Dupuy v. State, Office of Risk Management

450 So. 2d 777, 1984 La. App. LEXIS 8750
CourtLouisiana Court of Appeal
DecidedMay 16, 1984
DocketNo. 83-627
StatusPublished

This text of 450 So. 2d 777 (Dupuy v. State, Office of Risk Management) 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
Dupuy v. State, Office of Risk Management, 450 So. 2d 777, 1984 La. App. LEXIS 8750 (La. Ct. App. 1984).

Opinion

CUTRER, Judge.

This is an appeal in a workmen’s compensation case from a lower court judgment awarding the plaintiff benefits on the basis [778]*778of his total permanent disability.1 The plaintiff, Venix J. Dupuy, was injured during the scope of his employment with the Central Louisiana State Hospital. The defendant is the State of Louisiana, Office of Risk Management (State). Plaintiff filed suit for total permanent disability payments, penalties and attorney’s fees. The trial court awarded total permanent disability benefits, but denied penalties and attorney’s fees. The State appeals. The plaintiff has neither appealed nor answered the defendant’s appeal. We affirm.

The issue presented on appeal is whether the trial court erred in finding that plaintiff had suffered total permanent disability as a result of the job-related accident which caused a back injury.

FACTS2

The plaintiff was employed as a psychiatric aide at the Central Louisiana State Hospital at the time of his injury on August 10, 1981. On that evening he was called upon to separate two fighting patients and, in the process, he was struck on the back and leg with a pipe being swung by one of the patients. Although he completed working the last four hours of his shift, on the next day plaintiff saw his family physician, Dr. Richard Michel. The plaintiff stated that the pain in his back at that time was so great that he could hardly move. According to plaintiff, Dr. Michel3 treated him with medication.

For the next three months, plaintiff continued to see Dr. Michel at least once a week regarding his injuries. Throughout this time, the State paid plaintiff workmen’s compensation benefits. Upon Dr. Michel’s recommendation, plaintiff saw Dr. Douglas Gamburg, an orthopedic surgeon, on November 16, 1981.

Dr. Gamburg concluded that the job-related injury had aggravated a pre-existing arthritic condition involving plaintiff’s lumbar spine. Dr. Gamburg further observed some evidence of nerve root irritation. He prescribed medication for the plaintiff, gave him a back support and told him to return in two weeks if his back had not improved. Plaintiff was involved in an automobile accident before he could get back to Dr. Gamburg. Plaintiff testified that, around June 1982, he attempted to see Dr. Gamburg again for his back problem. Dr. Gamburg refused to see him as this physician preferred not to ⅜0 litigation examinations.

On November 28, 1981, plaintiff was involved in an automobile accident in which he suffered a fractured right knee, fractured ribs and contusions to his chest. As a result of these injuries plaintiff was hospitalized for twenty days. After leaving the hospital plaintiff was required to wear a cast on his right leg for approximately three months. The orthopedic surgeon who treated plaintiff’s auto injuries, Dr. Ray Buerlot, stated that the plaintiff’s limp is permanent. Dr. Buerlot last saw plaintiff on December 7, 1982, at which time the plaintiff walked with the assistance of a cane.

After the automobile accident the State asked Dr. Gamburg for a report on his evaluation of plaintiff as of the examination in November 1981. Dr. Gamburg, by letter of January 26, 1982, stated:

“Based on my findings on the examination of November 16 [1981], I would have thought that he would be able to return to work by this time.”

Apparently Dr. Gamburg was unaware of plaintiff’s car accident. The State, on the basis of this letter, discontinued paying [779]*779workmen’s compensation benefits to the plaintiff on February 1, 1982.

The State contends that disability from the back injury incurred by plaintiff on August 10, 1981, had resolved itself by February 1, 1982. It is contended that disability beyond this time is attributable solely to injuries received in the car accident or the arthritic condition in plaintiffs back, or both. On the other hand, the plaintiff contends that the back condition persisted following the job-related accident and that his back condition was not worsened by the car accident. Plaintiff contends that the back condition rendered him totally and permanently disabled from performing his duties with the State.

The trial court, in its reasons for judgment, resolved the contention in favor of plaintiff, stating as follows:

“Petitioner has proven by a preponderance of the evidence that he is still disabled by having back pain at this time and that his physical problems are attributable to the work related accident in question. Procedural rules are construed liberally in favor of workmen’s compensation claimants; however the burden of proof by a preponderance of the evidence is not relaxed. In this case the testimony as a whole shows that more probably than not an employment accident occurred and that it had a causal relationship to the plaintiffs disability. The plaintiff has carried the burden of persuasion. Also, the plaintiffs evidence shows a causative accident in fact occurred.
“Plaintiff was and remains disabled and his disability is attributable to an accidental lumbosacral sprain suffered on the job.
“Plaintiff is 53 years old and went to the 7th grade in school. He has no special skills except experience from his duties as a Psychiatric Aide. Plaintiffs prior job experience has been as a construction or farm laborer.
“Due to Venix Dupuy’s physical disability, age, lack of education and training, plaintiff is temporarily totally disabled and he should recover benefits during the period of his disability."

This court recognizes the appropriate standard of review of the trial court’s finding of fact to be as follows:

“On appellate review, the trial court’s factual findings of work-connected disability are entitled to great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless clearly wrong. The reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are as reasonable."

Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300, 301 (La.1979).

Under the Louisiana workmen’s compensation scheme, an employee is entitled to benefits only if he is disabled as a result of a personal injury received in an accident arising out of and in the course of his employment. LSA-R.S. 23:1031. In suits to recover these benefits, the plaintiff/employee bears the burden of establishing the causal relationship between the disability and the employment accident by a reasonable preponderance, of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Field v. Winn Dixie Louisiana, Inc., 427 So.2d 616 (La.App. 5th Cir.1983); Antilley v. Sentry Ins. Co., 426 So.2d 1370 (La.App. 3rd Cir.1983).

With these principles in mind we review the record in this regard.

Plaintiff was examined by Dr. Willard Dowell, an orthopedic surgeon, on two occasions, October 12, 1982, and March 4, 1983.

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Related

Prim v. City of Shreveport
297 So. 2d 421 (Supreme Court of Louisiana, 1974)
Field v. Winn Dixie Louisiana, Inc.
427 So. 2d 616 (Louisiana Court of Appeal, 1983)
Antilley v. Sentry Ins. Co.
426 So. 2d 1370 (Louisiana Court of Appeal, 1983)
Crump v. Hartford Acc. and Indem. Co.
367 So. 2d 300 (Supreme Court of Louisiana, 1979)
Deville v. Townsend Bros. Construction Co.
286 So. 2d 367 (Supreme Court of Louisiana, 1973)
Kelly v. Violet Packing Co.
405 So. 2d 542 (Louisiana Court of Appeal, 1981)
Kelly v. Violet Packing Co.
409 So. 2d 670 (Supreme Court of Louisiana, 1982)

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450 So. 2d 777, 1984 La. App. LEXIS 8750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dupuy-v-state-office-of-risk-management-lactapp-1984.