Achord v. HE Weise Const. Co.

422 So. 2d 1248, 1982 La. App. LEXIS 8185
CourtLouisiana Court of Appeal
DecidedOctober 12, 1982
Docket15118
StatusPublished
Cited by8 cases

This text of 422 So. 2d 1248 (Achord v. HE Weise Const. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Achord v. HE Weise Const. Co., 422 So. 2d 1248, 1982 La. App. LEXIS 8185 (La. Ct. App. 1982).

Opinion

422 So.2d 1248 (1982)

Melton H. ACHORD
v.
H.E. WEISE CONSTRUCTION COMPANY, et al.

No. 15118.

Court of Appeal of Louisiana, First Circuit.

October 12, 1982.
Rehearing Denied December 16, 1982.

*1249 A. Wayne Stewart, Denham Springs, for plaintiff-appellant.

L. Michael Cooper, Baton Rouge, for defendant.

Before EDWARDS, WATKINS and SHORTESS, JJ.

EDWARDS, Judge.

Plaintiff, Melton H. Achord, brought this suit for workmen's compensation benefits against his employer, H.E. Weise Construction Company and its insurer, Employers National Insurance Company. Plaintiff's petition alleged that he had suffered permanent and total disability from an injury to his back and shoulder caused by an accident arising out of the course and scope of his employment: Plaintiff also sought an award of penalties and attorney fees.

The trial judge found plaintiff to be totally and permanently disabled as a result of his accident while working for Weise and awarded compensation benefits at the maximum legal rate, $148.00 per week. Additionally, the trial court awarded penalties and attorney fees. Judgment was rendered against Employers National alone, since Weise was never served with the petition. Employers National has suspensively appealed.

The record reflects that at the time of his accident, plaintiff had been employed by Weise as a carpenter for approximately ten weeks. Plaintiff has an extensive history of prior accidents and medical problems which include four back operations and serious damage to his right chest and shoulder. On November 23, 1979, while helping to construct some scaffolding, plaintiff fell to the ground from a height of approximately sixteen feet. Plaintiff landed in a sitting position on a concrete surface. Dr. Joe Morgan, an orthopedic surgeon who saw plaintiff at the hospital emergency room and treated him thereafter, testified that as a result of the fall, plaintiff suffered a cervical strain, contusion of the right shoulder, lumbosacral strain and laceration of the right leg. Plaintiff has not returned to work since his accident and testified at trial that he suffers such severe pain in his back and down his legs that he is unable to do so.

As noted by the trial judge, there is no doubt that Achord is totally and permanently disabled. Defendant does not challenge that finding. The central issue to be decided was whether that disability stems from plaintiff's preexisting condition or is a result of the accident which occurred while plaintiff was working for Weise. The trial court stated that Achord had shown that he was performing all of the duties of his job prior to the accident and concluded that plaintiff had established a causal connection between the accident and his disability.

Defendant has raised a number of issues on appeal. Employers National contends that the trial court erred in concluding that Achord was rendered permanently and totally disabled by virtue of the November 23, 1979, accident. Defendant also asserts that penalties and attorney fees were erroneously awarded. Additionally, defendant maintains that the trial court erroneously calculated the amount of plaintiff's award and improperly required defendant to pay past medical expenses.

CAUSAL CONNECTION BETWEEN ACCIDENT AND DISABILITY

The primary issue on appeal is whether or not the trial court committed error in holding that plaintiff's disability was caused by the November 23, 1979, accident. Plaintiff has a previous history of serious back and shoulder injuries. In 1963 Achord suffered a ruptured disc in his back. As a result of that injury, he underwent four back operations *1250 between 1963 and 1965, including a laminectomy and a spinal fusion. In September of 1977, plaintiff suffered a serious injury when a tractor which he was operating overturned on top of him. In that accident plaintiff sustained a "crush injury" to the right chest and shoulder, resulting in damage to the nerves and muscles in that area.

Following his tractor accident in September of 1977, plaintiff did not return to work for approximately two years. In November of 1977, he was granted Social Security disability benefits.[1] Achord returned to work as a carpenter in September of 1979, some ten weeks before the November 23 accident. Achord and his wife testified that before his return to work in September of 1979, plaintiff built a house for them to live in. According to plaintiff, when he returned to work after the tractor accident, he was able to perform all of his job duties without any substantial pain.

Ronnie Hall and Dennis Bornes, co-workers of plaintiff, testified at trial. Hall testified that he worked with Achord frequently during the ten weeks that plaintiff worked for Weise prior to his fall from the scaffolding. Hall testified that plaintiff never failed to perform his duties, which included the lifting and carrying of large boards as well as the use of a hammer and a 16-pound maul. Bornes testified that he had worked with plaintiff on one occasion prior to his fall and that plaintiff did his job as well as any other man.

The testimony of a number of medical experts was admitted at trial by way of deposition. The consensus of the experts was that plaintiff had recovered from the effects of his November 23, 1979 fall and that his remaining disability was the result of his pre-existing condition. Dr. Thomas Davis, plaintiff's family doctor, was alone among the experts in concluding that plaintiff's fall contributed to his continuing disability. The remainder of the experts testified that plaintiff's pre-existing condition made him totally and permanently disabled and incapable of working as a carpenter prior to his accident. They did concede, though, that if plaintiff were working pain free as a carpenter prior to his fall and was unable to return to work after his fall because of pain, the accident did contribute to his disability. However, those witnesses testified that in their opinions Achord could not have been performing the duties of a carpenter prior to his accident without working in substantial pain.

Defendant contends that the trial court erred in accepting the lay testimony that plaintiff was performing his job without substantial pain prior to his accident and in concluding that the accident bears a causal relation to his present disability. Employers National asserts that the medical testimony that plaintiff was disabled to perform the work of a carpenter prior to the accident should be accepted as conclusive.

The law is well-settled in cases involving aggravation to a pre-existing condition. A worker who is normally susceptible to disability from an accident is entitled to workmen's compensation benefits even though the same accident or injury would have caused little or no harm to a healthy worker. Loyd v. Atlas Const. Co., 341 So.2d 1245 (La.App. 1st Cir.1976), cert. denied, 344 So.2d 4 (La.1977); Marcotte v. Atlas Const. Co., Inc., 340 So.2d 341 (La.App. 1st Cir. 1976), cert. denied, 342 So.2d 676 (La.1977). An employer takes an employee as he finds him and is liable for compensation even when the disabling accident was such only because of a preexisting disorder in the employee. Crawford v. Al Smith P. & H. Service, Inc., 352 So.2d 669 (La.1977); St. Pe v. H.P. Foley Elec. Co., 341 So.2d 639 (La.App. 4th Cir.1977); Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3rd Cir.1976).

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Bluebook (online)
422 So. 2d 1248, 1982 La. App. LEXIS 8185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/achord-v-he-weise-const-co-lactapp-1982.