White v. E. A. Caldwell Contractors, Inc.

• Decision Date: 25 April 1973
• Docket Number: No. 4144,4144
• Citation: 276 So.2d 762
• Parties: Mack WHITE, Individually and for the Use and Benefit of the Minor, John Allen White, Plaintiff-Appellee, v. E. A. CALDWELL CONTRACTORS, INC., et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 762

276 So.2d 762

Mack WHITE, Individually and for the Use and Benefit of the Minor, John Allen White, Plaintiff-Appellee, v. E. A. CALDWELL CONTRACTORS, INC., et al., Defendants-Appellants.

No. 4144.

Court of Appeal of Louisiana, Third Circuit.

April 25, 1973.

James A. Bolen, Jr., Alexandria, for defendants-appellants.

Ford & Nugent by Howard N. Nugent, Jr., Alexandria, for plaintiff-appellee.

Before SAVOY, MILLER and DOMENGEAUX, JJ.

SAVOY, Judge.

This is a suit in workmen's compensation. Mack White, appearing individually and for the use and benefit of his minor son, John Allen White; said son being designated in these proceedings as 'plaintiff,' alleged that plaintiff, on the 25th day of November, 1969, sustained a cut on the medical aspect of his right lower leg and ankle; which ultimately resulted in severe infection of the right lower leg, necrosis of the tissue of the right lower leg; and severe scarring of the left tissue and supportive soft tissue structures of the right lower leg. Plaintiff also prayed for medical expenses and also for penalties and attorneys fees for the alleged arbitrary and unreasonable refusal of defendant to pay plaintiff compensation benefits. The defendant filed an answer in the form of a general denial, and also specifically denied that there was ever any notice or proof of loss by the plaintiff to the employer or insurer; and also that no accident had been sustained by plaintiff on November 25, 1969, which resulted in any disability. The matter was tried, and after being submitted to the trial court, the trial court rendered its memorandum decision as follows:

'The Court is of the opinion that the plaintiff has proven an accident in the course and scope of his employment, under the jurisprudence of this state. Dortch v. Louisiana Central Lumber Company, 30 So.2d 792, La.App. 2 Cir. (1947); Cutno v. Neeb Curney & Company, Inc., et al., 237 La. 828, 112 So.2d 628 (1959); Gloston v. Coal Operators, 85 So.2d 100 (La.App.1st Cir. 1955).

'The Court is of the opinion that plaintiff is permanently and totally disabled. The testimony of Dr. Prevost reveals this without doubt.

'The defendant was not unreasonable, arbitrary or capricious in refusing to pay this plaintiff compensation benefits.'

The defendants filed a Motion for a New Trial. The Court denied said Motion for a New Trial, with the following written reasons:

'The defendant has filed and earnestly argued a motion for a new trial contending that the plaintiff had not proven an accident and had not proven permanent disability. The Court denies the motion for a new trial.

'The plaintiff did not convincingly and beyond a reasonable doubt prove the occurrence of an accident. There are many cases wherein the proof of the accident is much more satisfactory than in this case. Nevertheless, the plaintiff has proven an accident by a preponderance of the evidence as established by the jurisprudence of the State of Louisiana.

'The Court is still convinced that the plaintiff is totally disabled from performing the same or similar work that he was performing prior to the accident. It is true that his condition may go into a state of remission but the history is that after short episodes of hard manual labor there is an exacerbation of the condition of his leg.'

From the judgment, defendants appealed suspensively to this Court. Plaintiff did not appeal nor answer the appeal, and consequently the question of penalties and attorney's fees is not before us.

The record reveals that the job site of the employer defendant, E. A. Caldwell, was near DeRidder, Louisiana, in connection with the construction of a paper mill for Boise Cascade Company. It was stipulated that plaintiff was receiving wages sufficient to entitle him to the maximum rate of compensation, which was $45.00 per week at that time. Plaintiff alleged that he was driving a water truck, and due to the fact that he had to have the water cut off at the proper moment, he hastily jumped up to catch a lever and push it up, he came back down and cut his right ankle. The plaintiff stated that one of the reasons he could mention the date clearly was because it was on the Tuesday before Thanksgiving, which for that year would have been on the 27th day of November.

