of the defendant, to haul logs. While so employed and while driving a loaded truck out of the woods, the truck overturned, coming to rest upon its right side. As the truck overturned plaintiff fell across the cab, striking his head, back, and shoulders against the door or other metal parts of the truck. Severe and painful injuries were sustained. Plaintiff, unable to walk, was assisted from the wrecked truck to another vehicle and carried to Dr. William S. Marshall, Jr., a local physician in Chatham, Louisiana. Plaintiff was given sedation by hypodermic injection and instruction was given that he be immediately carried to the St. Francis Hospital in Monroe.

Plaintiff was hospitalized in Monroe under the care and treatment of Dr. Faheam Cannon, an orthopedic surgeon, for a period of 16 days. Plaintiff's condition was diagnosed as an acute musculoligamentous strain of the paralumbar muscles on both sides of the lumbar vertebrae, the location of plaintiff's primary complaints. Plaintiff was administered the usual conservative treatments--muscle relaxants, pain medication, and heat massage to the lumbar area of his back, as well as bed rest. He was in traction for a period of eight days. Before his release from the hospital plaintiff was fitted with a lumbosacral corset which he continued to wear for several weeks thereafter.

After his discharge from the hospital, plaintiff continued as an outpatient of Dr. Cannon until November 24, 1964. During the period the doctor saw plaintiff in his office on seven occasions. On the first of these, August 3, 1964, it was noted in the doctor's report that plaintiff continued to complain of pain and discomfort in his back. By examination it was disclosed that his back motion was restricted both forward and backward, and that palpation produced pain over the lower lumbar area. The doctor also related, in his deposition, that on this occasion plaintiff was 'having less swelling in his legs and feet,' a condition which had not previously been noted in the doctor's reports.

On August 18, 1964, it was noted in the doctor's report that plaintiff continued to complain of pain in his low back and that, on this occasion, he complained of spasm and pain in the muscles of his neck and right leg. Back motion was noted only as moderately restricted. A notation was contained in the doctor's report of September 1, 1964, that plaintiff demonstrated approximately 75% Of the usual range of back motion in all directions, but with a reversal of the lumbar curve on forward bending. Noted, also, were plaintiff's continued complaints of pain in the lower lumbar area. Back motion on September 15, 1964, was noted as limited to about the same extent as on the previous occasion, attended, however, with some discomfort.

Plaintiff reported to Dr. Cannon October 27, 1964, a continuation of headaches with which he had suffered since his hospitalization, and inability to work skidding logs because of soreness in the back and left side of his head, extending to and involving his left eye. Examination on that occasion disclosed that palpation produced pain along the inferior nuchal line on the left side, overlying the occiput. Five cc. of .5% Xylocaine were injected into the area of maximum tenderness which afforded immediate but temporary relief until that night. Plaintiff reported to the doctor, as the latter noted in his report of November 4, 1964, that his suffering had not been as severe or prolonged as previously. Again palpation was found to produce pain over the left occiput in the area of the nuchal line.

Dr. Cannon's notes revealed that on the last of these visits, November 24, 1964, plaintiff complained of continued pain in the upper part of his neck and over the top of his head, followed by a feeling of weakness. The doctor was impressed, however, that plaintiff was able to return to work. He advised that if plaintiff found himself unable to work his condition should be evaluated by a neurosurgeon, and, for that purpose, Dr. Philip Bonn was recommended .

Plaintiff's complaints having persisted, Dr. Bonn made an examination of plaintiff December 23, 1964, and upon that examination testified:

'There was minimal cervical paraspinal muscle spasm, which means spasm in the back part of his neck on both sides of his spine, with cervical movements, or movement of the neck, precipitating upper neck pain, or cervical pain. There was tenderness to the suboccipital areas over the greater occipital nerves, and, again, this is the juncture of the head and neck. There was nonanatomical numbness to the left hand and numbness to the lower one-third of the right lower leg and foot. In other words, it did not fit any nerveroot pattern. The deep tendon reflexes were active and equal bilaterally and there were no pathological reflexes. Deep tendon reflexes is tapping the tendon to see if this is a normal response or hyperactive or diminished and these were normal. Pathological reflexes is a short circuit reflex which he did not have. There was weakness to dorsiflexion of both feet, meaning pulling the feet up towards the head.'

The muscle spasm was said by Dr. Bonn to restrict the cervical movements. Tenderness was found over the greater occipital nerve at the juncture between the head and neck.

Plaintiff's complaints of severe headaches were, in the doctor's opinion, consistent with and caused by a bilateral myoligamentous sprain and by the muscle spasm noted by the doctor in plaintiff's cervicalspinal area. Dr. Bonn stated that all of plaintiff's complaints of pain, including the headaches, could be related directly to the trauma sustained in the accident, due to a bruising of the nerves themselves or an encroachment of the muscles thereon as a result of muscle spasm. In correspondence incorporated in the record a series of questions was asked Dr. Bonn, from which we quote:

Q. In your opinion, what is the cause of the severe headaches being suffered by Mr. Stroud?

A. Occipital neuralgia; the accident caused a cervical myoligamentous sprain and occipital neuralgia and the neuralgia is due to his trauma.

Q. If the headaches are being caused by something being wrong with the occipital nerve or nerves, in your opinion, what appears to be wrong with the nerves and what is the cause of the same?

A. The accident caused a cervical myoligamentous sprain and occipital neuralgia and the neuralgia is due to his trauma.

Q. In your opinion, can the pain, etc., which Mr. Stroud suffers from be related to the accident which he described to you?

A. The pain he suffers from can be related to his accident.

Q. Assuming that Mr. Stroud is still suffering from these severe headaches which he described to you, what do you recommend be done to relieve them?

A. As I previously stated, if he does not respond to blocks to the occipital nerves, patient should have an occipital neurectomy, or cutting the occipital nerves in the junctions of the head and cervical area.

Thus, it is noted that in some important particulars, with reference to plaintiff's injuries and endurance of pain, Drs. Cannon and Bonn are in accord, notably as to tenderness and spasm in the area of the occipital nerves, as well as the cause and effects thereof which, however, are shown in more detail by the testimony of Dr. Bonn, reference to which has already been made.

The findings of Dr. Frederick C. Boykin, a neurosurgeon who examined plaintiff at defendant's request on June 16, 1965, are, at least in part, in accord with the findings of Drs. Bonn and Cannon. In his report, Dr. Boykin said, with reference to the cervical spine, there was perhaps 25% Limitation of motion and tenderness to palpation along the nuchal line and over the spinous processes. Flexion of the lumbar spine was found to be only 80% Of normal and its demonstration was accompanied by complaints of pain across the lower lumbar area. Hyperextension was said to produce mild pain in the same area. The doctor, however, discounted the disabling effects which had been attributed to these findings.

Predicated upon the contention that plaintiff's claim for compensation is primarily based upon injuries allegedly sustained to his cervical spine, much is attempted to be made of Dr. Cannon's testimony that plaintiff never complained of injuries in that area until after his release from the hospital. We are not impressed with this contention. First, Dr. Cannon's testimony in this regard is emphatically denied by plaintiff, who testified that during the interval of his hospitalization the traction equipment was temporarily loosened to permit a visit to a bathroom, whereupon he experienced pain and discomfort in his cervical spine. This manifestation was, according to plaintiff's testimony, reported to the doctor upon the doctor's next visit. As a basis for his...