Dunn v. Allen Pulpwood

565 So. 2d 516, 1990 WL 84454
CourtLouisiana Court of Appeal
DecidedJune 20, 1990
Docket21520-CA
StatusPublished
Cited by12 cases

This text of 565 So. 2d 516 (Dunn v. Allen Pulpwood) 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
Dunn v. Allen Pulpwood, 565 So. 2d 516, 1990 WL 84454 (La. Ct. App. 1990).

Opinion

565 So.2d 516 (1990)

J.V. DUNN, Plaintiff-Appellant,
v.
ALLEN PULPWOOD, Bruce Allen and Commercial Union Insurance Company, Defendants-Appellees.

No. 21520-CA.

Court of Appeal of Louisiana, Second Circuit.

June 20, 1990.
Rehearing Denied July 24, 1990.

*517 William H. Baker, Jonesboro, for plaintiff-appellant.

Theus, Grisham, Davis & Leigh by Thomas G. Zentner, Jr., Monroe, for defendants-appellees.

Before MARVIN, NORRIS and HIGHTOWER, JJ.

MARVIN, Judge.

In this w.c. action the claimant appeals a judgment rejecting his demands. He contends that his disability should have been found, or presumed, to have been caused in fact by an accident he sustained on January 2, 1988.

The issue is primarily factual. We affirm.

FACTS

Claimant Dunn was an independent contractor for 20 years, cutting and hauling pulpwood with his saws, trucks, and other equipment.

Beginning in 1981, Dunn had several work-related incidents or accidents. In July 1981, Dunn experienced dizziness and was found to have suffered a heat stroke while working. He did not miss any work. In December 1982, Dunn stepped in a hole, injuring his low back. He underwent a laminectomy at the L5-S1 level. Dunn was paid w.c. benefits for the 1982 accident and later returned to work solely in a supervisory capacity.

On February 2, 1983, Dunn continued to complain of low back pain, for which he *518 was treated for about six weeks. EMG studies and a CT-scan were then "normal." He was diagnosed as having hypertension and a "chronic and recurring trauma to his back, in the form of chronic and recurring lumbosacral muscle strain." He was expected to experience "continued low back discomfort with almost any work."

In 1985, while lifting a heavy object, Dunn suffered a heart attack. Following a lengthy period of recuperation and rehabilitation, Dunn returned to work again in a supervisory capacity. He was paid compensation and thereafter settled his compensation claim.

In 1987, Dunn had four work-related incidents or accidents. In May, he suffered a heat stroke. In September, he sustained a leg injury and low back pain when a stick of wood fell on him. The other incidents in 1987 did not involve his cardiovascular system or his back. After each incident, he was paid compensation benefits and shortly thereafter returned to work supervising his crew.

THE ACCIDENT

On January 2, 1988, Dunn (then age 58) and two crew members, James Lewis and Reg Singleton, were repairing the boom of a front-end loader. Dunn and Lewis were lifting the boom about 3-4 feet to allow Singleton to replace the boom pin when Dunn became dizzy and nauseated. He reported these symptoms to his co-workers but assisted them in completing the boom repair before they left the woods.

Worried about a heart attack, Dunn went to his physician, Dr. Rel Gray, who hospitalized him. The next day, Dunn telephoned his employer to report the accident and his symptoms.

After two days, Dunn was discharged by Dr. Gray, who diagnosed him as having pylorospasm (tightening of the muscles at the stomach outlet) and gastroesophageal reflux (reflux of acid into his chest and esophagus) and noted Dunn's past history of angina and hypertrophic subaortic stenosis. Finding these things and his pre-existing heart condition were causing Dunn's complaints, Dr. Gray advised him to continue his regular heart and blood pressure medications and return in two weeks for further examination.

Still concerned about his heart condition, Dunn then drove himself from Ruston to Houston, where he sought and underwent further cardiac testing. The Houston doctors determined that Dunn had an 80 percent blockage of his coronary arteries.

Dunn drove home from Houston after a few days and reported to Dr. Gray on January 26 the results of his Houston tests. He was then complaining only of "gas pains," which Dr. Gray treated with medication.

Dunn saw an attorney who referred him to Dr. Raymond Dennie, a general practitioner, on February 2. He then for the first time complained of low back pain radiating into both legs. Dunn discussed with Dr. Dennie his recent heart problems and diagnosis and his January 2 accident. He advised Dr. Dennie that his back pain began two weeks after the accident. He also informed Dr. Dennie of his 1982 laminectomy at L5-S1, stating that his 1988 pain was different from his 1982 pain which he described as then being only on the right side into his right leg.

Dr. Dennie noted palpable tenderness over both the right and left posterior superior iliac, with mild to moderate spasm. His diagnosis was acute lumbosacral sprain. He treated Dunn with medication and a TENS unit. He opined that Dunn had not sustained a recurrent ruptured disc, but that Dunn could not then return to work.

Dunn returned to Dr. Dennie on February 17, still complaining of low back pain and reporting that he was unable to return to his former employment. Dunn's physical examination this day was noted as "relatively negative." Because of Dunn's continued complaints and x-rays revealing a degenerative disc and a narrowing of the L5-S1 disc space, Dr. Dennie recommended that Dunn have an MRI test to aid his diagnosis of Dunn's back problem. This test was not approved by the w.c. insurer and was never performed.

*519 On March 3, 1988, Dunn went to the Lincoln General Hospital emergency room, complaining of both chest and low back pain. He was admitted to the hospital. The following day, Dunn was again seen by Dr. Gray. Dr. Gray's physical examination revealed palpable tenderness at L5-S1 level and junctions bilaterally, worse on the left side. His diagnosis was a lumbosacral strain.

Dr. Gray consulted with several other physicians. Dr. J.M. Smith conducted new EMG studies and a physical examination. Dunn's EMG revealed some evidence of S1 nerve pathology, electrical dysfunction of unknown cause within the S1 nerve and denervation and nerve root impingement at the L5-S1 level. On physical examination, Dr. Smith found tenderness at the left sacro iliac joint, though he noted that Dunn did not appear to be in "acute distress."

A CT scan indicated Dunn had a new disc protrusion at the L4-L5 disc space posteriorly and to the right at a different location (higher) than the 1982 L5-S1 surgery and which extended to the upper margin of the primary L5 right laminectomy. A laminectomy defect at the L5-S1 level was also noted. The radiologist said his findings "does not seem to correlate with [Dunn's] history [of] both legs being painful."

Dr. Gray also consulted with Dr. Ben Haley, who gave Dunn an epidural injection of cortisone and an anesthetic for pain relief on the left at the L3-L4 level in an attempt to reduce tissue swelling, decrease pressure on the sciatic nerve and prevent potential future surgery. Dunn experienced only temporary relief.

Following his discharge from the hospital, Dunn consulted with and was treated by Drs. Gray and Dennie. During visits with Dr. Gray on April 23 and on June 2, Dunn had no back complaints. On June 2 Dunn's low back problems, according to Dr. Gray, were secondary to his primary complaint of prostatitis.

Dunn's last visit with Dr. Dennie was on June 20 for a complete examination. Dunn then complained of low back pain, radiating only into his right hip and leg, and of weakness in his right leg. Noting the positive EMG studies and the CT-scan results from Dunn's March hospitalization, Dr. Dennie again suggested an MRI test and opined that Dunn was still disabled.

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Bluebook (online)
565 So. 2d 516, 1990 WL 84454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-allen-pulpwood-lactapp-1990.