Estopinal v. National Tea Co.

545 So. 2d 1133, 1989 La. App. LEXIS 1183, 1989 WL 62497
CourtLouisiana Court of Appeal
DecidedJune 7, 1989
DocketNo. 89-CA-44
StatusPublished
Cited by1 cases

This text of 545 So. 2d 1133 (Estopinal v. National Tea 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
Estopinal v. National Tea Co., 545 So. 2d 1133, 1989 La. App. LEXIS 1183, 1989 WL 62497 (La. Ct. App. 1989).

Opinion

DUFRESNE, Judge.

Defendant, National Tea Company, appeals from a decision in favor of the plaintiff, Robert Estopinal, granting temporary total worker’s compensation benefits. The original judgment dated October 27, 1988, original judgment awarded worker’s compensation benefits and all medical costs associated with Estopinal’s injury. However, in an “Amending and Supplemental Judgment”, dated November 10, 1988, the trial court added “... legal interest on the amount of-compensation benefits due and owing him (Estopinal) from the date said benefits were terminated until paid, as well as all costs of these proceedings.... ” From these judgments National has sus-pensively appealed.

As noted in the record, the second (amending) judgment substantially altered the original judgment. Pursuant to Louisiana Code of Civil Procedure Article 1951:

“A final judgment may be amended by the trial court at any time with or without notice, on its own motion or motion of any party:
(1) To alter the phraseology of the judgment, but not the substance, (our emphasis); or
(2) To correct errors of calculation.”

[1135]*1135It follows, that in absence of granting a motion for new trial, the trial court lacked jurisdiction to alter the original judgment, which granted substantive changes in favor of Estopinal. Mellon Financial Services Corp. v. Cassreino, 499 So.2d 1160 (La.App. 5th Cir.1986).

Accordingly, we find the trial court’s “Amending and Supplemental Judgment” without judicial effect and limit this appeal to a review of the original judgment.

Robert Estopinal, a 47 year old male, alleges an on-the-job injury while working as a pressman at National’s printing department. This department supplies all of the printed advertisements to National’s stores, commonly known as “National” or “Canal Villere” located throughout the New Orleans metropolitan area.

As pressman, Estopinal’s duties required him to operate different printing presses. He was responsible for loading and unloading large amounts of paper, setting and adjusting the printing presses, as well as the actual printing of cardboard and paper advertisements. The operation of the printing presses placed certain physical demands upon Estopinal.

There was repetitive bending, stooping, lifting and carrying of heavy boxes of paper and cardboard. Many of the singular printing assignments routinely performed by Estopinal consisted of printing 10,000 to 15,000 copies and often under strict deadlines.

On March 17, 1987, Estopinal was assisting in the repair of a printing press which had jammed during operation. While bending over and pulling on one of the belts located within the press, he felt a pulling sensation in his back and immediately began to experience back pain. National requested that Estopinal be seen by Dr. Edna Doyle for evaluation and treatment. Doyle reported that Estopinal was disabled from working as a pressman as of March 17, 1987. Approximately IOV2 months later, on February 4, 1988, Dr. Doyle issued a medical report to National advising that Estopi-nal could return to work, provided he refrain from performing any repetitive bending, stooping or heavy lifting. Additionally, National sent Estopinal to be examined by Dr. Harold Stokes (an orthopedic surgeon). Dr. Stokes indicated that Estopinal could return to work if he did not perform repetitive bending, stooping, or lifting objects over 35 pounds.

Estopinal returned to work on February 1, 1988, and began operating a printing press for approximately 6 hours until, allegedly, he began experiencing low back pain and was physically unable to perform his employment duties. Estopinal was examined by Dr. Doyle and Dr. Steiner, an associate orthopedic surgeon with Dr. Stokes, who prescribed 2 days rest from work and then to return to National February 4, 1988, limited to only 4 hours of work per day for the first 2 weeks and then return full time. However, his full-time employment should be limited to the extent that he not perform repetitive bending, stooping or lifting in excess of 35 pounds.

When Estopinal returned to National on February 8, 1988, with medical instructions of limited time and physical restrictions, he was advised by his supervisor, Bob Louvi-ere, that he would not be able to perform his duties under these restraints. Later that day he was informed by Michael Strong (Louviere’s supervisor) to return home.

On February 1, 1988, National terminated Estopinal’s worker compensation benefits. He filed suit after being rejected relief through the administrative process and seeks reinstatement of his temporary total disability payments from February 1, 1988 until completion of his medical treatment when he will be able to return to his former regular job duties as pressman or physically able to engage in some other occupation. Furthermore, he seeks payment of medical expenses incurred as the result of treatment received from Dr. Marilyn Panger (chiropractor) and Dr. Charles Billings (orthopedic surgeon).

After trial of this matter, the court granted judgment in favor of Estopinal reinstating his temporary total worker compensation benefits and all medical costs associated with his injury. From this judgment National has suspensively appealed.

[1136]*1136Estopinal alleges that he sustained a work related accident on March 17, 1987, and re-injured his lumbar spine on February 1, 1988, and as a result he is physically incapable of returning to work as a pressman performing his regular employment responsibilities. National asserts that Es-topinal did not sustain a job accident on February 1, 1988, and if assuming so, is presently capable of returning to his work as a pressman.

The fact that Estopinal suffered a low back injury on March 17, 1987, and was medically advised to refrain from repetitive bending, stooping and lifting objects over 35 pounds is uncontroverted. Disputed is the fact that Estopinal is presently disabled from returning to work at National as a pressman or other gainful employment as a result of his lumbar injury. National claims that Estopinal work related duties do not require him to perform repeated bending, stooping or lifting heavy objects (things over 35 pounds). In support of its contention the parties produced a film of the job duties of a pressman to demonstrate the actual body mechanics and physical requirements necessary to operate National’s printing presses. This film was shown to all four medical expert witnesses, Edna Doyle, M.D.; Harold Stokes, M.D.; Charles Billings, M.D.; and Marilyn Pan-ger, D.C.

The job duties of a pressman require certain physical capabilities, and significant limitations, such as bending, stooping or lifting objects in excess of 35 pounds would diminish a person’s ability to execute the work responsibilities. At National, Es-topinal is sometimes required to unload boxes of paper weighing over 35 pounds from the stock shelf to a hand truck. This is routinely performed as a consequence of printing 10,000 to 15,000 printed copies. Estopinal is required to open boxes of paper and physically bend and reach down for paper and cardboard in order to load the press. He is then required to adjust the printing press according to the size of paper or cardboard. Should the machine jam, he must further bend over and reach into the press in order to make the necessary adjustment to free any paper.

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Bluebook (online)
545 So. 2d 1133, 1989 La. App. LEXIS 1183, 1989 WL 62497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estopinal-v-national-tea-co-lactapp-1989.