W. Horace Williams Company v. Serpas

• Decision Date: 11 February 1959
• Docket Number: No. 17322.,17322.
• Citation: 261 F.2d 857
• Parties: W. HORACE WILLIAMS COMPANY, Inc., and EMPLOYERS' GROUP INSURANCE COMPANIES, Appellants, v. Andrew J. SERPAS, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

261 F.2d 857 (1959)

W. HORACE WILLIAMS COMPANY, Inc., and EMPLOYERS' GROUP INSURANCE COMPANIES, Appellants, v. Andrew J. SERPAS, Appellee.

No. 17322.

United States Court of Appeals Fifth Circuit.

January 5, 1959.

Rehearing Denied February 11, 1959.

Marian Mayer, Frank J. Peragine, of Deutsch, Kerrigan & Stiles, New Orleans, La., for appellants.

Joseph J. Laura, Jr., of Laura, Danna & Simmons, New Orleans, La., for appellee.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment by the trial court, sitting without a jury, awarding appellee compensation for total and permanent disability under the Louisiana Workmen's Compensation Law, LSA-R.S. 23:1021 et seq. The occurrence of the accident is admitted. Only the degree of permanence and disability are in issue.

Appellee was a carpenter by trade. He had been engaged generally in heavy carpentry work, being able to perform satisfactorily on industrial work involving the handling of heavy materials and frequent climbing and lifting. He suffered a back sprain in 1951, but lost no time from work. In January, 1956, he suffered an injury when fellow employees left him suddenly with too heavy a lift. He reported to the company physician who taped his back and sent him to an orthopedic specialist and X-rays were taken. It was discovered that he had congenital spondylolisthesis, a condition in which one vertebra has slipped over another so that there is no direct column of bony structure to support the back wall. His injury was diagnosed as a mild lumbosacral strain. Appellant concedes that this strain may be considered as aggravation of appellee's predisposition to attacks of lumbosacral strain. Appellant states: "The question is simply the duration of the aggravation."

Appellee testified that he had had pain continuously from the time of the accident down to date of trial; such pain resulted from efforts by him to bend, or twist, or lift, or climb or place too great weight on his left leg; he got relief from wearing a sacro-iliac brace prescribed by his doctor, which he wore every day at his work; he had been restricted in his work in that he could no longer do heavy carpentry and was thus not able to join the Union pool, but had to take lighter carpentry work which paid a lower hourly wage; his present wage rate was $2.00 an hour as against the former pay scale of $2.70 received by him.

Appellee returned to work approximately two weeks after the injury but he continued to get treatments until August, 1956, although the physician, the orthopedic surgeon and a neurosurgeon all reported that the lumbosacral strain had cleared up in March, at which time compensation payments were terminated. On June 12, 1957, appellee entered Charity Hospital for other trouble and his back was examined. The clinical report then was negative. On September 25, 1957, the trial court chose a medical expert who reported no objective evidence of strain or disability, but who recommended that an orthopedist be consulted. This was done and on December 5, 1957, Dr. Orofino made his examination, resulting in the report that became the basis of the trial court's finding in favor of Serpas.

Numerous lay witnesses, including Mrs. Serpas, testified to the employee's apparent pain and disability, as indicated by limitations on his ability to work (1) on the job, (2) around the yard, and (3) in the house.

To counteract this testimony appellant introduced moving pictures taken on two widely spaced occasions, January and August, 1957. These pictures, also viewed by this Court, showed appellee engaged in physical labor as a carpenter in which he moved about, bent over, lifted boards and climbed into what appeared as an attic, and worked in a crouching position with apparent agility.

Undoubtedly the evidence given in open court by two of the physicians, one an impartial medical witness chosen by the court, and the medical reports of two others, admitted by stipulation, would have warranted a finding by the trial court that the injury of January, 1956, was completely cured by August, 1956. Such a finding would also be supported by the pictures showing the physical activity of the appellee. However, the report of Dr. Orofino, also an impartial court appointed witness, concluded that whereas Serpas' congenital spondylolisthesis had previously been "asymptomatic," as a result of this injury "the congenital defect in Mr. Serpas' low back has become symptomatic." He then recommended: "I feel that Mr. Serpas will, in all probability, benefit by a fusion of the 4th lumbar vertebra to the 1st sacral vertebra. This feeling is reinforced by the fact that Mr. Serpas obtains relief from the minimal amount of immobilization achieved by a sacro-iliac belt."

Appellant here contends that Dr. Orofino's opinion was based on subjective rather than objective tests, since he testified that he concluded the injury caused his present difficulty "from the patient's history."¹

On cross examination Dr. Orofino testified that the patient's history was the main consideration in arriving at his conclusion. Appellant thus takes the position that the opinion is without evidentiary value because "based on appellee's self-serving and inaccurate history."

We are unable to determine exactly what history was given to Dr. Orofino to form the basis of his opinion other than as stated in his report, admitted in evidence, and as stated by him under cross examination. In his report he stated: "His history of illness and treatment, as the result of his injury in February, 1956, has been reviewed and is essentially as reported to you in Dr. Kirgis' letter of July 27, 1956." (Dr. Kirgis' letter is not in evidence, although there is a stipulation to the effect that Dr. Kirgis reported on July 27, 1956, that Serpas was suffering from a muscle spasm.) He then stated:

"The patient stated that he had a back injury in 1951, which was treated by taping, and subsided in approximately six days. Following this injury he was not absent from work.

"The patient\'s complaint at this time is of pain in the lower back and down the left leg. However, the patient does state and emphasizes several times during course of the examination that he receives relief from the use of sacro-iliac belt. He has been performing light work for the past several months."

As to the facts making up the past history of the employee, both as shown by the above statement and as brought out on cross examination, it is plain that there is affirmative evidence both from the testimony of the employee himself and to some extent by the testimony of others who had observed him. Since, therefore, the trial court could find in favor of the truth of appellee's...