Dunman v. Kroger Co.

333 So. 2d 427, 1976 La. App. LEXIS 4854
CourtLouisiana Court of Appeal
DecidedMay 26, 1976
DocketNo. 5462
StatusPublished
Cited by4 cases

This text of 333 So. 2d 427 (Dunman v. Kroger 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
Dunman v. Kroger Co., 333 So. 2d 427, 1976 La. App. LEXIS 4854 (La. Ct. App. 1976).

Opinion

BERTRAND, Judge.

William Dunman brought suit against The Kroger Company, his former employer, and its insurer, Employers National Insurance Company, for total and permanent disability workmen’s compensation benefits. The alleged disability arose out of an accident which occurred on September 24, 1973. Dunman appeals the trial court decision rendered in favor of defendants. We affirm the trial court’s decision.

Dunman worked as a truck driver for Kroger for some ten years. On September 24, 1973, while in the process of delivering goods for Kroger, Dunman stopped his truck to inspect the refrigeration system. He climbed up on his truck, slipped, and jumped to the ground. Dunman landed on his feet, which caused an injury to • his back. He was taken to a Dr. Drez for treatment, and was off wofk for approximately two (2) weeks. Dr. Drez, an orthopedist, diagnosed Dunman’s injury as a back sprain and discharged him on October 11, 1973. On October IS, 1973, Dr. Drez reported to Kroger and its insurer that Dunman was capable of doing the same work he had performed before the injury and Dunman had sustained no permanent injury. Dunman was discharged as cured on October 11, 1973.

Dunman was paid compensation benefits for the two weeks that he was incapacitated, and he returned to work for Kroger for an additional nine (9) months.

In June of 1974, Dunman quit Kroger, purchased his own truck, and began working for Dixie Transport Company as a truck driver, using his own truck and Dixie’s trailer. The work involved with Dixie did not include the lifting of heavy items for unloading that had been a regular part of Dunman’s job at Kroger. The work at Kroger was strenuous work for one man, but Dunman was entitled to assistance from store personnel. The income derived from working for Dixie was equal to or in excess of the income Dunman received from Kroger.

Several days before the trial, Dunman quit working for Dixie, bought his own refrigerated produce trailer, and began work[429]*429ing as an independent. Dunman hasn’t yet hauled with his new van. His expected income for this new work will be equal to or slightly in excess of that which he was receiving from Kroger,

Just prior to trial, Dunman, at his attorney’s request, consulted another orthopedist, Dr. George P. Schneider. This was the first time since his initial treatment with Dr. Drez that Dunman had gone to a doctor for his hack ailment. At trial the evidence disclosed that Dunman gave false information to Dr. Schneider with regard to the length of time he received treatment from Dr. Drez and the amount of time that he continued working for Kroger after the accident. Dr. Schneider testified that the history of an ailment related to him by a patient was an important diagnostic tool, and that if a false history had been given, such could change his diagnosis. Dr. Schneider further testified that subjective testing, i. e., reactions to pain by the patient, were an important part of his diagnosis that Dunman’s injury was caused by the accident in question.

Both doctors agreed that Dunman has a congenital defect in his back, a spondylol-isthesis. Dunman contends that the accident on September 24, 1973, rendered his condition symptomatic. He further alleges that as a result he is in constant pain, requires corrective surgery, and is unable to do essential work as a truck driver since he is no longer able to do any significant lifting without substantial pain. Therefore, Dunman contends that he is totally and permanently disabled within the meaning of the law.

In ruling in favor of the defendants, the trial judge stated:

“The evidence most damaging to plaintiff’s position is as follows.
1)The testimony of Dr. Drez, the treating physician, who saw plaintiff from September 25, 1973, the day following the accident, through October 11, 1973, when plaintiff was released to return to full work. He was of the opinion that plaintiff had suffered only a muscular strain of his lumbar muscles and that the injury had not caused an aggravation of the preexisting bony condition or any nerve damage because if it had, his back complaints would not have improved to the point that he was virtually asymptomatic by October 11, 1973. While acknowledging that if it were true that plaintiff has not had a pain-free day since the accident, he would agree that the injury rendered the spondylolisthesis symptomatic, but the medical probability is that plaintiff’s present complaints are not caused by the accident.
2) The fact that plaintiff did not consult a physician from October 11, 1973, until he was examined at his attorney’s request by Dr. Schneider ten days before the trial.
3) The testimony of Leroy Landrum, M. C. House, Paul Moreau, and Rodney Hoots, all friends of plaintiff, who together have seen plaintiff many times while working since the accident, and who saw no evidence and heard no complaints from plaintiff or any disability.
4) The fact that plaintiff has worked continuously as a truck driver since October, 1973, and has invested a large sum of money in the purchase of a truck and trailer.
5) Little, if any, evidence to support the conclusion that men engaged in the general field of truck driving, as distinguished from the work required of Kroger drivers, are required to do heavy lifting or heavy manual work.
6) Plaintiff’s answer 'went into business for myself’ with no mention of difficulty in doing the work, in answer to defendants’ interrogatory asking him for his reason in quitting work at Kroger.
7) Plaintiff’s application for employment submitted to Dixie, and in particular, his statement in the application that he was [430]*430physically capable of heavy manual work. His explanation of the reason for answering this question as he did was unsatisfactory. In fact, his response to the last question asked him at the trial, to the effect that he knew that he could do anything Dixie required of him as being the reason he filled out the application like he did, not only casts doubt on the degree of pain of which he complains, but is certainly an acknowledgment that he can work generally at least as a truck driver without substantial pain, even if not for Kroger.
Considering all of the evidence, plaintiff has failed to bear his burden of proving the essential elements of his case.
I cannot say that he has proved (1) that he suffers substantial pain or if he does it is related to the accident, and (2) that a substantial portion of the work required of men engaged in the general field of truck driving consists of more strenuous work than the work he admits he can perform without substantial pain.”

It is well settled that the decision of a trial judge, who has weighed and determined the amount of credibility to be given to each witness, is entitled to great weight and should not be overturned in the' absence of manifest error. The reason for this principle of review “is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koering Company, 283 So.2d 716 (La.1973). We find no manifest error in the trial judge’s conclusions.

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Related

Juneau v. Tulane Indus. Laundry
358 So. 2d 347 (Louisiana Court of Appeal, 1978)
Johnson v. Ascension Parish School Board
342 So. 2d 1139 (Louisiana Court of Appeal, 1977)
Dunman v. Kroger Co.
338 So. 2d 1154 (Supreme Court of Louisiana, 1976)

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Bluebook (online)
333 So. 2d 427, 1976 La. App. LEXIS 4854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunman-v-kroger-co-lactapp-1976.