Raymond Davis, a co-employee of plaintiff at the time of the accident, testified that, although he did not see the accident as he was not in the immediate vicinity, plaintiff told him he had 'skinned' his ankle and showed him the mark on his skin. This witness testified that he told plaintiff that if it (the injury) was bothering him he should tell Mr. Kennedy, their foreman. The foreman, Bill Kennedy, testified that he did not have any recollection of the plaintiff reporting to him that he had cut or injured his lower leg, although he admitted it was possible that it could have happened and he did not make a mental note of it. The plaintiff did testify that he had 'hollered' to Bill Kennedy and showed him his ankle and that was the extent of any report to his foreman. Kennedy testified that minor cuts and lacerations, etc. would ordinarily not be reported anyway.

Plaintiff's father, Mack White, testified that some time around the end of November his son told him he scraped his leg when he had slipped while trying to cut off a valve at the rear of a truck. There was some confusion in his testimony as to exactly when his son told him, but he thought 'it must have been around the last of November.' He did also state that the plaintiff would stay off his leg and it would seem like it was going to get well, but as soon as the boy would go back to work it would be just a short time until the leg would get inflamed again.

Insofar as treatment for this injury was concerned, it is quite evident that plaintiff considered this to be a minor injury and had no idea it would develop into what it did. He testified that the evening after the accident he got some gauze and salve and wrapped his ankle. He said he kept it wrapped and put mercurochrome on it after that. He stated that the cut place never did get completely well, and it just kept getting worse.

The first doctor plaintiff saw relative to his right leg was Dr. Bennett W. Sewell, a general practitioner. He saw plaintiff on one occasion, which was March 30, 1970. Dr. Sewell testified that plaintiff had an infection of the skin of his ankle and infectious dermatitis of the right lower leg above the ankle. This doctor prescribed an antibiotic, cortisporin, to clear up the infection. He did not see the plaintiff after that day.

The next doctor to see plaintiff relative to his injury was Dr. O. William Hilton, a general practitioner of Alexandria, Louisiana. Dr . Hilton testified that he saw plaintiff in the emergency room of Baptist Hospital in Alexandria on June 27, 1970. He testified that plaintiff had first been to Dr. Spruill's office, as Dr. Spruill was the family physician for plaintiff. Since Dr. Spruill was out of town plaintiff was sent to the hospital by Dr. Spruill's office nurse. He saw the plaintiff only for a brief time. The history the plaintiff gave to him at the time was recorded in his report as follows:

'. . . stated that for the previous six months he had sores on the right lower leg which would almost heal completely then apparently would become infected again.'

Dr. Hilton said that plaintiff had a cellulitis resulting from an infection of the right lower leg. Cellulitis was defined by the doctor as an 'inflammation of an area involving the skin and the tissue just beneath it.' Dr. Hilton was shown two photographs of the plaintiff and his leg which were taken on September 15, 1970, and introduced into the record as plaintiff's exhibits P--# 2 and P--#3. Dr. Hilton said the photographs revealed a condition much more pronounced than when he saw it, although the general area of the cellulitis at the time of his examination covered the approximate area that appears to be on the photographs. Dr. Hilton prescribed antibiotics for the plaintiff and told him to remain on limited activity and to use hot soaks to the lower extremity. He told plaintiff to see Dr. Spruill, his family doctor, on Monday, June 29th.

Dr. Hilton did state that it would be painful for the plaintiff to work on his leg in the condition that he saw at the time of his examination on June 27, 1970, and further stated that activity would perhaps precipitate further infection also. Dr. Hilton said that limited activity would be important. This doctor was rather reluctant to venture any definite opinions as to length of disability, causation, etc., as he saw the plaintiff on only one occasion, and stated that he would defer to Dr. Spruill.

Plaintiff reported to Dr. Fern Rayford Spruill, a general practitioner, on June 29, 1970, as directed by Dr. Hilton. Dr. Spruill said that at that time the plaintiff gave him the history of an injury 'some times in 1969 in November.' He testified that the plaintiff had a swelling and a contusion with bluish discoloration of the lower right leg. Plaintiff complained of pain in the lower right leg, and it was visibly swollen. Dr. Spruill said that his findings of an infection of the leg would be consistent with a history of plaintiff having sustained a cut or tearing type wound on November 25, 1969. This doctor stated that the infectious condition he saw on June 29, 1970 had evolved into a thrombophlebitis, with the injury of November, 1969 as a precipitating event. Dr. Spruill recommended rest, antibiotics, and elevation of the leg with warm packs. He said the leg responded well, but plaintiff kept working. The doctor thought that if plaintiff had stayed off of this leg longer it would have healed faster. This doctor examined the plaintiff in the court room on the day of trial (March 15, 1971) and said the leg was not healed, and further that it was susceptible to re-injury and could be predisposed toward infection. When asked if he would...