Bistes v. Asplundh Tree Expert Co.

499 So. 2d 402
CourtLouisiana Court of Appeal
DecidedNovember 14, 1986
DocketCA-3956
StatusPublished
Cited by4 cases

This text of 499 So. 2d 402 (Bistes v. Asplundh Tree Expert 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
Bistes v. Asplundh Tree Expert Co., 499 So. 2d 402 (La. Ct. App. 1986).

Opinion

499 So.2d 402 (1986)

Evans M. BISTES, Jr.
v.
ASPLUNDH TREE EXPERT COMPANY and ABC Insurance Company.

No. CA-3956.

Court of Appeal of Louisiana, Fourth Circuit.

November 14, 1986.

*403 George R. Simno, III, James J. Kokemor, New Orleans, for plaintiff-appellant.

John G. Gomila, Jr., Patricia M. Crowley, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellees.

Before WARD and ARMSTRONG, JJ., and PRESTON H. HUFFT, J. Pro Tem.

ARMSTRONG, Judge.

This is an appeal from a judgment of the trial court in which Asplundh Tree Expert Company's employee was found partially disabled and was awarded benefits pursuant to the Louisiana Workmen's Compensation Act. LSA-R.S. 23:1021, et seq. (1975) (amended 1983).

Plaintiff Evans M. Bistes, Jr., had been employed as a tree-trimmer by defendant, Asplundh, for approximately eight years. On February 14, 1983, the date of the alleged accident, Bistes was working as a groundman while his foreman, Juan Espinosa, was positioned above in a hydraulic lift bucket cutting away limbs and branches. Plaintiff claims that at approximately 10:00 A.M. a large tree limb fell from about thirty feet above, the butt of which struck him on the head, bounced off of his hardhat and hit him squarely on the right shoulder. Bistes alleges that the accident was witnessed by his foreman, Espinosa, and the general foreman, Donald Donovan, and *404 that both men came to his aid. Donovan released Bistes from work about an hour later and drove him to get his motorcycle. Donovan told Bistes not to return to work without a note from his physician.

Upon his return home, plaintiff tried to relieve his pain by taking a hot shower and by applying ice packs to the injured area. His parents testified that they observed abrasions, a cut and a large bruise on their son's right shoulder. They also noted a small cut under his right eye. Plaintiff's mother took him to their family physician, Dr. Oscar R. Pereda, on February 16, 1983. (February 15, 1983 was the Mardi Gras Holiday). Dr. Pereda, having found tenderness in the cervical area and a decreased range of motion in the right shoulder, prescribed a muscle relaxant and ordered x-rays from Mercy Hospital. The x-rays appeared normal and the plaintiff returned to work on February 22. At that time he presented Donovan with a note from Dr. Pereda which specified that Bistes had been treated for a shoulder injury. Bistes then requested and received permission from Donovan to perform only light ground duties due to the pain in his shoulder.

Plaintiff maintains that Donovan told him that he would be reimbursed for any medical expenses incurred. He claims that he gave Donovan a copy of the x-ray bill from Mercy Hospital when he returned to work on February 22, 1983. This bill was in the amount of $41.00. On February 28, 1983 Bistes was given a pay check for $102.00 and an additional check in the amount of $41.00 for "expenses paid."

Also on February 28, 1983, Bistes was issued a job infraction warning regarding an incident which had occurred the previous month. Donovan and Espinosa accused Bistes of "refusing to pay attention and of causing a production loss" when he allegedly left a small piece of equipment at the dump site on January 25, 1983. The tool was recovered the following work day.

On March 1, 1983, Espinosa ordered Bistes to climb a tree and cut the upper branches without the aid of the hydraulic lift bucket. Bistes refused to do so after pointing out that he could not support his body weight because of his shoulder pain. The plaintiff was then fired for refusing to climb the tree.

Bistes claims that he continued to experience pain and discomfort whenever he attempted any activity involving the use of his right shoulder. On March 28, 1983, Bistes consulted an orthopedic surgeon, Dr. Charles R. Billings, who found that the right shoulder was still tender to palpitation. Dr. Billings also noted mild joint crepitus and a contusion of the right shoulder with probable early degenerative rotator cuff disease, post-traumatic in origin. He recommended an exercise program and the occasional use of nonsteroidal anti-inflammatory drugs. At the request of Asplundh, plaintiff was examined a year later, on March 9, 1984, by Dr. H.R. Soboloff. Dr. Soboloff found evidence of winging of the right scapula and of acromioclavicular joint tenderness when pressure was applied or when the plaintiff was engaged in lifting activities involving his right side. Dr. Soboloff suggested that plaintiff have an EMG (Electromyogram) to check for nerve damage and that plaintiff be placed on an exercise program and steroid injections. He opined that this type of treatment should resolve plaintiff's problem and "allow him to return to gainful employment."

Asplundh has continuously denied workmen's compensation benefits to plaintiff. The trial court rendered judgment finding plaintiff partially disabled and awarded him $146.00 per week in workmen's compensation for the duration of his disability, not to exceed 450 weeks. Louisiana Worker's Compensation Act, LSA-R.S. 23:1221(3), (1975) (amended 1983).

By his first assignment of error appellant contends that the trial court erred in finding that plaintiff's injuries were suffered in a work-related accident rather then in a nonwork-related prior motorcycle accident. We disagree.

Although procedural rules are construed liberally in favor of workmen's *405 compensation claimants, the claimant retains the burden of proving by a preponderance of the evidence that a work-related accident took place. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). The burden of proof, however, shifts to the defendant when he alleges that the plaintiff's injuries are the result of an intervening cause, i.e. the prior motorcycle accident. Lightfoot v. J. Ray McDermott & Co., 417 So.2d 394 (La.App. 4th Cir.1982).

Plaintiff admits that he was in a motorcycle accident that occurred some seven years earlier. His medical records refer to the earlier accident and note injuries to the left kidney and left elbow. Subsequent medical examinations did not reveal any damage to the right shoulder prior to the alleged February 14th accident. Plaintiff testified that he was injured on February 14, 1983. His parents testified that they saw bruises and abrasions on their son's shoulder when he returned from work that day and a black eye the next day. Bistes sought medical help two days after the injury. He returned to work but was fired when he was unable to perform tasks requiring the use of his right shoulder.

Plaintiff testified that the only witnesses to the accident were his foreman and general foreman. Both Espinosa and Donovan denied seeing the accident or being informed of it until they received notice from Bistes's attorney on March 22, 1983. Donovan, however, admits driving Bistes to his motorcycle on February 14, because Bistes "wasn't feeling well," and also admits receiving Dr. Pereda's note on February 22. The foremen likewise deny authorizing reimbursement for Bistes's medical bills, although neither could explain the $41.00 check issued to the plaintiff six days after he allegedly presented Donovan with a $41.00 x-ray bill from Mercy Hospital.

Asplundh argues that the injury was the result of a motorcycle accident which occurred prior to Bistes being assigned to Espinosa's crew.

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Bluebook (online)
499 So. 2d 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bistes-v-asplundh-tree-expert-co-lactapp-1986.