Graham v. Jones Bros. Co.

393 So. 2d 861, 1981 La. App. LEXIS 3450
CourtLouisiana Court of Appeal
DecidedJanuary 13, 1981
DocketNo. 14413
StatusPublished
Cited by3 cases

This text of 393 So. 2d 861 (Graham v. Jones Bros. 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
Graham v. Jones Bros. Co., 393 So. 2d 861, 1981 La. App. LEXIS 3450 (La. Ct. App. 1981).

Opinion

MARVIN, Judge.

In this worker’s compensation action, the trial court found that although the claimant had sustained an on-the-job accident, he had not sustained the burden of proving that his disability was caused by the accident, particularly because claimant failed to call as witnesses some, but not all, of the medical doctors who had examined him.1 The claimant appeals. We reverse and remand with directions.

Defendant produced no medical witnesses to contradict the sworn testimony of the two doctors who were called by claimant. These doctors were an orthopedist to whom the employer referred claimant and who first saw claimant following the accident, and a general practitioner who more frequently saw and treated claimant during the several months between the accident and the trial. Four other doctors (neurologists and a urologist) saw claimant one or more times.

Even if claimant’s failure to call the four doctors creates a presumption that their testimony would have been adverse to claimant, the trial court was in error in not finding that this presumption was overcome by the sworn uncontradicted testimony of medical witnesses who testified in person and by deposition. Muse v. Sentry Insurance Company, 269 So.2d 609 (La.App. 3d Cir. 1972); Carroll v. Southern Casualty Insurance Company, 285 So.2d 370 (La.App. 3d Cir. 1973).

This claimant was a service station equipment mechanic who had been employed by defendant employer for some 19 years when the accident occurred on January 26, 1977. Claimant was repairing an air compressor in a customer’s barn when the floor gave way and claimant partly fell through the floor. The heavy air compressor then fell on his chest and arm, rendering him momentarily unconscious. Claimant eventually got out of his predicament, rendered first aid to himself, and, with some difficulty, completed the repair of the compressor and returned to his employer’s shop. The employer does not deny that claimant reported the accident, that the claimant was referred to an orthopedist, Dr. Rambach, that the claimant thereafter complained of numbness in his arm and of some difficulty in performing some job assignments. The employer stated that claimant was a “good employee” in whose integrity the employer had “complete faith”. The employer related plaintiff’s arm weakness to “old age” rather than to the accident.

Dr. Rambach examined claimant on April 8,1977, and found that the triceps muscle in the left arm had been torn from its anchor point on the left elbow and that there was an abnormal bony formation in the area of the tear. According to Dr. Rambach, these conditions could cause the numbness, weakness, and pain about which claimant complained. Dr. Rambach recommended surgical correction of the muscle tear and removal of the bony formation but claimant attempted to continue working and did not follow Dr. Rambach’s recommendation.2

[864]*864Beginning in May 1977 and periodically thereafter until the day before trial, claimant began seeing a general medical practitioner, Dr. Powell. Dr. Powell treated plaintiff for his arm condition on many occasions as well as for apparently more frequent complaints of prostate problems and inability to urinate without pain. Dr. Powell examined claimant the day before trial and found decreased arm strength, atrophy, calcification, and nerve damage in the left arm, all of which he related to the January 1977 accident.3

While his condition deteriorated, claimant continued his employment with defendant until December 1977. He earlier began looking for employment or gainful activity less strenuous and less demanding than his mechanic work. He entered into some arrangement, either a partnership or joint venture, with a friend who was a service station owner and who, like claimant, was a part time preacher. In this arrangement claimant eventually became less able to engage in limited and light work, pumping gas, sweeping, servicing motor vehicles. Claimant and other lay witnesses testified about claimant’s demonstrations of increasing pain, atrophy, and weakness in his left arm, and about claimant frequently dropping things.

Claimant underwent prostate surgery in 1976. He testified that it was more painful for him to urinate after the 1977 accident than before. No medical testimony was offered in this respect by plaintiff or by the employer. Claimant did testify that when he fell through the floor in the 1977 accident that he went through the floor only up to his “crotch”. Claimant complained to Dr. Powell about groin pain.

The plaintiff’s testimony, corroborated by lay and medical witnesses, that he suffers substantial pain when he attempts to perform mechanic work after the accident, is not contradicted. He was a skilled employee and the fact that he performed some menial tasks in a limited capacity of a service station attendant does not abate his disability under the law.4

A claimant’s disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health, the symptoms of the disabling condi[865]*865tion appear after the accident and manifest themselves continuously afterwards, providing there is a reasonable possibility of causal connection between the accident and the disabling condition. The emphasis is ours. The language is the Supreme Court’s. Lindsey v. H. A. Lott, Inc., 387 So.2d 1091 (La.1980); Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977); Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973). See also Dixon v. Ruby’s, Inc., 389 So.2d 73 (La.App. 1st Cir. 1980).

The effect of this presumption, when applied, is to require the employer to show that the disability was caused other than by the accident complained of. Haughton v. Fireman’s Fund American Ins. Companies, 355 So.2d 927 (La.1978); Gradney, supra; Johnson, supra. Here the employer did not produce evidence to overcome the presumption that the claimant’s disability was caused by the accident.

Claimant has shown the required reasonable possibility of causal connection between the accidental injury and substantial pain which is disabling. While some of his pain emanates from his groin and may be attributable to a pre-existing prostrati-tis, the pre-existing condition does not deter our conclusion of total and permanent disability. See Brewster v. City of Shreveport, 115 So.2d 229 (La.App. 2d Cir. 1959). This condition was not disabling before the accident and his muscle tear and calcification, resulting in atrophy, weakness, and pain in the left extremity resulted from, and did not pre-exist, the accident. Plaintiff has shown a reasonable possibility of causal connection between the accident and the disabling condition. Under these circumstances, the defendant employer is liable for worker’s compensation benefits.

This claimant was a skilled service station equipment mechanic until the effect of the accident eventually disabled him. If a skilled employee, after a disabling injury, is able to perform in some gainful but less skilled occupation which exists in a reasonably stable and available labor market, he is not totally and permanently disabled within the meaning of the worker’s compensation law. LRS 23:1221. See Malone-Johnson, “Workmen’s Compensation”, 2d Ed., La. Civil Law Treatise, Vol. 13, §§ 273-280.

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

Related

Martin v. HB Zachry Co.
424 So. 2d 1002 (Supreme Court of Louisiana, 1982)
Hutchinson v. TG & Y. STORES CO.
412 So. 2d 708 (Louisiana Court of Appeal, 1982)
Graham v. Jones Bros. Co.
412 So. 2d 675 (Louisiana Court of Appeal, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
393 So. 2d 861, 1981 La. App. LEXIS 3450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-jones-bros-co-lactapp-1981.