Antilley v. Sentry Ins. Co.

426 So. 2d 1370, 1983 La. App. LEXIS 7698
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1983
Docket82-461
StatusPublished
Cited by6 cases

This text of 426 So. 2d 1370 (Antilley v. Sentry Ins. 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
Antilley v. Sentry Ins. Co., 426 So. 2d 1370, 1983 La. App. LEXIS 7698 (La. Ct. App. 1983).

Opinion

426 So.2d 1370 (1983)

Eloise P. ANTILLEY, Plaintiff-Appellee,
v.
SENTRY INSURANCE COMPANY, Defendant-Appellant.

No. 82-461.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1983.

*1372 Provosty, Sadler & deLaunay, Albin A. Provosty, Alexandria, for defendant-appellant.

Brittain, Williams & Wright, Jack O. Brittain, Natchitoches, for plaintiff-appellee.

Before GUIDRY, CUTRER and LABORDE, JJ.

LABORDE, Judge.

Eloise P. Antilley, widow of Luther P. Antilley, brought this suit to recover workmen's compensation death benefits. The trial court found that Luther sustained a heart attack as a result of an automobile accident on May 5, 1980; that he was within the scope of his employment at the time of the accident and heart attack; that the heart attack and his death on May 10, 1980, were directly caused and connected to the accident of May 5, 1980; and awarded Eloise death benefits and expenses, including the hospital bills; the amount paid to the funeral home and monument company, the physicians fee; travel expenses; twelve (12%) percent penalties on the unpaid expenses, plus attorney's fees in the amount of SEVEN THOUSAND FIVE HUNDRED AND NO/100—($7,500.00)—DOLLARS. The defendant, Sentry Insurance Company, appeals. Eloise, appellee, answers the appeal seeking an additional sum for attorney's fees for the preparation and representation in this appeal of not less than SEVEN THOUSAND FIVE HUNDRED AND NO/100—($7,500.00)—DOLLARS.

From our review of the record, we conclude that the trial court abused its discretion in awarding $7,500.00 in attorney's fees. Also, the trial court erred in its calculation of weekly death benefits. Therefore, the judgment is amended to award only $5,000.00 in attorney's fees and to increase the weekly death benefits to $95.13 and in all other respects the judgment is affirmed. We deny appellee's request for additional attorney's fees for services rendered on appeal since we feel that the fees awarded are adequate to cover services rendered on the trial level and on appeal.

The issues on appeal are:

I. Whether the evidence reasonably supports the trial court's finding of fact *1373 that Luther Antilley sustained a heart attack on May 5, 1980, and that his death on May 10, 1980, was caused by the heart attack on May 5, 1980.
II. Whether the trial court erred as a matter of law in according more weight to the testimony of Dr. Grodman on the issue of causation.
III. Whether the trial court erred as a matter of fact and law in finding:
(A) Sentry Insurance Company subject to penalties and attorney's fees for an arbitrary and capricious failure to pay benefits;
(B) Computation of the award of benefits.
IV. Whether appellee, Eloise Antilley, is entitled to additional attorney's fees.

FACTS

On May 5, 1980, Luther was involved in a collision while riding as a passenger in a truck owned by his employer, Cane River Supply Company. Luther told his employers he was not hurt physically, but a little shook up. The accident happened on a highway several miles from the Cane River Supply Company's main business building and after the accident, Luther continued to do some of his routine work. Later that evening, he became extremely sore and complained of pain in his right chest and shoulder. He was seen by his family doctor, Charles E. Cook, M.D., a general practitioner of Natchitoches, who hospitalized Luther for three days. Luther was admitted for pain and discomfort associated with anxiety. Luther continued complaining to members of his family and co-workers of pain and discomfort in the right chest and shoulder area.

On May 10, 1980, while driving from Natchitoches to his home, several miles east of Natchitoches, Luther suffered a heart attack. His vehicle left the blacktop road on which it was being driven, went into a ditch and caught on fire. Two individuals who happened along at this time saw the vehicle in the ditch burning, and removed Luther from the vehicle and transported him to the Natchitoches Parish Hospital where he was pronounced dead on arrival. Although there were smudge marks on Luther's head, it is clear that the fire did not cause or contribute to his death.

Following the death, Dr. Charles E. Cook, who happens to be the Coroner for Natchitoches Parish did an autopsy. Because Dr. Cook was not a pathologist, he removed most of the vital organs from Luther's body and sent them to Dr. P.G. Grodman, a pathologist in Monroe, Louisiana, who has worked closely with the Natchitoches Parish Coroner for several years. Upon viewing the organs and certain slides of the organ tissue, Dr. Grodman called Dr. Cook on the telephone and stated that the pathological findings indicated that Luther's heart showed damage which appeared to be five days old when he died on May 10, and that Luther's continued complaints of pain and discomfort in his right shoulder and chest area indicated that Luther was suffering with heart symptoms from May 5, to May 10, 1980. Dr. Grodman stated that Luther had died of a second heart attack on May 10, which was directly attributable to the accident and heart attack on May 5th.

CAUSATION

The first issue we address is the correctness of the trial court's determination that Luther's heart attack that resulted in death was caused in part by the accident on May 5, 1980. On this issue, the court was presented with two conflicting medical opinions.

Dr. Cook, family physician and coroner, and Dr. Grodman, pathologist, concluded Luther sustained a right coronary thrombosis as a result of the accident of May 5, 1980, and that while it was not fatal, both doctors opined that the right coronary thrombosis resulted in an increase in the workload on the remaining arteries and contributed to the acute occlusion of the left anterior descending coronary, which did cause Luther's death.

The defendant introduced the depositions of Dr. McCormick and Dr. Godley. Dr. McCormick, a specialist in Forensic Pathology and Coroner of Bossier Parish, stated that he found no evidence of the organizing process, which he believed should have been *1374 very evident in the case of a thrombosis at least five (5) days old. Dr. McCormick suggested that what Dr. Grodman actually saw on her gross examination was arteriosclerotic plague. While he agreed that Luther probably suffered a left-sided heart failure on May 10, 1980, he could not say the heart failure was caused by an occlusion of the arteries. Dr. Godley, a specialist in internal medicine and cardiology, opined that there is usually no connection between an occlusion of the right artery and an occlusion of the left artery.

To resolve this conflict in medical testimony, it is helpful to review recent jurisprudence concerning the relation between job related accidents and resultant disabilities. At the outset we observe that a worker's pre-existing condition does not bar his recovery under our workmen's compensation statute. Guidry v. Serigny, 378 So.2d 938 (La.1979); Guillory v. U.S. Fidelity & Guar. Ins. Co., 420 So.2d 119, (La.1982). An employer takes the employee as he finds him. An abnormally susceptible worker is entitled to the same protection as a healthy worker. Allor v. Belden Corp., 393 So.2d 1233 (La.1981); Guillory v. U.S. Fidelity & Guar. Ins. Co., supra.

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Bluebook (online)
426 So. 2d 1370, 1983 La. App. LEXIS 7698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/antilley-v-sentry-ins-co-lactapp-1983.