Gardner v. Normal Life Inc.

542 So. 2d 823, 1989 La. App. LEXIS 748, 1989 WL 37027
CourtLouisiana Court of Appeal
DecidedApril 19, 1989
DocketNo. 88-129
StatusPublished
Cited by2 cases

This text of 542 So. 2d 823 (Gardner v. Normal Life Inc.) 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
Gardner v. Normal Life Inc., 542 So. 2d 823, 1989 La. App. LEXIS 748, 1989 WL 37027 (La. Ct. App. 1989).

Opinion

GUIDRY, Judge.

This is a worker’s compensation case. The plaintiff, Lucille Gardner, seeks benefits for permanent partial disability, statutory penalties and attorney’s fees from her employer, Normal Life, Inc. and its alleged worker’s compensation insurer, Underwriters Adjusting Company. The trial court dismissed plaintiff’s primary claim and other demands but did award her $1,250.00 in reimbursement of a tuition loan in connection with her schooling at the Delta School of Business and medical expenses for a physical therapy bill which had not been paid by her employer, along with applicable statutory penalties and $350.00 in attorney’s fees. The trial court assessed three-fourths of the court costs against plaintiff and one-fourth against defendants, Normal Life, Inc. and Kansas City Fire and Marine Insurance Company (hereafter Kansas City), Normal Life’s actual worker’s compensation insurer.1 Plaintiff alone appealed.

FACTS

Plaintiff, Lucille Gardner, age 27, was employed as a nurse’s aide by defendant, Normal Life, Inc., a company which operates a home for retarded and physically handicapped persons in New Iberia, Louisiana. She testified that on April 28, 1985, while acting in the course and scope of her employment, she sustained an injury to her back when she lifted a patient weighing approximately 400 pounds into a wheelchair. She stated that she continued to work for the remainder of her shift but was in extreme pain on the morning following the accident. There were no witnesses to the accident. Plaintiff was subsequently paid worker’s compensation benefits and medical expenses. On January 26, 1987, at defendants’ request, plaintiff was examined by Dr. Fred E. Webre, an orthopedic surgeon. Pursuant to Dr. Webre’s findings, benefits were terminated as of February 1,1987. Thereafter, plaintiff instituted this suit.

Plaintiff was initially treated by her employer’s physician, a Dr. Ditch. Dr. Ditch had plaintiff x-rayed, prescribed pain medication, and told her not to return to work. One week later, Dr. Ditch examined plain[825]*825tiff and diagnosed her as having a lordotic (swayback) posture and left hip bone out of joint. Plaintiff was subsequently hospitalized to undergo manipulation therapy for her hip and physical therapy for her back.2 Due to plaintiffs continued complaints of back pain, Dr. Ditch referred plaintiff to Dr. R.W. LeBlanc, a board certified orthopedic surgeon. At the time of trial, plaintiff was still under the care of Dr. LeBlanc.

Dr. R.W. LeBlanc, plaintiffs treating orthopedic physician, conducted a series of tests on plaintiff including x-rays, an MRI (Magnetic Resonance Imaging) scan, a CT scan, and various neurological examinations. Dr. LeBlanc concluded that all tests and x-rays were normal with the exception of the MRI scan. He opined that the MRI scan indicated a slight bulge at the L4-5 disc, indicating a low grade injury to that disc. He admitted that the disc in question was not ruptured nor was it causing any nerve root compression. Dr. LeBlanc candidly admitted that his opinion with regard to the MRI was not shared by two radiologists, including Dr. James B. Godcheaux, who performed the MRI at Dr. LeBlanc’s request. Both radiologists found the MRI completely normal.

Although Dr. LeBlanc admitted that he did not consider himself skilled in interpreting MRIs, he nevertheless maintained that a bulging disc did exist. Dr. LeBlanc admitted that the plaintiff never exhibited any objective neurological findings and possessed a “significant amount of pyschological overlay with her symptoms”, i.e., her complaints were not always consistent with his anatomical findings. In sum, based solely upon his interpretation of the MRI and her continued complaints of pain, Dr. LeBlanc concluded that plaintiff was unable to return to her work as a nurse’s aide.

Dr. Fred E. Webre, an orthopedic surgeon, also examined plaintiff. He conducted a physical examination of plaintiff and had her x-rayed. Dr. Webre opined that plaintiffs examination, x-rays and previously performed CT scan were normal. He concluded that plaintiff was no longer disabled and was able to return to work.

Dr. James B. Godcheaux, the radiologist who was asked by Dr. LeBlanc to perform the MRI on plaintiff, also interpreted the MRI scan. He concluded that the MRI was normal.

On appeal, plaintiff urges trial court error in the following particulars:

1. The trial court erred when it failed to find plaintiff permanently partially disabled pursuant to La.R.S. 23:1221(4).
2. The trial court erred when it failed to award plaintiff rehabilitation benefits.
3. The trial court erred when it failed to award plaintiff adequate attorney’s fees.
4. The trial court erred when it apportioned 75% of the court costs to plaintiff.

PERMANENT PARTIAL DISABILITY AND SUPPLEMENTAL BENEFITS.

In Sepulvado v. Williamette Industries, 459 So2d 1342 (La.App. 3rd Cir.1984), at page 1344, we reiterated the following well-established jurisprudential rules regarding the plaintiff’s burden of proof in compensation cases and the proper weight to be accorded the treating physician’s testimony:

“While in compensation cases the law is to be liberally construed in favor of the employee, the plaintiff in a compensation suit is required to prove the facts by a preponderance of the evidence and with the same legal certainty as required in any other civil case. Fogleman v. Roy O. Martin Industries, Inc., 432 So.2d 1197 (La.App. 3rd Cir.1983); Delco v. Heritage Manor Nursing Home, 441 So.2d 309 (La.App. 3rd Cir.1983); Ellis v. Rapides Parish School Board, 419 So.2d 990 (La.App. 3rd Cir.1982). Moreover, whether a plaintiff’s pain is substantial enough to render him disabled is a question of fact to be determined by the trier of fact; such a determination of fact will not be disturbed on appeal when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility furnishes a reasonable factual ba[826]*826sis for such findings, unless such findings are clearly wrong. Fogleman v. Roy O. Martin Industries, Inc., supra. Ordinarily, the treating physician’s testimony will be given more weight than that of a doctor who examines a plaintiff for diagnosis only. Guillory v. INA, 401 So.2d 612 (La.App. 3rd Cir.1981); Porter v. Augenstein Construction Company, 280 So.2d 861 (La.App. 3rd Cir.1973)....”

Additionally, in Guidry v. Davis, 382 So.2d 250 (La.App. 3rd Cir.1980), we stated at page 253:

“It is also well settled that the jury or trial judge may, and should, assess the credibility of experts who testify at the trial, as well as that of lay witnesses, to determine the most credible and realistic evidence and the fact finder’s determination of the credibility of those witnesses will not be disturbed unless found to be clearly erroneous. Green v. State, Southwest Louisiana Charity Hosp., 309 So.2d 706 (La.App. 3 Cir.1975); Monette v. Aetna Cas. & Sur. Co., 352 So.2d 423 (La.App. 3 Cir.1977).

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Bluebook (online)
542 So. 2d 823, 1989 La. App. LEXIS 748, 1989 WL 37027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-normal-life-inc-lactapp-1989.