Brown v. Dan Kelly Warehouse, Inc.

466 So. 2d 717, 1985 La. App. LEXIS 9328
CourtLouisiana Court of Appeal
DecidedMarch 12, 1985
DocketNo. CA-3057
StatusPublished

This text of 466 So. 2d 717 (Brown v. Dan Kelly Warehouse, 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
Brown v. Dan Kelly Warehouse, Inc., 466 So. 2d 717, 1985 La. App. LEXIS 9328 (La. Ct. App. 1985).

Opinion

BARRY, Judge.

Plaintiff appeals the dismissal of his workmen’s compensation suit.

On August 25, 1982 plaintiff, a truck driver, struck his head while backing a [718]*718tractor at Dan Kelly Warehouse, Inc., his employer. In April, 1983 plaintiff missed several days of work without calling in and was terminated. He sued for compensation and penalties and amended to add the employer’s insurer, Commercial Union Insurance Company, and to state a wrongful termination claim. There was a stay order involving the employer (who filed bankruptcy proceedings) and no allegation that it had insurance covering the latter claim, so the trial court properly did not consider the wrongful discharge claim. The court held plaintiff did not carry his burden of proof. We affirm.

After the accident the employer sent plaintiff to Dr. Alaynick who diagnosed a contusion of the right ear, a hearing problem and a cervical sprain with muscular neck pains. X-rays were negative except for osteoarthritic degenerative changes in the area of C-5, 6 and 7. Analgesics, heat, a cervical collar and rest were prescribed. By August 27, 1982 the hearing problem had subsided and Dr. Alaynick told plaintiff he could resume work on or about August 30th. On August 31st Dr. Alayn-ick found a good range of neck motion, advised discontinuing the neck brace, and discharged plaintiff to work September 2nd.

Plaintiff worked from September 2, 1982 until April 13, 1983 when he did not go to work. He claimed car problems on his way to work and said he walked over a mile to get back home. He sweated excessively, felt dizzy and the back of his head and neck hurt. Plaintiff testified that from the time of the accident until April, 1983 the aches in his head, neck and back would come and go. April 13, 1983 was “[t]he first time it got that bad....”

Prom September 2, 1982 to April, 1983 plaintiff saw other doctors for various reasons. On September 8, 1982 he saw Dr. Flannigan for numbness in his forearms, but he did not mention headaches or the accident. Plaintiff had not worked for several days and Dr. Flannigan gave him a note to return to work.

Plaintiff sustained facial injuries in December, 1982 when he was struck by a bottle or glass and received treatment at Ochsner Hospital. Those records do not reflect any complaints related to the job-accident. Plaintiff saw Dr. McGee on February 28, 1983 because of a cold and upper respiratory infection. Dr. McGee said the visit was to obtain a return to work slip and plaintiff did not mention the accident.

After the April 13, 1983 episode plaintiff went to Dr. Green who (according to plaintiff) discovered high blood pressure and referred him to Dr. Epps, a neurosurgeon. Dr. Epps conducted a sensory and general neurological examination and his impression was that plaintiff had a degenerative disk disease in the cervical spine and a possible carpal tunnel syndrome. Considering the x-rays taken previously which showed osteoarthritic changes, he stated those changes existed prior to the injury. Dr. Epps placed great emphasis on plaintiff’s claim that he was still experiencing pain from this job-accident which could have aggravated the pre-existing arthritic condition. After prescribing an anti-inflammatory drug and an analgesic, Dr. Epps saw plaintiff again on May 9th and June 7th and found he improved. When he saw plaintiff on November 15, 1983 with continued complaints of headaches and neck problems, Dr. Epps recommended an EMG, a CAT Scan and physical therapy. Dr. Epps admitted his opinion would be different if plaintiff had not experienced constant pain and conceded an arthritic condition can flare up without trauma.

Dr. Applebaum, a neurosurgeon, saw plaintiff in October, 1983 at defendant’s request and testified plaintiff related numbness in both hands and neck soreness from the April 13, 1983 incident and initially denied any history of trauma. Plaintiff informed the doctor of his treatment by Dr. Epps as well as his examination by Dr. Jarrott at his attorney’s request.1 X-rays [719]*719ordered by Dr. Applebaum on October 26, 1983 and taken by Dr. Schneider show moderate degenerate changes in the cervical spine (C-5, C-6, C-7) manifested by disk narrowing and bony spurs at the joint levels, a common finding in a forty-one year old person. Dr. Schneider compared his x-rays with those taken on August 25,1982 and testified there were no progressive changes that would indicate a healing reaction to trauma sustained prior to the first films. Dr. Applebaum concluded there was a possibility plaintiffs numbness was caused by tardy ulnar nerve palsies which is consistent with Dr. Hightower’s subsequent finding of peripheral polyneuropathy not related to trauma. Dr. Applebaum found no symptoms consistent with nerve root irritation and felt plaintiff could return to work.

On February 9,1984 Dr. Hightower, neurologist, recommended by Dr. Epps, conducted electromyography and nerve conduction studies. The tests indicated peripheral polyneuropathy (a dysfunction of the nerves in the extremities caused mostly by alcoholism and diabetes and not by trauma) and that plaintiff had nerve root irritation at C-7 of the spinal cord. That irritation is only an equivocal finding since further testing was not done. Dr. Hightower, said that signs of muscle spasm and neck pain with radiation into the patient’s arm would be the necessary clinical symptoms to be correlated with his suggestion of a nerve root irritation.

Plaintiff’s co-workers, Raymond Algere, Russell Miles, David Armstrong, testified he did not complain of neck or head pain prior to the accident, but made such complaints after his accident. However, their testimony does not show that plaintiff continued to suffer from August, 1982 to April, 1983. Margaret Givens, who lived with plaintiff, said he complained of headaches and neck problems for the first half of the year, then his fingers. She testified plaintiff was on medication for high blood pressure.

Plaintiff testified his complaints did not go away when he returned to work in September, 1982. He still had pains in the right side of his head, back of his neck, on one side of his face, and his eye would water. Plaintiff said he did not tell the doctors he saw between August, 1982 and April, 1983 about the job-accident and alleged problems because he was afraid of losing a “good-paying” job. He said he was disciplined often prior to April 13,1983 for not calling in when he did not go to work and he had been suspended for three days subsequent to the accident. Plaintiff admitted having a criminal record and that he lied on his work application. He said he did not miss work from September 2, 1982 to April 13, 1983 because of the job-injury although he missed work during that period. He testified he would sometimes experience a headache and some days he would feel normal. He pinpointed April 13, 1983 when his condition “got that bad....” Since then he has worked as a cement finisher although it appears he contradicted himself as to how many days a week he worked.

Plaintiff contends the trial court erred by refusing to order an independent medical examination under La.R.S. 23:1123. However, it does not appear the requisite application was made. Plaintiff filed a rule which stated the insurer had not sent a letter of credit for medical evaluation and treatment of plaintiff in favor of plaintiff’s doctor.

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466 So. 2d 717, 1985 La. App. LEXIS 9328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-dan-kelly-warehouse-inc-lactapp-1985.