Gould v. Hartford Accident & Indemnity Co.

154 So. 2d 804, 1963 La. App. LEXIS 1820
CourtLouisiana Court of Appeal
DecidedJune 18, 1963
DocketNo. 866
StatusPublished
Cited by1 cases

This text of 154 So. 2d 804 (Gould v. Hartford Accident & Indemnity 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
Gould v. Hartford Accident & Indemnity Co., 154 So. 2d 804, 1963 La. App. LEXIS 1820 (La. Ct. App. 1963).

Opinion

SAVOY, Judge.

Plaintiff instituted suit in workmen’s compensation for total permanent disability, medical expenses, penalties and attorney’s fees against Hartford Accident & Indemnity Company, the insurer of her former employer, French Unique Cleaners and Laundry. She alleged that on April 28, [805]*8051958, during her employment as a “checker” at her employer’s business establishment at 202 Jackson Street, in Alexandria, Louisiana, she slipped and fell to the concrete floor, and received disabling injuries; and, further, that defendant arbitrarily withheld the payment of compensation benefits.

Defendant filed an answer admitting plaintiff’s employment and the insurance policy, but denying that plaintiff sustained any accidental injury while in the employment of her employer, and alleging that the plaintiff’s duties were not hazardous in nature. Defendant alleged in the alternative that plaintiff had fully recovered from any injury received in her employment by May 27, 1960, the date through which plaintiff had been paid compensation benefits of $19.50 per week, and that any disability which plaintiff may now have is due solely and exclusively to natural causes, or to extraneous causes or conditions in no manner connected with her employment.

Defendant filed a reconventional demand against plaintiff for the return of the amount of $1,833.00 paid in compensation benefits and $331.00 paid in medical expenses, alleging that the payments were made through inadvertence and error.

The trial court determined that plaintiff did have pre-existent degenerative arthritis which had not progressed to the stage of disabling her, and that this condition was aggravated by the fall of April 28, 1958, to the extent of eventually producing disability; but that this aggravation had subsided and the disability suffered by reason of the accident had ended at approximately the time defendant discontinued the payment of benefits. Accordingly, judgment was entered in favor of defendant, dismissing the lawsuit with prejudice at plaintiff’s cost. The reconventional demand of defendant was rejected. A motion for a new trial by plaintiff was denied.

From this judgment, plaintiff has appealed to this court, and defendant has filed an answer to appeal with respect to its reconventional demand.

The main issue on this appeal is whether there is a causal relationship between the accident on April 28, 1958, and any disability suffered by plaintiff.

Plaintiff maintains that the trial court erred by not finding that plaintiff showed by a reasonable possibility that the fall aggravated and activated a dormant preexisting condition, causing plaintiff to become disabled, and that the burden of proof was then placed upon defendant to establish that the disability present at the time of the trial was not caused or aggravated by the accident. Also, that the court erred in holding plaintiff to strict proof of the specific injuries resulting from the accident and in holding that subsequent falls by plaintiff could have aggravated plaintiff’s condition, thereby restricting the compensation to a period of convalescence normal for the particular type of injury, apportioning the disability between that caused by the accident and that caused by the pre-existing condition.

Defendant maintained that the plaintiff has failed to establish by a preponderance of the evidence that she sustained a disabling accident as alleged while working for her employer, and further that she failed to establish by a preponderance of the evidence a causal connection between the accident and the alleged injury. Additionally, it is maintained that even if plaintiff did receive an aggravation of an old condition, which is denied, plaintiff has recovered to the same condition or level physically that she was in piror to the accident in question.

The evidence shows that plaintiff did fall to the concrete floor of her employer’s premises on or about April 28, 1958. Her employer was told simply that she had fallen to the floor. Plaintiff continued working daily, except for approximately six working days, until August 2, 1958. She made no complaints to her co-employees, who testified at the trial that they did not notice any limp or other evidence of disability on the part of plaintiff during this [806]*806period of over three months. Plaintiff testified that her knee did not give her any trouble until several days or a week after the fall; that she then took aspirin and anacin in order to bear the pain; and kept working, thinking her troubles were temporary. She testified that she did not limp at all, or make any complaints to her co-employees, because she wanted to keep her job which she needed so badly. She testified she had trouble sleeping because of the pain. When she left work on August 2, 1958, she testified she intended to return but decided to take off a few days for rest. She did not telephone her employer. On August 22, 1958, she saw a doctor and then notified her employer for the first time that the previous fall had injured her. Plaintiff testified that her knee has given her constant trouble since shortly after the accident, and she has used a walking cane since August 2, 1958.

Dr. Walter Murrell, a general practitioner in Alexandria, examined plaintiff on August 22, 1958, and January 29, 1959, and July 5, 1960, and followed her on a course of treatment during this period. He found a fracture of the upper tip of the fibula near the knee, and noted arthritis present in the knee with evidence of a spur formation. He treated her by a regime of injections, oral medicines and diathermy treatments which gave her only temporary relief. It was his opinion that the X-rays indicated some aggravation of plaintiff’s arthritic condition between August 22, 1958, and July 5, 1960, and that plaintiff was disabled on her last visit to him on July 5, 1960.

Dr. Murrell referred plaintiff to Dr. Paul M. Davis, Jr., an orthopedic surgeon in Alexandria, on November 14, 1958. Dr. Davis examined plaintiff on four occasions. On the first examination he found plaintiff to be disabled, with marked arthritic changes in her left knee, with evidence of spurring. He believed the arthritic changes existed prior to April 28, 1958. He found atrophy of the left thigh and left calf. He found no fluid in the knee joint, and there was not evidence of relaxation or tearing or injury to the cruciate .or the collateral ligaments. He also found an old healed fracture of the fibula. He recommended treatment, including injections of cortisone into the knee, and quadriceps exercises.

Dr. Davis next saw plaintiff on May 9, 1960. He found no atrophy, and noted that the left knee showed evidence of the same bony deformity on clinical examination which it had on the previous examination. Plaintiff had received no treatments for the prior six months. It was his opinion that plaintiff was using her leg pretty well since there was no atrophy, and that the aggravation occasioned by the accident had cleared and the plaintiff had returned to her pre-accident level. After further examinations of plaintiff, Dr. Davis also rendered reports on November 21, 1960, and June 20, 1961.

Dr. Eugene R. Pincus, a general practitioner of Alexandria, examined plaintiff on April 27, 1961, and May 15, 1962, and found some atrophy of the left thigh and calf on both occasions. On the first date he noted fluid in the left knee and that it was swollen. On both examinations he noted marked crepitation on movement of the knee, and that extreme flexion caused pain.

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Related

Gould v. Hartford Accident & Indemnity Co.
156 So. 2d 605 (Supreme Court of Louisiana, 1963)

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Bluebook (online)
154 So. 2d 804, 1963 La. App. LEXIS 1820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gould-v-hartford-accident-indemnity-co-lactapp-1963.