Gilmore v. Alton Ochsner Medical Foundation

458 So. 2d 197, 1984 La. App. LEXIS 9756
CourtLouisiana Court of Appeal
DecidedOctober 11, 1984
DocketNo. 84-CA-150
StatusPublished
Cited by1 cases

This text of 458 So. 2d 197 (Gilmore v. Alton Ochsner Medical Foundation) 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
Gilmore v. Alton Ochsner Medical Foundation, 458 So. 2d 197, 1984 La. App. LEXIS 9756 (La. Ct. App. 1984).

Opinion

BOUTALL, Judge.

This is a workman’s compensation case. From a judgment finding the claimant totally and permanently disabled, the defendant employer has appealed and the plaintiff has filed a cross appeal.

The claimant is Doretha Gilmore, a thirty-year old woman who was injured in a fall while working as a housekeeper at Ochsner Hospital on August 4, 1982. While cleaning some tile above a tub-shower, she slipped and fell into the tub. She went to the Ochsner emergency room, complaining of pain in the head, right shoulder, and right hip. Shortly afterward she began having severe pains in her back. She was referred to a staff orthopedist who pronounced her able to return to work on August 31, 1982. She felt she was in too much pain to work and sought legal help in obtaining worker’s compensation benefits. She did attempt to return to the job in November, 1982 but reported to the Ochs-ner emergency room with back pain. Early on New Year’s morning, 1983, she was injured in a second accident, when an automobile she was driving was hit by another. From August 4, 1982 to the date of trial she continued to receive medical treatment from physicians to whom her several successive attorneys referred her.

Trial was held on June 27, 1983, but was continued as an open case to allow further testimony or depositions of witnesses who were unable to appear at trial. No testimony or depositions were filed into the record after trial. Judgment in favor of the plaintiff was rendered on September 27, 1983, finding Doretha Gilmore to be totally and permanently disabled as a result of the job-related accident. The court denied penalties for arbitrary or capricious termination of benefits. The employer appealed the judgment, and the employee cross-appealed that portion of the judgment denying penalties and attorney’s fees.

The defendant raises two issues: first, whether the on-the-job accident caused a permanent and total disability; and second, whether worker’s compensation benefits should have been granted for disability resulting from the later automobile accident or, in the alternative, whether the court should have distinguished damages incurred as a result of the accident at the hospital from those incurred in the automobile accident. The plaintiff raises a third issue, whether Ochsner terminated her compensation benefits in an arbitrary and capricious manner.

Total and permanent disability. Although the procedural rules in worker’s compensation cases are construed liberally in favor of the claimant, he bears the burden of proving:

.“... by a preponderance of the evidence: that he received personal injury by accident arising out of and in the course of his employment; that he is disabled; and, that his disability resulted from injuries sustained in the work-related accident. See Laughlin v. City of Crowley, 411 So.2d 708 (La.App. 3 Cir.1982), and authorities cited therein.” Stanfield v. Insurance Company of North America, 420 So.2d 1296 (La.App. 3rd Cir.1982), writ denied, 423 So.2d 1180 (La.1982), at 1297.

The trial judge stated in his reasons for judgment that he believed that Ms. Gilmore’s injuries were caused by the original accident at work rather than by the automobile accident. He based his judgment on the reports of physicians treating her before December 31, 1982 and her continuing complaints of pain. At trial testimony was given by one physician only, Dr. Luis Bo-gran, who had first examined her on March 24, 1983 and was still her physician at time of trial.

The determination of whether Ms. Gilmore was in fact disabled by the work-related accident is complicated by the occurrence of the second accident and by her changing physicians at that time. There[200]*200fore, we have examined very closely the reports of the physicians who saw her before December 31, 1982 but were not called as witnesses.

It is important to note that Ms. Gilmore stated in a January 9,1981 personal history at Ochsner Medical Center that she had not had any back trouble. Dr. Duncan, the Ochsner orthopedist who saw her on August 24, 1982, reported that the x-rays were negative, but that she reported severe pain. His opinion is as follows:

“I do not find any present significant orthopaedic problem. The patient has subjective complaints without significant objective findings.
“The patient is exaggerating her complaints.
“In my opinion, the patient should return to work.”

The report of Dr. Arthur Z. Blamphin dated December 20, 1982, reveals the following: When he first examined Ms. Gilmore on August 31, 1982, she complained of pain in the back of the head, the right shoulder, and low back. He found: limitation of motion and tenderness upon palpation of the neck; normal motion of the shoulder but tenderness of the right upper deltoid muscle; and as to the back tenderness of the lumbosacral joint, positive straight leg raise test at 70 degrees, and pain upon bending forward, which she could perform to the lower one-third of her leg. After treating her with pain pills and physical therapy treatments, Dr. Blamphin informed her attorney that she should be referred for an orthopedic consultation as she was still complaining of pain. In her last visit on September 29, 1982, she complained of a stiff neck, stiff right shoulder, headaches, and painful and stiff back. Dr. Blamphin’s summary reads as follows:

“Impression: 1. Contusion injury to head with post traumatic cephalalgia.
2. Cervical strain.
3. Lumbosacral strain.
Prognosis: Good
Impairment: No permanent impairment expected.
Disability: Undetermined.”

Dr. Charles R. Billings, the orthopedist to whom the attorney sent Ms. Gilmore, reported that his examination on September 24, 1982 was limited to the lumbar spine and both lower extremities. His summary is as follows:

“Lateral and A-P radiographs of the lumbar spine were obtained at her initial office visit that disclosed no significant disc space narrowing. There was minimal evidence of degenerative joint disease.
“The initial impression was that of lumbar strain with possible lumbar disc disease. Conservative management was advised and Meclamen was prescribed as a nonsteroidal anti-inflammatory agent. Proper body mechanics were also discussed concerning the lumbar spine region. Lifting and bending should be restricted activities.”

She was told to return in one month for reassessment but apparently did not.

Ms. Gilmore’s second attorney referred her to Dr. Joseph Rauchwerk, an orthopedic surgeon, who saw her first in October, 1982 for evaluation of her right shoulder and lower back. Dr. Rauchwerk reported that straight leg raising was negative both in sitting and in the supine position. His summary of the first visit is as follows:

“IMPRESSION AND OPINION: The subjective complaints and physical examination are consistent with grade I my-ofascial sprain of the lumbosacral spine superimposed on preexisting early degenerative changes of the L5-S1 facet joint on the left side. Mild contusion of the right shoulder.

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458 So. 2d 197, 1984 La. App. LEXIS 9756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-v-alton-ochsner-medical-foundation-lactapp-1984.