Augustine v. Paul Wall Truck Line, Inc.

603 So. 2d 770, 1992 WL 205613
CourtLouisiana Court of Appeal
DecidedJune 24, 1992
Docket91-291
StatusPublished
Cited by10 cases

This text of 603 So. 2d 770 (Augustine v. Paul Wall Truck Line, Inc.) 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
Augustine v. Paul Wall Truck Line, Inc., 603 So. 2d 770, 1992 WL 205613 (La. Ct. App. 1992).

Opinion

603 So.2d 770 (1992)

Morris A. AUGUSTINE, III, Plaintiff-Appellee,
v.
PAUL WALL TRUCK LINE, INC. and Commercial Union Insurance Company, Defendants-Appellants.

No. 91-291.

Court of Appeal of Louisiana, Third Circuit.

June 24, 1992.
Rehearing Denied August 13, 1992.

*771 Wilson & Walker, H. Gregory Walker, Jr., Alexandria, Paul Wall Truck Line/appellant.

Knoll, Roy & Spruill, Clark C. Roy, Marksville, for Augustine/appellee.

Before GUIDRY and YELVERTON, JJ., and COREIL, J. Pro Tem.

GUIDRY, Judge.

In this worker's compensation case, defendants, Paul Wall Truck Lines, Inc. and its worker's compensation carrier, Commercial Union Insurance Company (collectively referred to herein as Wall), appeal a judgment of the trial court finding plaintiff, Morris A. Augustine, III, permanently and totally disabled and awarding him $106.72 per week in compensation benefits plus 12% penalties on "the total amount of plaintiff's claim and loss" together with $7,500 in attorney's fees, medical expenses and costs. We reverse the judgment of the trial court in part and affirm in part.

FACTS

Augustine was employed by Wall to deliver sack and bulk fertilizer. His duties included loading, driving and unloading either a flat bed or hopper bed truck, depending on whether he was delivering bulk or bagged fertilizer. On January 28, 1986, after unloading an order of bulk fertilizer on a farm near New Roads, the conveyor chute, which plaintiff was in the process of securing to the side of the truck, slipped or fell striking plaintiff in the area of his head and shoulders. Augustine was found semi-conscious on the ground by the resident farmer and transported to Maringouin where he was treated and released by Dr. James O'Neal.

The next day plaintiff consulted Dr. Bryan McCann, who practiced general medicine in Marksville. Augustine complained of head, neck, shoulder and back pain. Examination revealed two lacerations on the forehead and numerous abrasions on the face, chest and back. X-rays of the head, neck, shoulders and back showed no abnormalities. A urinalysis that was performed was also normal. He was treated with narcotic analgesics, muscle relaxants and sedatives. Plaintiff returned to Dr. McCann on January 31, February 5, 12 and 26, 1986. During all visits his complaints were of general pain in the affected areas. He additionally complained of transient dizziness. Dr. McCann continued treating plaintiff with narcotics and muscle relaxants and added injections of two different steroids plus Antivert for the dizziness. As Dr. McCann could find no objective reasons for Augustine's continued complaints of pain, he referred him to Dr. Robert Po, an orthopaedic surgeon.

Dr. Po treated Augustine from February 28, 1986 through April 20, 1987. According to Dr. Po, during that period of time plaintiff's only symptoms were subjective complaints of pain. Plaintiff's complaints of pain were mainly in the head, back and neck, but at times included the shoulder(s), arm and leg. Beginning with plaintiff's December 5, 1986 visit and continuing with the December 12, 1986, January 6, February *772 11 and March 27, 1987 visits, Dr. Po was of the opinion that plaintiff could return to work on a light duty status. At the April 20, 1987 visit, Dr. Po told Augustine that he was "dismissing him to light work". No medications were prescribed at that visit. Dr. Po was never able to find any objective reason for plaintiff's complaints and restricted him to "light duty" based solely upon Augustine's subjective complaints. When questioned, in deposition, concerning the existence of objective evidence to substantiate plaintiff's complaints, Dr. Po stated:

"No, there's no objective evidence. There's no evidence of any joint problems in his extremities, no evidence of neurological involvement in his extremities to indicate any kind of central problem in his neck or back such as a disc, fracture or dislocation."

Shortly after Dr. Po began telling plaintiff he could return to work on light duty, Augustine began to again consult Dr. McCann with continued complaints of pain. Dr. McCann continued treating plaintiff symptomatically, i.e., with steroids and non-steroidal anti-inflammatories, narcotic and non-narcotic analgesics, muscle relaxants and sedatives, until August 1990, when the doctor's license to practice was restricted. Dr. McCann did not treat plaintiff subsequent to August of 1990.

In addition to his head, neck, shoulder and back complaints, Augustine also complained of jaw pain and the inability to fully open his mouth. This resulted in referral of plaintiff to Dr. Marks, a dentist specializing in temporomandibular joint disorders (TMJ). Dr. Marks did a diagnostic orthoscopy of the right and left TMJs and referred plaintiff to Dr. Gremillion for follow-up care. Dr. Gremillion treated plaintiff from December 22, 1987 through August 31, 1988, by the insertion and adjustment of a mandibular physiologic orthotic appliance. In a February 1989 report to plaintiff's attorney, Dr. Gremillion indicated that TMJ surgery was not indicated and that plaintiff's "prognosis could be better if he maintained regularly scheduled follow-up visits". Dr. Marks did not testify. Dr. Gremillion's report did not suggest that plaintiff's TMJ condition was in any way disabling.

Plaintiff was also sent to several orthopaedic surgeons for evaluation. The report most favorable to plaintiff's cause came from Dr. Bruce Razza of New Orleans. Upon examining Augustine, Dr. Razza was able to find "... no obvious spasm. No obvious neurologic defects". X-rays taken at Dr. Razza's order of plaintiff's cervical and lumbar spine were "... within normal limits". When questioned as to Augustine's diagnosis, Dr. Razza answered "... some cause of chronic pain in the neck and low back, and then in turn the arm symptoms likely were related to the neck and the leg symptoms likely related to the low back". Dr. Razza was of the opinion that further testing should be performed, he agreed that plaintiff could engage in employment subject to the following restrictions: "[no] activities involving repetitive lifting greater than fifteen to twenty pounds, maximum lift forty pound range. [No] repetitive bending, squatting, stooping, climbing, prolonged standing or sitting, and prolonged use of the upper extremities above the shoulder level".

Basically, Dr. Razza agreed with Dr. Po's assessment of Augustine, although placing slightly more severe restrictions on plaintiff's ability to work.

Dr. James Charles McDaniel of Lafayette issued the report most unfavorable to Augustine. In his deposition, the following colloquy took place:

"Q. Did you suspect him to be malingering?
A. Yes. And I use that, when somebody, when I don't think somebody's being truthful to me intentionally, then I would term that malingering. If I think it's a hysterical component or conversion reaction where they may be psychologically inept or whatever, I wouldn't call that malingering. I might call that possible hysteria or conversion reaction or hypochondriasis, something of that nature. In this case I felt it was voluntary.... I found nothing of an orthopaedic or neurological nature to even explain *773 the type of symptoms he was having, much less to create any disability. I thought that this man should've been able to return to normal activities which somebody at his age and for his size could do."

When asked if he would defer to Dr. Razza's opinion as to the need for further testing, Dr. McDaniel stated:

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Bluebook (online)
603 So. 2d 770, 1992 WL 205613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/augustine-v-paul-wall-truck-line-inc-lactapp-1992.