Tucker v. Associated Grocers, Inc.

• Decision Date: 25 June 1985
• Docket Number: No. CA,CA
• Citation: 473 So.2d 328
• Parties: Walter James TUCKER v. ASSOCIATED GROCERS, INC., et al. 84 0701.
• Court: Court of Appeal of Louisiana — District of US

Page 328

473 So.2d 328

Walter James TUCKER v. ASSOCIATED GROCERS, INC., et al.

No. CA 84 0701.

Court of Appeal of Louisiana First Circuit.

June 25, 1985.

Rehearing Denied Aug. 20, 1985.

Alex W. Wall, Sr., Baton Rouge, for plaintiff-appellant Walter James tucker.

Robert D. Hoover, Baton Rouge, for defendant-appellee Associated Grocers, Inc. and Hartford Acc. and Indem. Co.

Before COLE, CARTER and LANIER, JJ.

COLE, Judge.

This is a worker's compensation suit. The plaintiff, Walter James Tucker, instituted proceedings by petition filed April 20 1982. Tucker's employer, Associated Grocers, Inc., and Hartford Accident and Indemnity Company, Associated's worker's compensation insurer, were named defendants. The petition alleged Tucker suffered the onset of disabling back pain while engaged in the delivery and unloading of Associated's products. Further allegations stated the defendants acted arbitrarily and capriciously in failing to pay compensation after timely notice of this incident. An award for $183 per week during the period of Tucker's disability, medical and hospital expenses and reasonable attorney's fees and penalties were sought. The defendants answered and on September 28, 1983, trial was conducted. After taking the matter under advisement, the trial court rendered judgment in favor of defendants dismissing the claim at plaintiff's costs. The trial court found the plaintiff failed to prove his case by a preponderance of the evidence. From this judgment plaintiff appeals.

FACTS

In 1975, Tucker underwent a laminectomy for a ruptured lumbar disc. The rupture occurred while Tucker was engaged in picking up a heavy trash can, part of his duties as a grounds supervisor at Louisiana State University. After employment as a security guard, Tucker commenced working for Associated as a warehouseman on February 23, 1978. His employment application failed to mention his previous disc surgery. Several months later Tucker was assigned as truck driver. Because the duties of a truck driver required heavy lifting during the delivery of merchandise, a physical examination was performed upon Tucker. At the request of Associated, the examination was conducted by Dr. Lloyd Perez, who incidentally had served in the past as Tucker's family physician. It revealed to Associated Tucker had undergone prior disc surgery.

On February 1, 1979, Tucker, while at work loading a truck, slipped on some ice and suffered what Dr. F.A. DeJean described as a lumbar strain. Muscle relaxants were prescribed. No compensation was provided as Tucker missed only a few days work. Subsequently, on December 27, 1979, Tucker visited Dr. DeJean due to a back injury he suffered unloading meat and frozen foods from an Associated truck. Dr. DeJean's opinion at this time was Tucker probably had a recurrent disc problem. Again the pain resolved in a matter of days and no compensation was awarded as Tucker returned to work.

On January 25, 1982, Tucker, at his second delivery of the day, was unloading merchandise for about ten minutes when, according to his testimony, he suddenly experienced a sharp pain in his lower back. As he continued to unload the pain increased. About twenty minutes into the delivery the pain prevented him from continuing. Lindy Munson and Joe Cannon, employees of Villa Oaks, the second delivery, corroborate that twenty minutes into the unloading Tucker had to stop because of severe pain. Cannon and Munson stated, however, Tucker arrived at Villa Oaks in pain and had trouble even exiting the cab of his truck. Upon returning to Associated's warehouse Tucker reported to Mr. Sam Politz, general manager for Associated. Tucker indicated he was suffering severe back pain and was going to see a doctor. Politz testified he was told by Tucker the pain was a result of a prior back operation.

On January 25, 1982, Tucker went to see Dr. Thomas Plantz, a chiropractor. Tucker's chief complaint was lower back pain, radiating into the left hip and leg, with pronounced numbness in his left foot. X-rays revealed subluxations in the L-3, L-4 and L-5 area, with a severe disc narrowing space in the L-5, S-1 space caused by degenerative disc disease. ¹ Dr. Plantz treated Tucker for five consecutive days. Still in pain, Tucker visited a Dr. Diggs. Dr. Diggs provided Tucker with pain killers.

