Batiste v. Joan of Arc Co.

458 So. 2d 623, 1984 La. App. LEXIS 9843
CourtLouisiana Court of Appeal
DecidedNovember 7, 1984
DocketNo. 83-975
StatusPublished

This text of 458 So. 2d 623 (Batiste v. Joan of Arc 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
Batiste v. Joan of Arc Co., 458 So. 2d 623, 1984 La. App. LEXIS 9843 (La. Ct. App. 1984).

Opinion

STOKER, Judge.

Defendants, Joan of Arc Company and its worker’s compensation insurer, American Motorists Insurance Company, appeal from a judgment of the trial court declaring the plaintiff, Margie Batiste, to be totally and permanently disabled and awarding her worker’s compensation benefits in the amount of $92 per week for the period of her disability, medical expenses, and medical travel expenses. Plaintiff answers the appeal asking that the trial court’s denial of penalties and attorney’s fees be reversed. We affirm.1

At trial the parties stipulated to the following facts:

“1.
“That Margie Batiste was an employee of Joan of Arc Company on October 28, 1982.
“2.
That Joan of Arc Company had a policy of workmen’s compensation insurance in effect covering Joan of Arc Company for all workmen’s claims which occurred on October 28, 1982.
“3.
That Margie Batiste did, in fact, sustain an injury to her right arm on the job on October 28, 1982.
“4.
That as a result of the injury referred to above, Margie Batiste received medical treatment in connection therewith.
“5.
That Margie Batiste’s average weekly wage was $138.00 and she was paid workmen’s compensation benefits from the date of the incident until her release to return to work by Dr. Kalifey on November 8, 1982.
“6.
That all medical bills of Dr. Kalifey, Dr. McCann, Dr. Naalbandian and Dr. Banks have been paid, but the medical bills of Dr. Abramson, Dr. Garcia-Oller and Dr. Pisarello have not been paid.”

Mrs. Batiste was injured while she was working as a potato trimmer for Joan of Arc. A co-worker, Mary Augustine, accidentally stabbed her in the elbow with a knife used for trimming potatoes. The supervisor, Brunette Bordelon, placed a bandage on the cut, and Mrs. Batiste attempted to return to work. Initially the cut appeared to be of no great consequence, but according to Mrs. Batiste her attempts to use her right hand after sustaining the injury were unsuccessful. She again complained to Mrs. Bordelon who sent her to see the personnel manager, Leo Rogers. Mr. Rogers replaced the bandage, and Mrs. Batiste again attempted to return to work.

After further complaints by Mrs. Batiste, Mr. Rogers sent her to see the company doctor, Dr. Edmond Kalifey. Dr. Kalifey gave Mrs. Batiste a tetanus shot, placed [625]*625three sutures in the wound, and gave her medication for pain. Mrs. Batiste testified that she attempted to return to work the next two days but was unable to use her right hand. On November 8, 1982, Dr. Kalifey removed the sutures and released Mrs. Batiste for work. He did note that she complained of pain in her arm, hand and shoulder, but he did not believe that the nature of the wound indicated that there should be any nerve damage.

Since the injury, Mrs. Batiste has continually complained of increasing pain in her arm, hand, shoulder and neck. She has seen a number of doctors, some of whom could find no abnormalities. Her primary evidence of disability presented at trial consists of the depositions of Dr. Jose Garcia Oiler and Dr. Carlos Pisarello, both neurosurgeons practicing in New Orleans, Louisiana. According to these doctors, Mrs. Batiste has suffered an ulnar nerve injury, and is totally disabled. Certain procedures have been recommended to correct her condition.

Defendants argue on appeal that the trial court committed manifest error in accepting the testimony of the plaintiff and that of the two neurosurgeons. In our review of the trial court findings in this matter we are guided by the standards of review set out by the Louisiana Supreme Court in Crump v. Hartford Accident & Indemnity Company, 367 So.2d 300 (La. 1979). In Crump, the court set out the following standards for review:

“On appellate review, the trial court’s factual findings of work-connected disability are entitled to great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless clearly wrong. The reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are as reasonable.”

Mrs. Batiste is a 44-year-old divorced mother of six children, five of whom are living at home. She completed only the sixth grade, and her only other employment other than at Joan of Arc has been as a housekeeper. There appears to be no dispute that if Mrs. Batiste has suffered the nerve injury described by Drs. Garcia Oiler and Pisarello, she is disabled.

Defendants argue on appeal that Mrs. Batiste has fabricated her symptoms and complaints of pain to support her claim for disability. Defendants point out that a brother of Mrs. Batiste has suffered a similar ulnar nerve injury, and the same treatment which has been recommended for Mrs. Batiste was recommended for her brother. Defendants also point out conflicts in testimony between that of Mrs. Batiste and that of Mrs. Augustine and Mrs. Bordelon. The conflicts concern the exact circumstances of the accident, the amount of bleeding resulting from the wound, and Mrs. Batiste’s ability to work immediately after the accident. Defendants also argue that Mrs. Batiste was inconsistent in her own testimony as to her ability to work immediately after the accident. We disagree.

Mrs. Batiste’s testimony in her deposition and at trial appears to us to be consistent even though it is not well articulated. Mrs. Batiste makes it clear that she attempted several times to continue to work either by continuing to cut potatoes with her right hand or holding the potato with her right hand and trying to use her left hand to cut. She makes it clear that she was unable to continue cutting potatoes at the assembly line pace. Mrs. Batiste’s testimony as to her inability to use her right arm after the injury is corroborated by two of her children, ages 16 and 17, and her sister. It is apparent that the trial court’s findings were based in large part on its credibility evaluation of the lay witnesses. These evaluations do not appear to us to be unreasonable, and we do not feel that we may substitute our judgment of credibility for that of the trial court.

[626]*626Defendants also argue that the trial court erred in its evaluation of the extensive medical evidence. We will briefly review that medical evidence.

As previously stated, Mrs. Batiste was initially examined by Dr. Edmond Kalifey, a general practitioner in Marksville, Louisiana. Dr. Kalifey was of the opinion that the wound was not serious and, despite Mrs. Batiste’s complaints, he did not believe that she had suffered any nerve damage. Dr. Kalifey testified that he did not recall if she complained of pain while moving her hand.

Dr. Bryan McCann, Mrs. Batiste’s family doctor in Marksville, examined her on November 11 and December 15, 1982. He found no abnormalities and indicated that Mrs. Batiste was probably suffering from bursitis. Dr. McCann saw Mrs.

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Related

Crump v. Hartford Acc. and Indem. Co.
367 So. 2d 300 (Supreme Court of Louisiana, 1979)
Thompson v. Natchitoches Parish Hosp. Serv. Dist.
335 So. 2d 81 (Louisiana Court of Appeal, 1976)

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Bluebook (online)
458 So. 2d 623, 1984 La. App. LEXIS 9843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/batiste-v-joan-of-arc-co-lactapp-1984.