Wilson v. Ebasco Services, Inc.

• Decision Date: 26 January 1981
• Docket Number: No. 80-C-1507,80-C-1507
• Parties: Lorenza WILSON v. EBASCO SERVICES, INC. and Employees National Insurance Company.
• Court: Louisiana Supreme Court

Page 1248

393 So.2d 1248

Lorenza WILSON v. EBASCO SERVICES, INC. and Employees National Insurance Company.

No. 80-C-1507.

Supreme Court of Louisiana.

Jan. 26, 1981.

John S. Keller, New Orleans, for plaintiff-applicant.

Paul Deal and Darryl Foster, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-respondents.

DIXON, Chief Justice.

At issue in this worker's compensation litigation are the consequences of severe and constant pain as a result of an employment related injury, and the extent to which an employer may be required to furnish medical treatment.

Plaintiff is in her early thirties, and is a graduate of high school and a vocational program where she received secretarial training. She began employment with defendant in June, 1975 as a clerk-typist. Shortly after beginning her job with defendant, plaintiff was given the task of delivering mail throughout defendant's offices. This job involved lifting and carrying metal mail containers weighing approximately twenty-five pounds when loaded, and required plaintiff to climb stairs.

In February, 1976, after complaining of dizziness and alternating pain and numbness in her legs, plaintiff was hospitalized for treatment of anemia and thrombophlebitis. She was discharged from the hospital and returned to work, but remained under the care of a cardiologist, who prescribed various medications as well as support hose for plaintiff's condition.

On June 29, 1977, while lifting a metal mail container, plaintiff injured her back. Her employer was notified of this accident. Plaintiff consulted the physician who had been treating her for phlebitis, and was advised that she was suffering from a lumbar sacral sprain. In October, 1977, after appearing in a hospital emergency room complaining of back pain radiating down her legs, plaintiff was again hospitalized. The swelling in her legs and the tenderness of her calves was suggestive of phlebitis in an acute stage, but an orthopedic surgeon was also consulted in regard to plaintiff's complaints of back pain. Plaintiff was given medication and was discharged from the hospital approximately two weeks later with a corset for her back, and was thereafter regularly examined by the orthopedic surgeon.

In November, 1977 plaintiff was fired from her job by defendant, Ebasco Services, Inc., on the basis of her "continuing absence" from work. In January, 1978 plaintiff obtained employment at an airport, conducting security checks on passengers' baggage. She quit work after two or three weeks because of the pain in her legs and back. Between January and July, plaintiff was conservatively treated for her back problem by the surgeon, who believed that plaintiff's condition was caused by a simple lumbar sprain. In July, however, after a myelogram was conducted, the physician treating plaintiff diagnosed the possibility of ruptured discs in plaintiff's spine. A laminectomy was performed, and two ruptured discs were removed from plaintiff at the lumbar and lumbosacral levels. It is not disputed that this surgery was necessitated by the employment related injury more than a year before. Plaintiff was hospitalized for the last time in October, 1978 for treatment of her back and a possible recurrence of phlebitis. ¹

In order to alleviate the constant pain in her back following surgery, plaintiff had been supplied with a "transcutaneous neural stimulator" (T.N.S.), a device which is designed to short circuit the feeling of pain by means of electrodes implanted near the affected nerves. The T.N.S. device, a relatively new treatment, is said to be beneficial because it obviates the need for long-term medications which have a tendency to be addictive. However, the treating physician stated that plaintiff's pain and discomfort would be permanent, even though she might eventually be able to cope with it.

Plaintiff filed suit against her former employer and its compensation insurer, claiming that she was permanently and totally disabled. The trial court concluded that plaintiff was partially disabled, and awarded her compensation under the terms of R.S. 23:1221(3).

After trial was held, plaintiff filed a separate suit in which she sought a court order requiring her employer's insurer to furnish a letter of financial responsibility so that could gain admittance to the Mercy Hospital Pain Clinic for rehabilitative treatment. This action was dismissed on an exception of no cause of action, erroneously styled an exception of lis pendens and res judicata when filed with the district court. On both matters the judgment of the district court was affirmed by the Court of Appeal. Wilson v. Ebasco Services, Inc. et al., 386 So.2d 371, 386 So.2d 375 (La.App. 4th Cir. 1980). Plaintiff petitioned this court for review. We reverse.

