Bourgeois v. South Central Bell Tel. Co.

407 So. 2d 1245
CourtLouisiana Court of Appeal
DecidedNovember 12, 1981
Docket12605
StatusPublished
Cited by7 cases

This text of 407 So. 2d 1245 (Bourgeois v. South Central Bell Tel. 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
Bourgeois v. South Central Bell Tel. Co., 407 So. 2d 1245 (La. Ct. App. 1981).

Opinion

407 So.2d 1245 (1981)

Paul A. BOURGEOIS
v.
SOUTH CENTRAL BELL TELEPHONE COMPANY.

No. 12605.

Court of Appeal of Louisiana, Fourth Circuit.

November 12, 1981.
Rehearing Denied January 21, 1982.

*1246 Uhalt & Reck, Gothard J. Reck, New Orleans, for plaintiff-appellee.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Steward E. Niles, Jr., New Orleans, for defendant-appellant.

Before GULOTTA, GARRISON and BARRY, JJ.

GULOTTA, Judge.

Defendant, appealing from a lump sum compensation and medical expense award, contends that plaintiff failed to prove his lower back disability resulted from a job-related injury or work activity, and that plaintiff's claim for medical expenses has prescribed. Alternatively, South Central Bell claims that any award should be offset by social security benefits received by plaintiff under the provisions of LSA-R.S. 23:1225.

BACKGROUND

The fifty-seven year old plaintiff had worked as a commercial telephone installer for defendant for twenty-eight years. According to plaintiff, his job required pulling cable and moving heavy furniture. Paul Bourgeois testified that in the middle of February, 1979, while installing telephone service, he felt "something snap" in his back as he stood on a ladder and strenuously pulled cable through a ceiling. According to plaintiff, he told his supervisor and a co-worker on the same day that he had hurt his back. Bourgeois continued working until March 3, 1979.

Plaintiff then consulted an orthopedic surgeon and ultimately underwent two operations resulting in disc removal and a spinal fusion. According to plaintiff, other than the incident in mid-February, he had encountered no problem with his back during his twenty-eight years work for the telephone company except for a period of back strain in September, 1978, which had resulted from an episode of shoveling mud at his home. Plaintiff testified that he was still in pain at the time of trial and has not worked from March 3, 1979 until the date of trial.

Plaintiff's testimony regarding statements made by him to co-workers of the unwitnessed episode of pain on the job in February, 1979 was disputed by these workers. According to these witnesses, plaintiff did not relate to them that he had injured his back while pulling the cable in early 1979. They had observed plaintiff's difficulty in arising from a seated position with complaints of leg pain repeatedly over a period of several years prior to 1979.[1]

*1247 In addition to this conflicting lay testimony, the trial judge had the benefit of the expert testimony of three physicians who had treated plaintiff. Dr. Ralph Gessner, an orthopedic surgeon, first saw plaintiff on September 6, 1978, when he complained of low-back pain related to the shoveling incident in his back yard. At that time plaintiff had no previous history of back problems. An X-ray at that time revealed plaintiff had a moderate degree of degenerative osteoarthritis and Dr. Gessner was of the opinion that he had sustained a strain to the lumbar spine that had aggravated the pre-existing condition. This physician prescribed muscle relaxants, analgesics, and rest before allowing plaintiff to return to work on September 18, 1978.

Dr. Gessner saw plaintiff again on March 6, 1979 when he complained of severe back pain radiating to the left leg. This physician specifically asked plaintiff whether he had sustained an injury and plaintiff indicated he had not. Examination revealed moderate spasm in the low back with tenderness on the left side. X-rays again showed degenerative changes and Dr. Gessner prescribed relaxants and conservative treatment. On March 22, 1979, as plaintiff continued to exhibit marked discomfort, Gessner suggested hospitalization and pelvic traction, but plaintiff declined this treatment. Although Dr. Gessner was of the opinion that a work-related injury while pulling cable could have caused plaintiff's problem, he had no information from plaintiff's history to indicate any such traumatic occurrence or accident. In his opinion, plaintiff has exhibited "spontaneous" onset of symptoms. Dr. Gessner further testified that an individual engaged in labor has a more accelerated or aggressive course of osteoarthritis.

Dr. Robert Applebaum, a neuro-surgeon, first examined plaintiff on April 11, 1979 on complaints of pain in the lower back and left leg. Plaintiff dated his problem to approximately one and one-half months previously when he had noticed a gradual onset of pain in his lower back. According to Dr. Applebaum, plaintiff denied any particular injury. A lumbo-myelogram performed on April 18, 1979 showed a predominant defect at the L4-5 interspace corroborating this physician's diagnosis of a herniated disc on the left side. Dr. Applebaum performed a lumbar laminectomy on April 19, 1979 and removed a free disc fragment compressing on the nerve root. According to this physician, the "trigger mechanism" setting off this rupture would have occurred sometime very close to the onset of plaintiff's discomfort and pain. Applebaum testified that daily activities divorced from any work could supply sufficient stress to herniate a disc, but he acknowledged that the act of a man with degenerative arthritis in his lower back engaging in manual labor and pulling cable overhead could cause a herniated disc. Based on the history he had received from plaintiff, however, Dr. Applebaum was of the opinion that his herniated lumbar disc was not related to his employment.

Dr. Russell Grunsten, an orthopedic surgeon, saw plaintiff on August 21, 1979 on referral from Dr. Applebaum.[2] Plaintiff related to this physician that pulling on cable in his work had seemed to aggravate pain in the left lower extremity and that an episode of pulling cable in January, 1979 had been the "precipitating episode." Dr. Grunsten's examination indicated nerve root damage at the L5 level and he subsequently performed a fusion operation after Dr. Applebaum removed a second disc fragment.[3] Dr. Grunsten was of the opinion that a 57-year old person engaged in physical activities involving pulling cable at the limit of his strength and standing on a ladder would be prone to sustain a ruptured disc. Although Dr. Grunsten said it was possible that plaintiff could have had some disc damage from the shoveling incident in his yard in September, 1978, he was of the *1248 opinion that pulling on the cable, or "whatever occurred in January or February" was the more likely cause of the rupture.

JOB-RELATED INJURY

It is undisputed that plaintiff has suffered a herniated disc at the L4-5 level, which has resulted in two operations for removal of disc fragments and a spinal fusion. At issue, however, is whether plaintiff's back problem was job-related.

Having considered the conflicting testimony, both lay and expert, in the record before us, we cannot say that the trial judge's finding that plaintiff suffered a job-related accident resulting in impairment of his back is clearly wrong or manifestly erroneous. The trial judge simply chose to believe plaintiff's version of the incident and the testimony of Dr. Grunsten, rather than the testimony of plaintiff's co-workers and the opinions of the other physicians. As we noted in Gurry v. Allied Metals, Inc., 379 So.2d 871 (La.App. 4th Cir. 1980) and Newell v. New Orleans Public Service, Inc., 402 So.2d 246 (La.App. 4th Cir. 1981), the testimony of an employee may establish a work-related disabling accident where such testimony is corroborated by other credible evidence.

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Bluebook (online)
407 So. 2d 1245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bourgeois-v-south-central-bell-tel-co-lactapp-1981.