Doane v. McElhiney Lithographing Co.

130 So. 2d 781, 1961 La. App. LEXIS 1146
CourtLouisiana Court of Appeal
DecidedMay 15, 1961
DocketNo. 164
StatusPublished
Cited by3 cases

This text of 130 So. 2d 781 (Doane v. McElhiney Lithographing Co.) 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
Doane v. McElhiney Lithographing Co., 130 So. 2d 781, 1961 La. App. LEXIS 1146 (La. Ct. App. 1961).

Opinion

REGAN, Judge.

Plaintiff, Mrs. Alvera Doane Lopez, Sr., employed as a post press operator, instituted this suit against the defendants, McElhiney Lithographing- Company and its insurer, Employers Liability Assurance Corporation, Ltd., endeavoring • to recover ' workmen’s compensation at the rate of $35 pér week [782]*782for a period of 400 weeks, together with medical expenses, attorney’s fees and penalties, -for total and permanent disability incurred as of April 13, 1959, by virtue of the aggravation of a pre-existing back ailment.

The defendants answered and admitted the employment of the plaintiff, but denied that an accident occurred; or if one did occur, that the plaintiff did not incur any disability as a result thereof.

From a judgment awarding plaintiff compensation for a total of 29 weeks 1 at the rate of $35 per week, medical expenses in the amount of $812.50,2 penalties on past due compensation, and $250 attorney’s fees, the plaintiff has prosecuted this appeal. The defendants have answered the appeal requesting that plaintiff’s suit be dismissed; and in the alternative, that the judgment be amended by denying to plaintiff the right to recover penalties or attorney’s fees.

The record reveals that the plaintiff, age 35, was married and the mother of two children. She had been employed as a post press operator by the defendant printing "company from November, 1953, until she ' voluntarily terminated her employment on April 28, 1959.

.The nature of her work consisted of inserting .a small imprinting plate in an automatic printing machine; placing envelopes on the feeding table; removing them after they were printed; and returning them, to their respective cartons. In the course of her work, it was necessary that she bend and stoop. When the stock boy 'was not available to supply her with the cartons of envelopes, which weighed between 30 and 35 pounds, plaintiff procured them herself. She related that such was the situation on April 13, 1959, when she injured her back. She testified that she had complained of her backache to several co-employees, but she did not inform her superior thereof that day,3 but completed her work even though she was in pain.

On her way to work the next morning, which was April 14th, she said that she saw Miss Florence Eiermann, a co-owner of the defendant printing company, “on the bus,” and at that time informed Miss Eiermann of her back injury sustained the preceding day.

At the trial, Miss Eiermann, Emile Sanchez, also a co-owner, and three co-employees of the plaintiff testified. In essence they stated that the plaintiff had made intermittent complaints about her backache since she was first employed but that she had never attributed her illness to the nature of her work. They could not say that the plaintiff had suffered any type of “accident” on April 13, 1959, and they did not remember whether she had complained more about her backache as a result of what had occurred on that day than any other day since, to reiterate, she chronically complained thereof. Miss Eiermann specifically denied any recollection of plaintiff’s conversation with her on April 14th, relative to aggravating her back ailment on April 13th.

On April 28, 1959, following an exchange of unpleasant words between the plaintiff and Sanchez, she “quit”, and asserted in explanation thereof that she told Miss Eier-mann that she was still suffering with her back as a result of work performed on April 13th, and that she would not, in addition to this ailment, subject herself to further in-[783]*783suits. Miss Eierniann denied that plaintiff had even discussed her back ailment on this occasion.

On May 4, 1959, plaintiff related that she visited the offices of the Louisiana State Employment Service in an effort to obtain less tedious work and offered to an employee thereof as a reason for leaving the defendant’s employ, “Quit- — insulted by boss.”

On May 6, 1959, while at home engaged in dampening clothes in preparation for ironing, she sneezed and incurred a severe back pain which radiated into her left leg.

On May 9, 1959, she consulted Dr. Rufus H. Alldredge, an orthopedic surgeon, who diagnosed her condition as a “degenerating lumbosacro disc nerve root irritation, and compression lumbarsacro back sciatica.” She was hospitalized from May 9th to May 25, 1959, and responded favorably to conservative treatment which had been prescribed for this condition. She remained under the care of Dr. Alldredge until November 30, 1959, when she was discharged as being fully able to resume her former employment.

During the time that plaintiff was being treated by Dr. Alldredge, and unknown to him, she consulted Dr. Bryon N. Unkauf, also an orthopedic surgeon, on September 28, 1959. He suggested that a myelogram be performed on November 23, 1959, under the supervision of Dr. Arthur R. Payzant, a radiologist. As a result thereof, the diagnosis of a ruptured intervertebral disc was made, which was agreed to by Dr. Alldredge after he had been informed thereof and had an opportunity to review their findings.

All three doctors appeared on behalf of the plaintiff. They related, in substance, that they were unable to state with any reasonable certainty the cause or -the- date of the inception of the herniated disc. Drs.-Alldredge and Unkauf, the treating -physicians, pertinently observed, however, that a sudden sneeze could cause a dormant herniation to manifest itself, and in effect it was their opinion that the aggravation of plaintiff’s back ailment was probably not job-related; although they did concede that stooping, bending, and lifting are activities that could aggravate an intervertebral disc.

The plaintiff admits that she possesses a history of back ailments4, and acknowledges that the “accident” which occurred on April 13th was not a single dramatic incident, but rather, the “accident” was a cumulation of the day’s tedious activities that aggravated a pre-existing condition of her back, and that this aggravation provided the requisite strain to herniate the dormant disc.

The defendants, on the other hand, insist that no accident occurred on April 13th, and that there was no aggravation of the pre-existing illness caused by the nature of her employment; furthermore, they point out that the precipitating cause of the herniated disc was the sneeze plaintiff experienced at her home eight days after the termination of her employment, that it was consequently non-employment related, and therefore plaintiff should be denied recovery.

Predicated upon the foregoing facts and the contention of the plaintiff, the trial judge expressed the opinion that the: “* * * plaintiff has a degenerating L-5 disc; that this condition is of long standing, and is not the result of any accident or injury suffered while plaintiff was at work for McElhiney (the defendant).

“Considering all of the evidence, I must conclude that plaintiff’s work temporarily [784]*784aggravated her back condition, and that her sneezing accident of May 6, 1959, at home, further aggravated her condition; * *

“There is no dispute that the aggravation of a pre-existing injury is compensable under the Compensation Law, but recovery should not continue beyond the termination of such aggravation, especially when the fact of aggravation is suspicious and could very well have been caused on other occasions not work-connected.

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130 So. 2d 781, 1961 La. App. LEXIS 1146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doane-v-mcelhiney-lithographing-co-lactapp-1961.