Bustamante v. Schwegmann Giant Supermarkets, Inc.

691 So. 2d 1379, 96 La.App. 4 Cir. 1519, 1997 La. App. LEXIS 921, 1997 WL 170278
CourtLouisiana Court of Appeal
DecidedApril 9, 1997
DocketNo. 96-CA-1519
StatusPublished
Cited by1 cases

This text of 691 So. 2d 1379 (Bustamante v. Schwegmann Giant Supermarkets, 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
Bustamante v. Schwegmann Giant Supermarkets, Inc., 691 So. 2d 1379, 96 La.App. 4 Cir. 1519, 1997 La. App. LEXIS 921, 1997 WL 170278 (La. Ct. App. 1997).

Opinion

J_iSCHOTT, Chief Judge.

This is a worker’s compensation case arising out of an alleged accident occurring on August 20, 1988. Under the statutory scheme in effect at that time, plaintiff submitted his claim with the Office of Workers Compensation, which issued a recommendation that his claim was not work related. Rejecting that recommendation, plaintiff filed suit in the district court, which granted him benefits for permanent disability pursuant to LSA-R.S. 23:1221 subject to credits for social security disability payments which plaintiff is receiving. The issues on appeal are whether plaintiff carried his burden of proving that 1) there was an accident; 2) the alleged accident caused the physical condition he was in at trial time; and 3) he is entitled to benefits for permanent total disability.

Plaintiff was born in Chile in February 1932. He came to New Orleans in 1981. For most of his work life, he was engaged in heavy labor including fourteen years as a driller and a miner in Chile. He started working for Schwegmann’s on June 25, 1985. He testified that he stopped working there because he was not physically capable due to several work-related accidents including a back injury in 1985 while he was working at the warehouse causing him to miss five or six days; the dislocation of a disc in 1986; and his hand ^getting smashed in another incident causing him to miss a week of work. He said that in the beginning of 1987 he was made to work so hard that he got sick for a month and when he returned he was able to get an assignment as a stock clerk.

He further testified as follows:

[1381]*1381On August 19, 1988, as he was bending over to put a box down, he fell to the floor. The supervisor said that he could not work anymore. He lay down after lunch and could not get up to work. He never went back to work because he was in bed for five weeks with pain. He believed that the degeneration of his back happened when he was working in the deli. He worked alone and he had to pull 600 pound racks. Sometimes even with three people, they would not move because the wheels were in bad condition.
He reported the accident to his supervisor and to Mr. Foti, the new manager. They informed the central office. The personnel director, Mr. Lee, told him not to worry, that they would pay him compensation retroactively.

Andres Roques, a Schwegmann’s personnel representative, testified that there was no report of any accident which gave rise to plaintiffs complaints. Roques stated that plaintiff came to see him after he left in August and said he was disabled. However, he did not attempt to make a worker’s compensation claim; he was simply inquiring about the possibility of collecting some disability benefits. Not until he received an October 31, 1988 letter from plaintiffs attorney did he know the plaintiff was claiming a job accident. Roques questioned plaintiffs supervisory personnel, but none had a report that plaintiff sustained a back injury on the job.

Plaintiff called Gerardo Ruiz, another Sehwegmann’s stock clerk, who was working in a nearby aisle when plaintiff allegedly had his accident. He said he heard a “commotion” from the aisle where plaintiff was working. He went over and found plaintiff complaining of pain in his back. Their supervisor, Troy Ball, was there, and plaintiff indicated that he hurt himself | ¡¡while lifting a case of canned goods. According to Ruiz, Ball told plaintiff he was going to make a report.

In this court defendant points to a number of suspicious circumstances which cast doubt on the trial court’s finding that plaintiff had an accident. These include the fact that he saw his private physician; Dr. Pedro Angulo, two or three days after the alleged accident, but he told him nothing about it. Dr. Angulo took it as just another recurrence of his chronic back trouble. Then on October 26, 1988, plaintiff was examined by Dr. Gordon Nutik, an orthopedic surgeon, in connection with a claim plaintiff was making for Social Security disability benefits, but plaintiff said nothing about an accident on August 20,1988. He told Nutik that he hurt his back in a November 1985 incident at work. Again, plaintiff was treated at Charity Hospital on October 17, 1988, for a low back pain of a month’s duration and those records show that he denied any trauma. Finally, plaintiffs wife testified that she knew his back was hurting after August 20, 1988, be-, cause she prepared a claim he was making for disability benefits, but she knew nothing about an accident.

Plaintiffs own credibility was in doubt for other reasons. He stated in his employment application with Schwegmann’s that he had no back problems. Yet he was treated by Dr. Gordon McHardy for back problems in 1981 and again in February 1985. When he was seen by Dr. Robert Applebaum in 1990, he denied any back problems.

Despite all these curiosities and inconsistencies, the trial judge was apparently satisfied that plaintiff and Ruiz told the truth. Even though the trial judge had nothing more to go on than we do, since the entire case was submitted on depositions, and even though we would probably conclude that there was no accident, we must defer to the fact finder. The conclusion of the trial court that there was an accident is not manifestly erroneous because it was Usupported by the testimony of plaintiff and corroborated by that of Ruiz.

Next, there is the issue of causation by the accident for plaintiffs back condition at the time of the trial. A summary of the medical testimony is essential to this discussion.

Dr. Gordon McHardy, a practitioner of internal medicine, first saw plaintiff in 1982. In February 1985 plaintiff came with complaints of neck and low back pain. X-rays showed degeneration L4 and changes in the [1382]*1382cervical spine. McHardy thought this had developed over a long period of time and he recommended that plaintiff stop heavy lifting and straining. Plaintiff came again in February 1988 with acute back pain from pulling a heavy load of milk. McHardy would not say that plaintiffs condition at that time was work related, but he thought plaintiff would continue having problems and that he should not do any heavy work.

Dr. Pedro Angulo, a family practitioner, had been treating plaintiff since October 1987 for lumbar pain and stiffness. At that time plaintiff was unable to stand up and his range of motion was about fifty percent. He said he hurt his back while he was pushing something at work. Angulo diagnosed a lumbar sprain. In March 1988 plaintiff came into the office with lumbar pain, stiffness, and severe spasm. The diagnosis was arthritis of the spine. Plaintiff returned in April 1988 with pain and stiffness, reporting that he was unable to bend and stand up. Angulo thought he had a disc problem.

Throughout this period of time, Angulo was giving him medication for pain, and he recommended that plaintiff see an orthopedist. Then, on August 22,1988, two or three days after the accident now sued on, plaintiff again came to Angulo who described the problem as “another recurrence.” Angulo stated that he did not know what caused the recurrence. He had no note that it occurred at work and couldn’t say whether it occurred at work or even when Isplaintiff was in bed. He treated plaintiff until October 13, 1988, while he continued to complain of severe lumbar pain. The diagnosis was lumbar inflammation and spondylitis.

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691 So. 2d 1379, 96 La.App. 4 Cir. 1519, 1997 La. App. LEXIS 921, 1997 WL 170278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bustamante-v-schwegmann-giant-supermarkets-inc-lactapp-1997.