Cook v. Marshall Bros. Lincoln-Mercury, Inc.

427 So. 2d 655, 1983 La. App. LEXIS 7972
CourtLouisiana Court of Appeal
DecidedFebruary 7, 1983
DocketNo. 82-CA-164
StatusPublished
Cited by2 cases

This text of 427 So. 2d 655 (Cook v. Marshall Bros. Lincoln-Mercury, 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
Cook v. Marshall Bros. Lincoln-Mercury, Inc., 427 So. 2d 655, 1983 La. App. LEXIS 7972 (La. Ct. App. 1983).

Opinion

CHEHARDY, Judge.

Plaintiff has appealed from a judgment dismissing his suit for total and permanent disability benefits and penalties and attorney’s fees against his former employer and its workmen’s compensation insurer.

The issues before this court are whether or not the disability is work-related, and if so, whether or not penalties and attorney’s fees are due.

Plaintiff is disabled as a result of a brain-stem infarct. The stroke manifested itself on September 9, 1980 at plaintiff’s place of employment, Marshall Brothers Lincoln-Mercury, Inc. While standing, speaking with another employee who was seated at a desk, plaintiff suddenly felt dizzy, put his head on the desk and passed out. He was taken to a local hospital where it was determined that he had suffered a cerebral vascular accident (stroke). His condition improved somewhat, but on November 15 he had transient ischemic attacks, a recurrence of his previous stroke, and is now totally disabled.

The trial court found that plaintiff had failed to carry the burden of proof that his disability is work-related and that it was caused by the stressful condition of his employment.

Plaintiff’s occupation is that of a used car salesman. He has worked for various dealerships for many years, moving on where business was best. He had previously worked for Marshall Brothers in 1972. At the other dealerships he was required to work a standard 40-hour week. He attributes his disability to the stress involved in his work, which differed drastically from that at other dealerships.

Plaintiff described his duties as follows: He was required to work from 8 a.m. to 9 p.m., Monday through Friday, and from 8 a.m. to 6 p.m. on Saturday, a 75-hour week. Upon reporting each morning it was his duty along with two other used car salesmen, to move vehicles from a secured position on the back of the lot, where they had placed them at the close of business the previous evening, to a prominent position at the front of the lot. It took about one hour each day. He was also required to see that the cars had sufficient gas and to take them, when necessary, to muffler shops and tire stores, and deliver them to other wholesale dealers who bought cars from his employer. These duties had been performed by porters at the other dealerships where plaintiff worked, and he was able to concentrate on selling cars.

The used ear office was an air-conditioned trailer and most of the automobiles plaintiff demonstrated were air-conditioned, but he was in and out of the office as the work required. On the day of plaintiff’s first attack the temperature was the third highest to have ever been recorded in the City on that date, in what was one of the hottest summers on record.

Plaintiff’s other duties consisted of demonstrating cars for prospective customers, taking them on test drives, calling finance companies and employers to verify employment and secure credit, accompanying the customers to the downtown business area to visit banks and loan companies to secure credit and arrange loans, and dealing with customer complaints after a vehicle had been sold.

Because of the extensive hours plaintiff was required to work it was difficult to arrange for personal medical and dental appointments, and even to get to the bank to take care of necessary personal business. He had been working for Marshall Brothers from 1978 until the accident in 1980.

The central issue is whether the cerebral vascular incident and the disability of which plaintiff complains is job related. This is substantially a factual question and depends to a large extent on the duties of his job and the testimony of the doctors who examined and treated him.

Dr. Richard Palmer, a neurologist, first saw plaintiff at East Jefferson Hospital on September 13, 1980. A history disclosed that plaintiff had been in good health until five days previously when he woke up with a headache. During the day at work on September 9 he lost consciousness and when he awoke he had a weakness and numbness [657]*657on the left side of his body. He was taken to the hospital emergency room. The weakness persisted and was associated with numbness on the right side of his body. Plaintiff complained of vertigo, nausea, intermittent double vision and a whirling sensation associated with certain head positions. He was hospitalized from September 9 to September 24.

Dr. Palmer performed a thorough neurological examination and a work-up while plaintiff was hospitalized — a CT scan, electroencephalogram, a spinal tap, pattern shift, brainstem auditory evoked potentials, nerve conduction studies, glucose tolerance, blood tests and an angiogram.

Plaintiff had great difficulty maintaining his balance in a sitting position at his initial examination. His right pupil was smaller than the left and clumsiness and loss of coordination in the right arm and a loss of sensation over the right side of his face was noted.

The nerve conduction studies, which measure the function of the peripheral nerve, disclosed a mild slowing, indicating an abnormality, and the glucose tolerance test for diabetes was mildly abnormal. The diabetic condition was not severe enough to require treatment.

On October 28,1980, there was some improvement, but plaintiff’s balance was still quite marked and he continued to complain of double vision. He seemed to be recovering from the stroke.

On November 15, plaintiff was hospitalized because of severe symptoms. The doctor concluded he had a recurrent stroke again. Plaintiff was last seen by this physician on March 12, 1981. (He had been under medical care at the Veterans Administration Hospital because he could no longer afford private medical care.)

Dr. Palmer found continued weakness on the right side and loss of sensation. Plaintiff still had paralysis on the right side of his body and was not released to return to work.

As we understand Dr. Palmer’s testimony on the causal relationship between plaintiff’s occupation and his present disability, he stated, as positively as any medical witness will make any pronouncement, that in his opinion the natural stress associated with plaintiff’s occupation was one factor which accelerated his disability, and that it was very unusual for a person 48 years of age to have a stroke. He concluded the mild diabetes had no relationship to plaintiff’s disability.

Dr. Susan Boston, a neurologist, saw plaintiff on one occasion on March 30,1982, on behalf of defendants. She took his history and performed a neurological examination. She found an abnormal jerking-type movement of plaintiff’s eyes on the gaze to the right and a marked right side weakness in examination of the motor system. Cerebral function was normal on the left side, but impaired on the right, which caused plaintiff to walk with a limp. She concluded plaintiff had a brainstem infarction or stroke, but had no opinion as to the cause.

In reviewing the previous hospital records she thought a predisposing factor would be the presence of diabetes. Other predisposing factors would be cardiac disturbances, elevated cholesterol or lipids in the blood stream or heavy smoking. She would not commit herself on whether or not stress would be a factor that tends to accelerate arteriosclerosis, but stated that stress does not help anything. Stress is an individual thing, and a direct correlation of how much stress is going to cause arteriosclerosis cannot be made. She did state stress is felt to be a factor in accelerating coronary artery disease.

Dr.

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427 So. 2d 655, 1983 La. App. LEXIS 7972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-marshall-bros-lincoln-mercury-inc-lactapp-1983.