Foster v. Chambers Construction Co.

489 So. 2d 1311, 1986 La. App. LEXIS 7092
CourtLouisiana Court of Appeal
DecidedMay 28, 1986
DocketNo. 85 CA 0235
StatusPublished
Cited by2 cases

This text of 489 So. 2d 1311 (Foster v. Chambers Construction 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
Foster v. Chambers Construction Co., 489 So. 2d 1311, 1986 La. App. LEXIS 7092 (La. Ct. App. 1986).

Opinion

WATKINS, Judge.

This is a worker’s compensation suit. The trial court denied the plaintiff benefits and he has appealed alleging as errors the court’s failure to find him partially disabled under LSA-R.S. 23:1221(3), and to award attorney’s fees and penalties for the defendants’ arbitrary and capricious termination of benefits. Finding that the plaintiff did suffer a disabling work-related injury, we reverse.1

Clifton Foster was employed by Chambers Construction Company as a carpenter foreman. On July 8, 1982, while in the course and scope of his employment, he was carrying an aluminum extension ladder which struck an electrical power line. The 69,000 volt shock which Foster received from contact with this line caused second and third degree burns over thirty-four per cent of his body. During the forty days he was hospitalized in the Baton Rouge General Hospital Burn Unit he underwent several surgeries performed by Dr. Millard E. Byrd, Jr., under whose care he remained after discharge.

Foster resumed his employment on a limited basis in November, 1982, to work on an addition to Chambers’ office building. In December, 1982, Dr. Byrd first noted plaintiff’s complaints of weakness in the knees (the condition which plaintiff alleges is the reason for his inability to perform his normal duties as a carpenter foreman). It was also at this time that Dr. Byrd assigned a permanent disability rating of [1313]*1313twenty to thirty per cent as to the plaintiff being able to perform unlimited duty. However, he felt that Foster could work in a supervisory position as long as it did not require bending, squatting or performing heavy manual labor. Plaintiff remained on limited duty with Chambers through January, 1983.

Plaintiff was seen by Dr. Byrd in March, 1983, at which time he was still complaining of weakness in his legs and additionally of pain in his right foot. Dr. Byrd referred the plaintiff to an orthopedist, Dr. J. Willard Dowell, who diagnosed the condition of his right foot as a Morton’s neuroma. He was unable to attribute the weakness in the legs to any orthopedic deficiency.

At the request of the defendant and its insurer, Zurich-American Insurance Companies, the plaintiff was examined in June, 1983, by Dr. Robert E. Hanchey, a neurosurgeon. Dr. Hanchey was unable to find any significant neuromuscular weakness and opined that Foster “could return to his previous duty assignment as strictly a supervisory construction foreman without attendant duties of any type of heavy labor.”

The plaintiff worked for Chambers three weeks in June, 1983. He testified that this work involved supervising the completion of jobs which his employer had undertaken but had no one else with his particular construction expertise to finish.

In July, 1983, Dr. Byrd reexamined the plaintiff finding his burns to be completely healed with no residual disability. He reported that plaintiff was still experiencing weakness in his legs. At that time, he thought that the weakness was not related to the electrical burns, but was unable to rule out that possibility with any degree of certainty. Since he felt the complaint was real, he referred Foster to Dr. Samuel J. Levert, Jr., a neurologist.

Dr. Levert initially examined Foster in July, 1983, at which time he opined that he “may have sustained some neurological damage related to the electrical injury. This has been known to occur weeks or months following the electrical injury. I suspect that this will be temporary and full recovery is anticipated.” He suggested that the plaintiff undergo further testing that Dr. Levert later performed in August, 1983, which revealed abnormal nerve response in the left leg. After the examination by Dr. Levert, but prior to the testing, Dr. Byrd, on August 9, 1983, reported to the insurer that Foster was still disabled, based upon the objective neurological findings of Dr. Levert.

The final examination by Dr. Levert occurred in October, 1983, at which time the plaintiff was complaining of increased weakness in the knees since his last visit and also of weakness in the right foot. In his report to the insurer, Dr. Levert stated that he talked with the plaintiff about his employment duties entailing much standing, walking, stooping, and bending, activities which Foster felt he was unable to perform due to the weakness in his legs. Although he felt that the plaintiff had improved during the period between visits, he stated that Foster did sustain neurological impairment as a result of the accident. As to the foot, he felt this weakness would not hinder his return to work.

Foster was reexamined by Dr. Byrd in February, 1984, complaining of the progressive worsening of the weakness in his legs. Feeling that the question of nerve injury resulting from the electrical accident was still unresolved, he again referred the plaintiff to a neurologist. Since Dr. Levert was no longer practicing with Baton Rouge Neurological and Neurosurgical Associates, the plaintiff was examined in April, 1984, by Dr. Allen S. Joseph, a neurosurgeon, who was a member of this group. He opined that Foster had a “perineal nerve lesion related to his electrical injury which may be exacerbated by an underlying radiculopathy.” Dr. James Robertson, a neurologist, performed the same tests as Dr. Levert had and found no improvement in the results. On the Attending Physicians Statement, Dr. Joseph answered negatively to questions regarding Foster’s return to his regular occupation on either a full or part-time basis, and indicated that he would be unable to return until June, 1984.

The last medical examination occurred one week prior to trial, at which time Fos[1314]*1314ter again saw Dr. Hanchey who was “unable to confirm any ongoing neuromuscular weakness.”

Plaintiff, his wife, and Dr. Byrd were the only witnesses who testified at the trial. The payroll records of Chambers Construction for Clifton Foster along with the hospital and medical reports of the physicians seen by the plaintiff were entered into evidence. Defendants offered the deposition of Dr. Hanchey.2

Dr. Byrd reiterated his earlier findings of a twenty to thirty per cent disability because of the difficulty the plaintiff was having in bending, squatting and performing heavy manual labor as a result of the weakness in his legs. He further stated that although he was unsure initially that the weakness was related to the electrical burns, Dr. Levert’s findings had convinced him that the nerve damage could have occurred. His conviction was corroborated by the fact that from his experience in treating the plaintiff, he believed Foster was not a malingerer and had genuine complaints. As he stated, “But, he had troubles with his legs, and as he described his job to me, he had trouble doing it. He was superintendent of work and there were alot of things he could do, but the squatting and the bending, he had legitimate complaints. And the weakness, I think was legitimate.”

Clifton Foster testified that his duties as a construction superintendent involved a great amount of walking. They also entailed “hands on” work in demonstrating the proper techniques and methods to be used. He testified that he would now be unable to perform the activity in which he was engaged at the time of the accident— carrying an extension ladder. He is now in a partnership with his son in a television sales and service business. He testified that for about twenty years he performed work as a television repair technician on a part-time basis.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wahden v. Sanders
507 So. 2d 862 (Louisiana Court of Appeal, 1987)
Foster v. Chambers Construction Co.
493 So. 2d 643 (Supreme Court of Louisiana, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
489 So. 2d 1311, 1986 La. App. LEXIS 7092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-chambers-construction-co-lactapp-1986.