Devillier v. N.L. Industries, Inc.

445 So. 2d 1275, 1984 La. App. LEXIS 8030
CourtLouisiana Court of Appeal
DecidedFebruary 1, 1984
DocketNo. 83-301
StatusPublished

This text of 445 So. 2d 1275 (Devillier v. N.L. Industries, 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
Devillier v. N.L. Industries, Inc., 445 So. 2d 1275, 1984 La. App. LEXIS 8030 (La. Ct. App. 1984).

Opinion

CUTRER, Judge.

Robert Devillier, Sr., brought suit to recover workmen’s compensation resulting from a back injury incurred while he was roughnecking on a rig operated by N.L. Industries, Inc. From a trial judgment awarding plaintiff disability “until further order” 1 of the court, attorney’s fees and penalties, defendant appeals.

The issues presented on appeal are as follow:

(1) Whether the trial court erred in finding that plaintiff’s injury occurred in the course and scope of his employment with defendant;
(2) Whether the trial court erred in its conclusion that plaintiff was disabled and entitled to compensation benefits; and
(3) Whether the trial court erred in assessing attorney’s fees and penalties against defendant for its decision to discontinue compensation benefits to plaintiff.

For the reasons which follow, we affirm in part and reverse in part.

The plaintiff was working as a roughneck for the defendant in July 1981. Defendant had employed plaintiff on an intermittent basis for approximately three years; he had, however, worked continuously with defendant for approximately one year prior to his injury. On or about Saturday, July 18,1981, plaintiff was working on a rig near Lake Charles, Louisiana. While manually pulling a heavy section of pipe from the pipe rack up into the Vee door, plaintiff began experiencing pain in the lower left section of his back and leg. Although he completed working his twelve hour shift, the plaintiff complained of his [1277]*1277pain that evening to the tool pusher, John Wyble. Plaintiff also worked the next day, Sunday, in pain, but on Monday, due to an increase in pain, he could not continue working. Wyble took the plaintiff to the Lake Charles Memorial Hospital, where the emergency room physician diagnosed plaintiffs injury as being an “acute sacroiliac strain” and gave plaintiff prescriptions for medication.

Plaintiff worked a tour of seven days on and seven days off, and his shift ended on Monday, so he returned to his home in Opelousas after the hospital visit. The following Monday, one day prior to his scheduled return to work, the plaintiff went to the Opelousas General Hospital to be examined before returning to his manual labor. There he was diagnosed as having sciatica and advised to return to work if he felt that he could.2 Plaintiff returned to his job on Tuesday and worked the evening shift in pain. This was plaintiffs last day to work for defendant. Due to the pain in his back, plaintiff again went to the hospital in Lake Charles where he was advised to see a specialist. The specialist, Dr. David Drez, Jr., examined plaintiff the same day and gave a diagnosis of lumbar muscular strain. Dr. Drez referred plaintiff to Dr. Frazer Gaar, an orthopedic surgeon in Opelousas, and an appointment was made for Monday, August 3rd. Plaintiff resided near Opelousas.

In the meantime, the plaintiff went to see Dr. Seldon Deshotel on July 30th. Plaintiff was given medication for his pain by Dr. Deshotel who called Dr. Gaar and persuaded him to see plaintiff the following day. Dr. Gaar examined the plaintiff on July 31st and admitted him into the local hospital for treatment. Against Dr. Gaar’s advice, plaintiff left the hospital after three days to return home.

On August 10, 1981, Dr. Gaar diagnosed plaintiff as having “symptomatic spondylo-lysis [defective vertebrae] with lumbar strain.” In order to better determine the extent of plaintiffs injury, Dr. Gaar ordered that tomograms be taken of the plaintiffs lower back. The tomograms were twice attempted between August 6th and 24th, but they were not satisfactorily completed because, according to the plaintiffs testimony at trial, due to pain, he could not remain in one position long enough for the tomogram tests to be completed.

After bi-weekly trips to Dr. Gaar, and the receipt of therapy, plaintiff was discharged by Dr. Gaar on September 9, 1981. At that time Dr. Gaar felt that the initial lumbar strain was resolved, although the spondylolysis defect remained. The plaintiff was still complaining of pain and weakness in his left leg, and he did not feel he could return to the manual labor required of a roughneck. Dr. Gaar stated that this might “very well be true,” and he suggested that plaintiff “seek a lighter type occupation.”

After plaintiff was discharged from Dr. Gaar’s care, defendant asked him if he wished to see another physician. The plaintiff indicated that he did and, on September 29, 1981, was sent to Dr. Fred Webre, an orthopedist who limits his practice to evaluations and recommendations. However, when Dr. Webre refused to reveal his examinations’s findings to plaintiff, plaintiff employed an attorney to assist him.

Dr. Webre felt that plaintiff had fully recovered from his injury and could return to work. He also felt that, if plaintiff returned to his roughnecking, the latter might suffer low back pain, but not of an “incapacitating nature.” Dr. Webre stated that he could not explain plaintiff’s back pain unless it could be plaintiff’s overweight as he was 5 feet 6 inches tall and weighed 229 pounds.

On October 7th, plaintiff was notified by defendant that, pursuant to Dr. Gaar’s report, they would no longer pay his compensation. Accordingly, no further compensation was paid plaintiff.

[1278]*1278On October 12, 1981, plaintiff was examined by Dr. E.K. Ventre, a general practitioner in Opelousas. Dr. Ventre opined that the plaintiff had “strongly suggestive evidence of injury to the lumbar spine and possible nerve root involvement.” He explained that this meant a disc injury. He was of the opinion that the plaintiff could not return to his duties. He recommended further diagnostic studies be performed.

Plaintiff next sought treatment from Dr. Stuart Phillips, an orthopedic surgeon in New Orleans. Dr. Phillips first examined plaintiff on October 29, 1981. It was Dr. Phillips opinion that plaintiff, in addition to spondylolisthesis, had evidence of a nerve injury at a higher level, possibly a ruptured disc at the L3-4 level, since this level supplied the quadriceps muscle which appeared inactive because of the atrophy detected. Dr. Phillips stated that, in order to insure the exact cause of plaintiffs problems, a complete diagnostic workup should be conducted, including tomograms and myelograms; he further said that the patient was totally disabled from performing manual labor.

Plaintiff was seen again on December 9, 1981, and May 20, 1982; by the latter date Dr. Phillips observed that the plaintiffs symptoms had increased. He recommended that a CAT scan or myelogram be performed. Dr. Phillips stated that, as of May 20, 1982, plaintiff was totally disabled from occupations requiring “repetitive lifting, bending and stooping.”

Between plaintiffs visits to Dr. Phillips, he was seen once more on February 19, 1982 by Dr. Webre. Noting the plaintiffs continued complaints of pain, Dr. Webre’s report was consistent with his September 29th examination, except he noted plaintiffs diminished sensation on the back of his left foot. Observing that the plaintiff did have some mechanical problem but detecting no evidence of nerve root impingement in the lower extremities, Dr. Webre concluded that plaintiff had “no objective evidence of impairment to function of his back that would prevent him from returning to work.”

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445 So. 2d 1275, 1984 La. App. LEXIS 8030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devillier-v-nl-industries-inc-lactapp-1984.