Cowans v. Schwegmann Giant Supermarkets, Inc.

626 So. 2d 755, 1993 La. App. LEXIS 3329, 1993 WL 445000
CourtLouisiana Court of Appeal
DecidedOctober 26, 1993
DocketNo. 93-CA-390
StatusPublished

This text of 626 So. 2d 755 (Cowans 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
Cowans v. Schwegmann Giant Supermarkets, Inc., 626 So. 2d 755, 1993 La. App. LEXIS 3329, 1993 WL 445000 (La. Ct. App. 1993).

Opinion

CANNELLA, Judge.

Defendant, Schwegmann’s Super Market, Inc. (Sehwegmann), appeals from a judgment which found plaintiff, Roy W. Cowans (Co-wans), temporarily totally disabled from a job related injury on September 10, 1984. We affirm, finding that the trial judge was not manifestly erroneous.

In August of 1984, Cowans, a meat cutter at one of defendants’s groceries, injured his back when he attempted to bend over and pick up a box of meat. He was seen by the company doctor who, after examination, sent him back to work on light-duty, only. He was unable to tolerate work due to pain, so was sent home and placed on bed-rest and referred to physical therapy, returning to work approximately one week later. While attempting to load some meat boxes on a cart, he experienced another onset of severe pain, was examined once more by a physician, given analgesics and sent to physical therapy. After one month with no improvement, he was referred to East Jefferson General Hospital where he was informed that he had a slipped disc.

Cowans was referred to Dr. Richard Co-rales on October 15,1984. After examination and testing, Dr. Corales performed a disckec-tomy at the L-5, S-5 level on October 23, 1984. Cowans noted some relief initially, but his condition worsened resulting in a second surgery in April of 1985. At that time, several disc fragments were removed and a lumbar laminectomy was performed. Thereafter, he experienced some improvement and was more tolerant to ambulation.

Over the next several years, Cowans’ condition did not significantly improve. He continued to suffer debilitating pain intermittently, upon attempted physical activities, which resulted in the onset of depression and sexual dysfunction. He remained under the [756]*756care of various physicians at various times, including those involved in a pain program at Hotel Dieu Hospital, those involved in a work-hardening program at East Jefferson General Hospital and those who treated him at the rehabilitation department at F. Edward Hebert Hospital. During this period of time, from 1984 until 1988, he was not released for any type of work, although efforts were being made to improve his condition so that he could return to some type of light employment.

On May 11,1988,1 Cowans was shopping at a local Wal-Mart store when he slipped on a small ball on the floor. In an effort to keep from falling, he grabbed the shopping cart, twisting his back in the process. He reported the incident to the store manager and went to the emergency room at St. Jude Hospital in Kenner, Louisiana. Cowans was then referred to Dr. Vaclav Hamsa because of increased pain in his back. Dr. Hamsa reviewed the his history and discussed the case with Dr. Corales. After a C-T scan and lumbar myelogram, Dr. Hamsa determined that Cowans suffered a new ruptured disc at the L^4, L-5 level. Because of his depressed state due to the continuing pain and incapacity, it was felt he was not a candidate for further surgery. However, Dr. Hamsa believed that Cowans was a candidate for a chemical procedure, chemonucleolysis. Therein, a dissolving chemical is introduced into the disc which reheves pressure on the nerve. Due to his financial condition, this procedure was not done prior to trial.

As a result of the accident at Schweg-mann’s on September 10, 1984, Cowans filed suit on September 1, 1985 for workers compensation benefits. He received benefits until May 12, 1991 when Schwegmann discontinued them because it believed his inability to return to work was due to the intervening accident at Wal-Mart in 1988. A judge trial on the workers compensation action was held on July 20, 1992. After reviewing the deposition testimony of the various physicians, the medical reports, the testimony of Cowans, his wife, his son and his niece, the trial judge, by judgment dated February 19, 1993, determined that Cowans was temporarily totally disabled due to the work related “accident in 1984.” The trial judge rejected Schweg-mann’s contention that the subsequent accident at Wal-Mart caused his disability.

On appeal, Schwegmann asserts first that the trial judge erred in holding Cowans was temporarily disabled under the Workers Compensation Act because the evidence shows that he was able to return to gainful employment prior to the accident at Wal-Mart. Second, it contends that the trial judge erred in failing to consider the testimony of Dr. Hamsa who clearly éstablished that Cowans suffered a new and different injury in the Wal-Mart accident.

In regard to the first issue, Schweg-mann argues that Cowans failed to prove that he is entitled to temporary and total benefits as a sole result of the work related accident under La.R.S. 23:1221 because under La.R.S. 23:1221, in order for an employee to receive benefits, he must prove he is unable to engage in any self-employment or gainful occupation for wages, whether or not the same or similar to that in which he was customarily employed when injured. Schwegmann asserts that the medical evidence shows that Cowans was in fact actively looking for a job at the time the second accident occurred. Thus, Cowans failed to carry his burden of proof.

La.R.S. 23:1221, in effect on the date of the injury, provided:

For injury producing temporary total disability of an employee to engage in any self-employment or gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.

[757]*757The evidence in this case shows that Co-wans, now 42 years old, is married with one adult son, has a sixth grade education and no other formal training. For most of his working life, he has been a meat cutter, although at times he worked as a burner at a metal company, a dragline helper, a laborer, an electrician’s helper, a used auto parts salvager, a tow truck driver and a door repairman. He was physically active prior to 1984, but no longer participates in fishing, hunting, ball playing, swimming, horseback riding and handling a pony and cart.

The medical evidence shows that he followed all of the treatment recommendations of the treating physicians and the rehabilitation specialists. While he was seen and treated by a number of doctors, the main treatment was provided by Dr. Corales, the neurosurgeon who operated on him in 1984 and 1985, Dr. Alvin Darby who supervised his rehabilitation program from 1987 until 1991, and Dr. Hamsa, the orthopedic surgeon who treated him after the Wal-Mart accident. Each physician testified by deposition and all of Cowans’ medical, rehabilitation and vocational reports were introduced into evidence.

Dr. Corales testified that after the second surgery, Cowans did not recover satisfactorily and that it was frustrating from his point of view that he could not do anything to alleviate his pain and incapacity. He testified that Cowans continued to suffer with activity, but, because of his depressed state, was not a candidate for further surgery. He hoped that the work-hardening program and later the rehabilitation program with Dr. Darby and his group would result in his ultimate ability to return to some type of work, but at no time was he considered able to return to work while under his care. He noted that Cowans was sent to a pain clinic, but was unable to continue, apparently because he became too anxious.

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Related

Fiffie v. Borden, Inc.
618 So. 2d 1199 (Louisiana Court of Appeal, 1993)

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Bluebook (online)
626 So. 2d 755, 1993 La. App. LEXIS 3329, 1993 WL 445000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowans-v-schwegmann-giant-supermarkets-inc-lactapp-1993.