Two issues are presented for consideration. The first is whether the courts below were in error in failing to find that plaintiff is totally disabled under the terms of R.S. 23:1221(1-2). The second issue is whether error was committed in upholding defendant's exception of no cause of action, effectively denying plaintiff the rehabilitative therapy which might assist her in rejoining the labor force.

Total Disability

The record clearly establishes the validity of plaintiff's claim for total disability. At trial, the depositions of four doctors were introduced into evidence. The two depositions introduced by plaintiff were taken from the two physicians who had treated her, Drs. Levy and Adatto. Of the two depositions introduced by defendant, one was taken from a doctor who had never examined plaintiff, although he reviewed her medical records; the other deposition was taken from a physician who had examined plaintiff both before and after surgery. Dr. Adatto, the orthopedic surgeon who performed the laminectomy on plaintiff, stated that plaintiff would always experience pain and discomfort on a permanent basis as a result of her surgery. The only hope held out by Dr. Adatto was that plaintiff would learn to adjust to her pain with the help of the T.N.S. device and therapy. At the time his deposition was taken, shortly before trial, Dr. Adatto was unwilling to state that plaintiff could return to work, although he did state that plaintiff should never perform any task that involved lifting, stooping or bending. Dr. Levy, the internist and cardiologist who treated plaintiff for phlebitis, deferred to Dr. Adatto's opinion regarding the prognosis for plaintiff's recovery from back surgery.

Defendant introduced the deposition of Dr. Williams, a thoracic and cardiovascular surgeon who had reviewed plaintiff's medical records. He expressed his opinion that the back surgery did not necessarily aggravate the preexisting phlebitis. Dr. Stokes, an orthopedic surgeon, actually examined plaintiff. It was his belief that plaintiff could eventually return to work, but, like Dr. Adatto, suggested that she refrain from any activity that involved bending, stooping or lifting. He further stated that, although some degree of pain would be unavoidable, the amount of pain which plaintiff experienced would depend upon the type of work that she did. Even though Dr. Stokes concluded that plaintiff was in good condition "mechanically," he expressed no doubt that she was actually suffering considerable pain, and was satisfied that plaintiff's complaints were sincere.

At the trial itself, plaintiff testified that her pain was too severe to return to work. She stated that she would be willing to resume employment if her physician recommended it, but that she would be unable to work if her pain remained at its present level. Her testimony was corroborated by her mother, who explained that plaintiff was unable to do anything but the lightest of chores around the house, and that plaintiff was even unable to push a grocery cart without incurring apparent pain.

The trial judge offered no written reasons for his judgment that plaintiff was only partially disabled. The only justification for this conclusion seems to be that plaintiff may be able to adjust to her pain, eventually, so that she could hold a job that would not involve any physical stress to her back. The Court of Appeal, while acceding to the trial judge's factual determination, also noted that some of plaintiff's pain and difficulty was caused by phlebitis, not the back condition. The court stated that: "If the phlebitis had been caused or aggravated by her injury her case for total disability would be much stronger." 386 So.2d at 374. While that conjecture is not incorrect, the record reflects that much needless effort was expended by counsel for both parties in inquiring into the causal connection between the phlebitis and the laminectomy.

Plaintiff's phlebitis, which is basically an inflammation of the veins, was a preexisting, recurrent condition, and one which caused intermittent pain. From the record, it would certainly appear that plaintiff's employer was aware that plaintiff suffered from this partially debilitating condition. Although there is some indication that the back surgery may have aggravated the phlebitis, the causal connection between the two is simply not relevant. The two conditions did not produce two discrete experiences of pain, but combined. Although there is sufficient evidence in the record to conclude that plaintiff's back pain, by itself, is sufficiently acute to prevent her from returning to work, it makes no difference if it is actually the combination of pain that is disabling. The case is like that of a worker who had only one good eye: if the sight in the good eye is lost through an employment related accident, the employer must bear the burden of furnishing compensation for the resulting blindness.

The legislature, in 1974, provided for such cases with a "Second Injury Fund" (R.S. 23:1371 et seq.), which entitles an employer to reimbursement for compensation under certain circumstances. See R.S. 23:1378. The purpose of the Second...