Dominick v. CNA Ins. Co.

497 So. 2d 758, 1986 La. App. LEXIS 8113
CourtLouisiana Court of Appeal
DecidedNovember 5, 1986
Docket85-1240
StatusPublished
Cited by17 cases

This text of 497 So. 2d 758 (Dominick v. CNA Ins. 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
Dominick v. CNA Ins. Co., 497 So. 2d 758, 1986 La. App. LEXIS 8113 (La. Ct. App. 1986).

Opinion

497 So.2d 758 (1986)

Willie DOMINICK, Plaintiff-Appellee,
v.
CNA INSURANCE COMPANY, et al., Defendants-Appellants.

No. 85-1240.

Court of Appeal of Louisiana, Third Circuit.

November 5, 1986.
Rehearing Denied December 9, 1986.
Writ Denied February 6, 1987.

*759 Voorhies and Labbe, John Wolf, III, Lafayette, for defendants-appellants.

Donald Mayeux, Guillory, McGee and Mayeux, Eunice, for plaintiff-appellee.

Before DOMENGEAUX, YELVERTON and KNOLL, JJ.

YELVERTON, Judge.

Willie Dominick brought this worker's compensation suit under the former compensation law against his employer, Samuel Porter Home Builders and their compensation insurer, CNA Insurance Company, seeking total and permanent disability benefits and statutory penalties and attorney's fees. The trial court determined that the claimant suffered from a disabling mental condition causally connected to a work-related accident, and found the plaintiff totally disabled. No statutory penalties or attorney's fees were awarded. The defendants perfected this suspensive appeal.

The sole issue on appeal is whether the trial court erred in determining the plaintiff to be totally disabled. We affirm.

The plaintiff was employed by Samuel Porter Home Builders as a carpenter's helper. On January 14, 1983, he was injured when a co-worker fell from a ladder and either the worker or the ladder landed across plaintiff's right shoulder. The accident resulted in a non-displaced fracture at the C-2 level. The parties stipulated that Dominick was injured in the course and scope of his employment. Plaintiff received weekly compensation benefits of $133.00, until benefits were terminated on March 19, 1984. He received $7,999.80 in compensation benefits during this period and $10,530.22 in medical benefits. He brought suit claiming total and permanent disability.

At the trial on the merits the plaintiff and his wife testified, but all other testimony was submitted by deposition.

The expert medical evidence relied on by the plaintiff consisted of the depositions of Dr. Emile Riley and Dr. Philip Landry.

Dr. Riley, a general surgeon, initially examined plaintiff on March 14, 1984. Plaintiff was complaining of severe pain in his right shoulder which allegedly caused a fainting episode. The examination revealed tenderness over the right brachial plexas area; severe wasting of the right pectoral muscle; and a winged scapula. These findings were consistent with the history of injury given by the plaintiff. A winged scapula could result from trauma to the muscle or a nerve. On March 30, 1984, atrophy of the right pectoral muscle and winging of the scapula were again noted and the plaintiff was prescribed physical therapy. On May 3, 1984, the doctor noted muscle spasms and parascapular pain. An appointment was made for plaintiff to see a neurologist. On plaintiff's seventh visit (October 4, 1984) the doctor noted pain and tenderness of the left parascapula and the plaintiff discussed symptoms of insomnia and anorexia. The doctor felt the pain was caused by fibromyositis or myofascitis. He opined that the plaintiff was probably suffering from nerve injury with some aberration of the musculature functions and from an inflammatory *760 type process secondary to trauma. The doctor did not think that plaintiff could perform heavy manual labor at the time of plaintiff's last examination.

Dr. Philip Landry, a psychiatrist, testified that he examined the plaintiff on January 14, 1985. The examination consisted of an hour-long interview with the plaintiff and a conversation with the plaintiff's brother. The plaintiff related that he had suffered from memory lapses, impotence at times, irritability and symptoms of anxiety since the accident. The plaintiff's general physical appearance had also deteriorated since the accident. The doctor observed that the plaintiff appeared depressed and withdrawn. The plaintiff and his brother related to the doctor that the plaintiff had no significant depression prior to the accident. The patient related that he has been psychologically disturbed since the accident. Since the accident plaintiff has suffered from aches and pains that were not able to be diagnosed. The doctor opined that these pains were emotional in nature caused by a traumatic experience, the accident. He diagnosed the plaintiff as suffering from a reactive depression resulting from the accident. The doctor was fairly certain that his diagnosis was accurate and felt that the plaintiff had been truthful with him. He stated that plaintiff's symptoms of mood disorder, bad headaches, his fainting episodes, his aches and pains, his impotence and probably his scoliosis were all caused by his depression and were psychiatric in nature. He opined that plaintiff's depressive illness which occurred in reaction to the accident would take approximately six months to a year of intensive psychiatric treatment to cure. The doctor felt plaintiff was disabled from working at the time of the examination.

The defendants introduced into evidence the depositions of four doctors and a physical therapist.

The deposition of Dr. Lionel Mayer, an orthopedic surgeon, revealed that he originally examined the plaintiff on October 19, 1983, at the request of plaintiff's attorney. The plaintiff complained of barely being able to walk, of fainting periods, dizzy spells, and of pain in his back, neck and ribcage. The plaintiff had multiple subjective complaints but the doctor only found one objective finding: a moderate tilt to the left side. He believed that the plaintiff had developed the habit of tilting to the left side, and that this habit was either psychological or emotional. Dr. Mayer's examination revealed no orthopaedic physical impairment. However, he felt the plaintiff should consider a psychological evaluation. His records revealed no evidence of a winged scapula, and no muscle atrophy in the upper extremities. He opined that from an orthopaedic standpoint, plaintiff could return to work.

Dr. James Rivet, a neurologist, testified that he initially examined plaintiff at the emergency room on April 7, 1983. He had been referred by Dr. Bertrand due to a questionable fracture at the C-2 level. The X rays did reveal a non-displaced fracture. The plaintiff was prescribed a collar. On May 2, 1983, plaintiff complained of pain in both shoulders. He was given a neurological examination which was normal. The fracture had healed and plaintiff was advised to discontinue the collar. On May 23, 1983, plaintiff complained of numbness in his left arm. The examination did reveal a muscle spasm in his back which was consistent with the fracture. A cervical myelogram was performed on May 25; the results were normal. Nerve conduction tests and an EMG were run; the results were also normal. The doctor found no neurological condition which would prevent the plaintiff from returning to work.

Dr. Norman Anseman, Jr., a psychiatrist, examined the plaintiff on May 28, 1983. The patient showed signs of functional overlay (a response to testing that does not fit an organic problem). He opined that the functional overlay may be secondary to depression or hysteria, or an attempt by the plaintiff to deceive for monetary gain. The doctor stated there was no way for him to know. The doctor found no organic problems wrong with the patient and felt he should go back to work. He found no evidence of winged scapula or atrophy of the muscles. He did state that atrophy to *761 the pectoralis muscle could be caused by disuse or nerve injury.

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Bluebook (online)
497 So. 2d 758, 1986 La. App. LEXIS 8113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dominick-v-cna-ins-co-lactapp-1986.