Collins v. Browning-Ferris, Inc.

650 So. 2d 770, 93 La.App. 5 Cir. 365, 1994 La. App. LEXIS 3552, 1994 WL 696662
CourtLouisiana Court of Appeal
DecidedDecember 14, 1994
DocketNo. 93-CA-365
StatusPublished
Cited by1 cases

This text of 650 So. 2d 770 (Collins v. Browning-Ferris, 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
Collins v. Browning-Ferris, Inc., 650 So. 2d 770, 93 La.App. 5 Cir. 365, 1994 La. App. LEXIS 3552, 1994 WL 696662 (La. Ct. App. 1994).

Opinions

hGOTHARD, Judge.

Claimant, J.T. Collins, appeals a judgment rendered by a hearing officer in the Workers’ Compensation Administration granting defendant’s motion for summary judgment. Claimant filed a disputed claim for workers’ compensation on January 8, 1992, asserting that he injured his back while lifting a cylinder in the course and scope of his employment with defendant, Browning-Ferris, Inc. (BFI).

On May 20, 1992, after taking the deposition of, and reviewing a medical report received from a treating physician, Dr. Pierre Espenan, defendant filed a motion for summary judgment. ' The motion asserted that the injuries sustained by the claimant were the result of an automobile accident which occurred about one week after the work acci[772]*772dent and, therefore, not compensable. After a hearing on the motion on October 2, 1992, the hearing officer took the matter under advisement. On December 15, 1992 the officer rendered judgment, accompanied by written reasons, in favor of defendant.

hThe matter was placed on the docket of this Court and set for oral argument on October 6, 1993. However, because this Court was notified that the court reporter was unable to find the transcript, the matter was removed from the docket by order of this Court dated, September 17, 1993. On July 13,1994, the defendant filed a motion to reset the matter on the docket. The claimant has indicated to this Court that he is in agreement with that request. Consequently, the matter has been reset, although this Court is still without the transcript of the hearing on the Motion for Summary Judgment.

According to the claim form contained in the record, on February 23, 1991, the claimant was:

“inside the body of a truck working on a cylinder by himself. He strained to pick up a tool while holding a cylinder to prevent it from falling on him. He then felt a pull in his back.”

It is clear from the reasons for judgment that the trial court found that, an automobile accident in which claimant was injured on February 27, 1991, and" not the work related accident, was the cause of claimant’s disc herniation and resulting disability. It is also clear that the officer relied solely on the deposition of Dr. Pierre Espenan to support that finding.

In that deposition Dr. Espenan states that he had treated the claimant for an infected tooth about one month prior to the accident. Dr. Espenan consulted Dr. Jesse Penico and arraigned for Dr. Penico to hospitalize the claimant for a diagnostic workup because of the lingering infection. On February 26, 1991 the claimant went to see Dr. Penico for that purpose. Because the claimant related the history of the work related back injury to Dr. Penico at that time, Dr. Penico suggested that claimant be examined immediately by Dr. Espenan.

UDr. Espenan saw claimant the same day and felt that he would be disabled for another four to five days due to the back injury. The claimant related to the doctor that he hurt his back at work, but that the first symptom became manifest shortly after completion of the job, and was not reported to his supervisor at BFI.

During that examination on the 26th' of February, Dr. Espenan found a serious back musculoligamentous strain. The claimant had severe restriction of motion in his lumbo-sacral area. He had more spasm demonstrated in the left side than on the right side. Dr. Espenan explained that the patient had no radiation of serious discomfort into either extremity. He had a negative straight leg raising test. The deep tendon reflexes were active and equal and the patient did not exhibit any loss of sensation in either lower extremity. X-rays taken at that time indicated a defect in the pars interarticularis of L5, which is a congenital defect, with no slippage. Dr. Espenan testified that the injury was not a direct trauma. Because there were no neurological changes, Dr. Espenan recommended conservative treatment.

When asked whether the symptoms exhibited by claimant at that time were indicative of a disc herniation, Dr. Espenan responded:

“I couldn’t be certain at that time. I felt that it was just a low back strain, and I certainly was not ... I did not make the diagnosis of a ruptured disc.”

He also stated that he felt that, in the claimant’s case the disc herniation happened, “not acutely, it happened subsequently”. He opined that, based on his examination of claimant on the 26th, he sustained a musculo-ligamentous strain of the back. He did not feel that the claimant sustained a herniated disc.

The claimant returned the next day to see Dr. Espenan. However, because Dr. Espen-an was out of town, the claimant saw another physician in Dr. |sEspenan’s office. The claimant related that he had been in an automobile accident and had “wrenched” his back. Reading the chart prepared by his associate, Dr. Espenan stated that this injury was more severe than the previous back inju[773]*773ry. There was an immediate onset of pain with symptoms which indicated he had sustained a disc herniation.

Dr. Espenan saw the claimant again on March 5, 1991. At that time the claimant’s condition had worsened. He was having more difficulty with the low back, suggesting a more severe problem than first indicated. Dr. Espenan testified that he conducted some additional tests and consulted Dr. Mi-meles. The testimony does not give Dr. Mimeles’ full name, his area of expertise, or the extent of his treatment of claimant, but it appears from memoranda contained in the record that Dr. Mimeles performed a lami-nectomy on the claimant.

Dr. Espenan stated that, in his opinion, surgery was necessary because the claimant was not responding to conservative treatment, and had a large disc fragment that was evident on the MRI.

When asked directly if he was able to say which accident caused the disc herniation, Dr. Espenan responded:

“I don’t know — I didn’t go into the ergonomics, the type of accident that he had in the automobile. So I — all I can say is that he got worse after that accident than when he was before the accident. The fact that he was sitting in the front seat of the car and got wrenched, that — you know, I don’t know how serious that could have been, but the fact that he got worse shortly after that accident, it made me suspicious of that being more of a cause than the accident that he had at work.”

Compensation is due to an employee if that employee receives a personal injury by accident arising out of and in the course of his employment. LSA-R.S. 23:1031(A). An accident is defined by LSA-R.S. 23:1021(1) as:

16“an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

Further, a claimant in a workers’ compensation case has the burden of establishing his disability and its causal relation with the employment accident by a preponderance of the evidence. Lubom v. L.J. Earnest Inc., 579 So.2d 1174, 1178 (La.App. 2 Cir.1991); Andrews v. Music Mountain Water Co., 637 So.2d 571 (La.App. 2 Cir.1994), writ denied, 640 So.2d 1356 (La.1994). Proof by a preponderance of the evidence is sufficient when the evidence taken as a whole, shows that the fact sought to be proved is more probable than not.

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761 So. 2d 618 (Louisiana Court of Appeal, 2000)

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650 So. 2d 770, 93 La.App. 5 Cir. 365, 1994 La. App. LEXIS 3552, 1994 WL 696662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-browning-ferris-inc-lactapp-1994.