Williams v. Liberty Mut. Ins. Co.

• Decision Date: 04 February 1976
• Docket Number: No. 5295,5295
• Citation: 327 So.2d 462
• Parties: Simpson WILLIAMS, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 462

327 So.2d 462

Simpson WILLIAMS, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.

No. 5295.

Court of Appeal of Louisiana, Third Circuit.

Feb. 4, 1976.

G. F. Thomas, Jr., Natchitoches, for plaintiff-appellant.

Bolen, Halcomb & Bolton by Gregory Erwin, Alexandria, for defendant-appellee.

Before CULPEPPER, DOMENGEAUX and PAVY, JJ.

DOMENGEAUX, Judge.

This is a workmen's compensation suit. Plaintiff-appellant, Simpson Williams, initiated this action seeking an award for total and permanent disability and statutory penalties and attorney's fees from a work-related injury while in the employ of the defendant, Tidewater Construction Company. The trial court found plaintiff to be totally and permanently disabled but denied his claim for penalties and attorney's fees against his employer's workmen's compensation insurer, Liberty Mutual Insurance Company. Defendants filed a motion for a new trial which was denied. Plaintiff has appealed from that portion of the judgment denying penalties and attorney's fees. Defendants have answered the appeal seeking a reversal of the judgment declaring plaintiff to be totally and permanently disabled and further desire a reversal of the trial judge's denial of their motion for a new trial.

In 1969 plaintiff received a back injury in connection with a work-related accident while in the employ of Sherwood Homes Company. He was treated initially by Dr. Charles Cook of Natchitoches, Louisiana, who examined him on January 16, 1969, and thereafter by Dr. W. W. Fox, an orthopedist in Shreveport, who treated plaintiff on February 1, 1969. Doctor Fox performed an examination and a myelogram and found a slight narrowing of the spinal interspace at the L--5 disc. Doctor Fox determined this to be a degenerative condition, prescribed bed rest, a back brace, and a corset for plaintiff. After an examination on August 5, 1969, this specialist felt that Mr. Williams was probably disabled at that point but did not examine him further. As a result of that accident and injury plaintiff received a lump sum settlement of $3,500.00.

After returning to work Mr. Williams received a second back injury on January 6, 1970, for which he was examined on January 27, 1970, by Dr. Jackie Huckaby, a general practitioner in Natchitoches, Louisiana. Doctor Huckaby suspected a possible ruptured disc and placed the plaintiff in a back brace and prescribed muscle relaxants . Mr. Williams testified that as a result of this injury he was unable to work for a period of nine months to one year.

The above referred to accidents in 1969 and 1970 predated the two accidents hereinafter described, which form the basis of this suit.

Plaintiff was subsequently employed by the defendant herein, Tidewater Construction Company, as a vibrator air tool operator. On October 29, 1973, he was operating a rotary drill which went out of control and struck him in the right hip. At that time he was examined again by Dr. Jackie Huckaby who diagnosed the plaintiff's injury as a left illiac crest bruise. About three week after the accident plaintiff bagan to complain of pain in his lower back and legs and occasionally lost the use of his left leg. He was forced to take about five days off work even though he had been placed on lighter duty since this accident.

After that injury plaintiff was also examined by Doctor Huckaby's associate, Dr. Fred Willis, who found acute muscle spasms bilaterally in plaintiff's back and lumbosacral area and diagnosed the injury as acute myoligamentous lumbosacral strain.

After returning to work with Tidewater plaintiff was again injured on March 6, 1974, on the job, when an object onto which he was holding broke, causing him to fall into a storage tank, again injuring his back. Plaintiff was taken immediately to Doctor Willis' office, who diagnosed the injury as one similar to the previous one, i.e. acute myoligamentous lumbrosacral strain. Plaintiff attempted to return to work but experienced further difficulty on March 9, 1974, and after being seen by Doctor Willis on that date, the original diagnosis was confirmed. Mr. Williams returned to work with some difficulty and on April 5, 1974, was forced to seek Doctor Willis' care again as he had not responded to treatment.

Doctor Willis diagnosed plaintiff's problem as essentially the same and hospitalized him that same day. This physician had plaintiff x-rayed for evidence of possible disc damage and treated him conservatively with traction for a period of about eight days. Doctor Willis discovered continuous muscle spasms in the lumbosacral area and finally discharged plaintiff with instructions to use a back brace.