At this time Tucker attempted to return to work. After two days the presence of pain prevented him from working. On February 18, 1982, Tucker was examined by Dr. DeJean, Perez's associate, and on February 19 and 24, 1982 by Perez. Pain killers and muscle relaxants were prescribed and Dr. Perez referred Tucker to Dr. Fisher who had performed his laminectomy in 1975. However, Dr. Fisher refused to examine Tucker because worker's compensation would not pay his bill and Tucker could not afford a $75 fee.

On February 22, 1982, still in pain, Tucker sought further medical care at the Veteran's Administration outpatient clinic. At the clinic he was attended by Dr. Thomas Grayson, a general practitioner with forty years experience. Dr. Grayson upon examination diagnosed Tucker as suffering a conduction defect to his sciatic nerve due to a protruded or herniated lumbar disc. A general confirmation of this diagnosis was obtained from an orthopedist rendering a consultation. On or about November 4, 1982, after numerous visits and physical therapy, the pain resolved. However, Dr. Grayson prohibited Tucker from ever performing heavy lifting again due to his susceptibility to future prolapse caused by his degenerative disc condition and the effect heavy lifting would have upon such a condition.

On November 10, 1982, Tucker returned to work for Associated at light duty. He was paid as a warehouseman, ten to fifteen cents an hour less than the pay of a truck driver. His light duties included sweeping, picking up paper and loading milk cartons. Tucker continued at this job until June 7, 1983 when he went on strike with the United Food Workers, Local 210, AFL-CIO and has not since returned.

ACCIDENT

If an employee receives personal injury by accident arising out of and in the course of his employment, his employer is liable for compensation benefits and medical payments. La.R.S. 23:1031. The employee must establish the occurrence of an accident by a preponderance of the evidence. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). An accident occurs in the course of employment when it happens during the time of employment and at a place contemplated by the employment. An accident arises out of the employment when it results from some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. When the performance of the usual and customary duties of a workman causes or contributes to a physical breakdown, the statutory requirements for an "accidental" injury are present. Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982). A worker's pre-existing condition does not bar his recovery under the Louisiana Workmen's Compensation statute. An employer takes the worker as he finds him. An abnormally susceptible worker is entitled to no less protection under the compensation statute than a healthy worker. It is immaterial that the diseased or weakened condition eventually might have produced disability outside the employment situation. Guillory v. United States Fidelity & Guaranty Insurance Company, 420 So.2d 119 (La.1982).

The trial court found Tucker failed to prove his case by a preponderance of the evidence. The court arrived at this conclusion even though Tucker testified the accident occurred at work. ²

"It is true that 'The reviewing court must give great weight to the factual conclusions arrived at by the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable.' Cadiere v. West Gibson Products Company, 364 So.2d 998, 999 (La.1978) (Italics ours). However, the appellate court is not required by this principle to affirm the trier of fact's refusal to accept as credible uncontradicted testimony (Johnson, cited below), or greatly preponderant objectively-corroborated testimony (Arceneaux, cited below) where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973)." West v. Bayou Vista Manor, Inc., supra, at 1150.

The trial court did not give any reasons why it cast judgment against Tucker, nor any specific reasons why Tucker's testimony was rejected. Even those instances when the trial court notes certain reasons which give it concern as to the reliability of testimony given by a party are subject to review for sufficiency of the noted reasons. West v. Bayou Vista Manor, Inc., supra, at 1149.

The testimony of Tucker reveals he suffered a sharp pain in his low back while unloading frozen foods. Thereafter, the pain increased until he could no longer continue unloading. This testimony was corroborated by two employees of the store receiving the frozen foods. The employees testified they continued to unload when Tucker became physically unable. These facts constitute an "accident" as contemplated by the Louisiana Worker's Compensation law. See Robichaux v. Terrebonne Parish Sch. Bd., 426 So.2d 241 (La.App. 1st Cir.1983). Further, Dr. Grayson indicated the heavy lifting required by Tucker's job aggravated a pre-existing degenerative disc condition in Tucker's lumbar spine. Additionally, the series of incidents suffered by Tucker resulting in minor injuries indicate the risks of injury attributable to his employment activity. Thus, the performance by Tucker of the usual and customary duties of his job have...