Davidson v. Highland Superstores, Inc.

550 So. 2d 669, 1989 La. App. LEXIS 1506, 1989 WL 100403
CourtLouisiana Court of Appeal
DecidedAugust 23, 1989
DocketNo. 20714-CA
StatusPublished

This text of 550 So. 2d 669 (Davidson v. Highland Superstores, 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
Davidson v. Highland Superstores, Inc., 550 So. 2d 669, 1989 La. App. LEXIS 1506, 1989 WL 100403 (La. Ct. App. 1989).

Opinion

SEXTON, Judge.

This is an appeal in a worker’s compensation ease in which plaintiff-appellant was denied compensation benefits based upon a finding by the trial court that plaintiff-appellant had failed to prove a work-related accident by a preponderance of the evidence. We reverse.

FACTS

Plaintiff Howard D’Wayne Davidson was employed by Highland Superstores in Shreveport beginning in November of 1986 as a stock clerk. His duties included loading and unloading of trucks, helping customers load appliances into their cars or trucks and general warehouse duties.

On July 19, 1987, while taking a shower, plaintiff noticed a bulge in his left groin area. He had never noticed the bulge before that time. He continued to work for approximately two weeks thereafter. As he noticed a throbbing pain related to the bulge, he decided to consult Dr. Tommy Mook, a licensed qualified physician specializing in the field of urology. Dr. Mook diagnosed a left inguinal hernia and recommended that plaintiff have it repaired.

The plaintiff was then referred to Dr. Frederick Knight, a general surgeon classified as an expert in the field of vascular and general surgery, for repair of the hernia. Between his initial visit with Dr. Mook and the referral to Dr. Knight, Mr. Davidson reported the injury to his employer. He received surgery to repair the hernia and was off work for two months, returning on October 12,1987. He was not paid for the time he missed work, and he did not receive worker’s compensation benefits or repayment for medical bills in connection with the repair of the hernia. After this time, plaintiff made a claim for worker’s compensation with the State of Louisiana, Office of Worker’s Compensation. The Office of Worker’s Compensation made a recommendation that temporary total benefits be paid to Mr. Davidson. However, one of the insurance companies, Liberty Mutual Insurance Company, the worker’s compensation insurer for Highland Superstores, rejected the recommendation of the Office of Worker’s Compensation. Thereafter, suit was filed.

The trial court rendered judgment against Mr. Davidson asserting that he had not demonstrated by a preponderance of the evidence that there was “an accident” on the job as defined under the worker’s compensation law. Mr. Davidson now appeals that judgment.

The testimony at trial consisted of Mr. Davidson’s assertion that he was employed by Highland Superstores and [671]*671worked as a stock clerk beginning in November of 1986. His job entailed the loading and unloading of trucks or customer’s cars with appliances, along with general warehouse duties. He testified that his job involved lifting televisions, ranges, refrigerators, VCRs and the like.

In July of 1987, while he was getting ready to go to work, Mr. Davidson testified that he noticed a bulge in his groin area while taking a shower. Having never previously noticed this, he decided to go to work. He continued to work for two weeks thereafter but noticed a little bit of throbbing after this time.

Mr. Davidson testified on cross examination that he did not engage in any other type of strenuous activity, but that he could not point to a specific date and time when the injury might have occurred. He indicated to Dr. Knight that he felt that the hernia was caused at his work. He did testify that he lifted his son who weighs less than 30 pounds and also testified that he had occasion to lift his 9-year-old stepchild and was sure that he did some lifting in the normal course of household activities.

Pamela Crawford, a claims adjuster with Liberty Mutual Insurance Company, testified that she dealt with Mr. Davidson’s claim. She testified that Mr. Davidson could not pinpoint a specific injury or occurrence as the cause of the hernia and that he surmised that it had occurred on the job. She therefore felt that the claim was not compensable and so recommended.

The testimony of Dr. Mook was introduced by way of deposition. He revealed that Mr. Davidson complained of a lump near an incision where he had received prior surgery for infertility. He diagnosed the lump as a left inguinal hernia and referred him to a surgeon. In the opinion of Dr. Mook, a person could obtain a hernia from lifting heavy objects. He felt that it would be unlikely that in this case a person could obtain a hernia by lifting a 15-month-old child. He deferred to the opinion of Dr. Knight concerning the etiology of adult hernias. He did testify that he did not believe that the prior surgery predisposed Mr. Davidson to the development of the hernia, nor did he feel that the prior surgery increased the likelihood of hernia development. He noted that he recalled that Mr. Davidson informed him that he might have gotten the hernia at work but he did not recall Mr. Davidson complaining of pain.

By deposition, Dr. Frederick Knight, the surgeon who performed surgery on Mr. Davidson’s hernia, testified that the hernia was in no way related to the prior surgery. He testified that Mr. Davidson felt that he injured himself while on the job and did not indicate any other type of activity that may have caused the hernia at the time of his visit with Dr. Knight.

Dr. Knight opined that hernias are caused when some event raises intraabdo-minal pressure. He felt that based upon the history given, the work-related lifting activities would have been sufficient to cause the hernia and issued a letter to Mr. Davidson’s employer to this effect. He felt if the evidence showed that he lifted the child at home that this type of activity may possibly cause a hernia as well.

He noted that Mr. Davidson did not complain of pain when he first noticed the bulge. He didn’t remember Mr. Davidson pinpointing a specific event which may have caused the hernia.

Dr. Knight testified that it is impossible to tell the age of a hernia based on size or appearance. He testified that asymptomatic hernias, those where no pain is felt at the time of the occurrence, exist quite frequently. The patient may not be aware of the bulge either, but a physician would be able to tell.

Dr. Knight opined that the type of hernia that Mr. Davidson experienced is most commonly caused by lifting something which increases abdominal pressure. The symptoms in every person are manifested differently. He felt that he saw just as many hernias occurring as a result of a series of strenuous activities such as lifting heavy objects which were not immediately symptomatic as he saw hernias occurring suddenly where pain is felt immediately.

LSA-R.S. 23:1221(4)(r)(i) provides:

[672]*672§ 1221. Temporary total disability; permanent total disability; supplemental earnings benefits; permanent partial disability; schedule of payments
Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
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(4) Permanent partial disability. In the following cases, compensation shall be solely for anatomical loss of use or amputation and shall be as follows:
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550 So. 2d 669, 1989 La. App. LEXIS 1506, 1989 WL 100403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davidson-v-highland-superstores-inc-lactapp-1989.