Doctor Willis referred plaintiff to Dr. A. E. Dean, Jr., an orthopedic surgeon in Shreveport, Louisiana, who initially examined him on April 12, 1974. This doctor performed subsequent examinations on April 16, 1974, and April 29, 1974. Doctor Dean's examination revealed tenderness in the lower lumbar area and some narrowing at the L--5, S--1 interspace. His initial impression was that plaintiff suffered from a degenerative lumbosacral disc with some nerve root difficulty at times and felt that plaintiff may have possibly had a sprain superimposed upon this above described back condition.

Plaintiff returned to his home where he was continually under the care of Doctor Willis, who was of the opinion that plaintiff suffered from chronic lumbosacral injury with some nerve root irritation and felt that as of his September 12, 1974, examination that plaintiff was disabled from doing heavy work for an indefinite period of time. He also felt that plaintiff had not returned to normal since prior to his injury he had worked well without any pain, but could no longer do so.

Mr. Williams was also examined by Dr. Joseph Thomas, a general practitioner in Natchitoches, Louisiana, who saw him on July 1, 1974 . Doctor Thomas felt that plaintiff had a possible ruptured intervertebral disc at about L--4, L--5, and felt that surgery was a possible necessity. He referred plaintiff to Dr. D. F. Overdike, Jr ., an orthopedic surgeon in Shreveport, in August. After examining plaintiff on the day of the trial (September 30, 1974) Doctor Thomas discovered no change in plaintiff's condition since his original examination.

Doctor Overdike examined plaintiff extensively on August 8, 1974. He performed a myelogram and electromyogram, and finding no nerve root involvement, diagnosed plaintiff's injury as a lumbar sprain or strain. He hospitalized the plaintiff for eight days and at that time felt that he was disabled. On August 23, 1974, Doctor Overdike was of the opinion that the plaintiff was not ready to return to work at heavy labor. At the time of the trial Mr. Williams was still under the care of this physician.

On two separate occasions, June 27, 1974, and August 26, 1974, the plaintiff was examined by Dr. Austin W. Gleason, an orthopedic surgeon in Shreveport, at the request of the defendant-insurer, Liberty Mutual Insurance Company. Doctor Gleason found no disc problem, no nerve root irritation, and subsequently no disability. His findings were consistent after both examinations. He did, however, find some narrowing of the spaces at L--4, L--5, but did not feel that this condition was sufficient to cause disability. Doctor Gleason admitted, however, that plaintiff was suffering some degree of pain in his back on his final examination.

Defendant, Liberty Mutual Insurance Company, paid plaintiff compensation benefits of $65.00 weekly from April 8, 1974, until June 16, 1974, at which time benefits were terminated without resumption.

The issues presented by this appeal and answer thereto are:

1. Is plaintiff totally and permanently disabled as a result of the injuries he received from the above mentioned accident or accidents while in the defendant's employ?

2. Did the trial judge properly deny defendant's request for a new trial?

3. Was Liberty Mutual Insurance Company's termination of plaintiff's weekly benefits arbitrary, capricious, or without probable cause so as to subject it to penalties and attorney's fees as provided for by LSA-R.S. 22:658?

PLAINTIFF'S DISABILITY

The plaintiff in a workmen's compensation suit need not prove the exact nature of his disability so long as he can show that he is suffering from such disability to a degree that he is prevented from performing his normal work duties. Wallace v. Spohrer-Pollard Contractors, 76 So.2d 312 (La.App.2nd Cir. 1954).

As the Supreme Court stated in Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (La.1969):

'. . . where there is proof of an accident and of a following disability without any intervening cause, it is presumed that the accident caused the disability.'

The causal relation between the defendant's disability and his work related accident may be inferred whenever there is proof of an accident and an ensuing disability without the showing of an intervening cause. Gradney v. Vancouver Plywood Company, Inc., 299 So.2d 347 (La.1974); Johnson v. Travelers Insurance Company, 284 So.2d 888 (La.1973); Bertrand v. Coal Operators Casualty Company, supra.

This court held in Ardoin v. Houston Fire & Casualty Insurance Company, 235 So.2d 426 (La.App.3rd Cir. 1970) that:

'. . . in determining whether a claimant's disability is causally related to an accident, great weight attaches to the fact of a sudden change from a condition of health or ablebodiedness prior to the accident to one of disability immediately thereafter. Nixon v. Pittsburgh Plate Glass Company, 161 So.2d 361, 367 (La.App.3rd Cir. 1964); Taylor v. Mansfield Hardwood Lumber Company, 65 So.2d 360 (La .App.2nd Cir. 1953).'

As we have previously stated in Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22 (La.App.3rd Cir. 1975):

'The disability of a workmen's compensation claimant 'is presumed to have resulted from an accident, if before the accident the...