Gunther v. Strachan Shipping Co.

85 So. 2d 543, 1956 La. App. LEXIS 601
CourtLouisiana Court of Appeal
DecidedFebruary 6, 1956
DocketNo. 20623
StatusPublished
Cited by3 cases

This text of 85 So. 2d 543 (Gunther v. Strachan Shipping 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
Gunther v. Strachan Shipping Co., 85 So. 2d 543, 1956 La. App. LEXIS 601 (La. Ct. App. 1956).

Opinion

REGAN, Judge.

Plaintiff, George Gunther, employed as a longshoreman, instituted this suit against the defendant, Strachan Shipping Company, his employer, endeavoring to recover workmen’s compensation at the rate of $30 per week for a period of four hundred weeks or, alternatively, $30 per week for a period of three hundred weeks, together with $1,000 for medical expenses, for total [544]*544and permanent or “temporary and total” disability resulting from the effect of an abscess caused by a cut incurred above his left ankle on July 22, 1953, while he was in the act of carrying a four foot crosscut saw he stepped into a pool of oil causing him to slip and fall a distance of about five or six feet from the wharf to the deck of a vessel which was being loaded by employees of the defendant.

The defendant answered and admitted the occurrence of the accident and resulting injuries to plaintiff’s buttocks and thigh, but denied that plaintiff’s left leg was cut in the course thereof or that the abscessed condition of the left knee and complications emanating therefrom had any causal connection with the accident.

From a judgment awarding plaintiff compensation at the rate of $30 per week for a period of four hundred weeks and $1,000 to cover medical expenses, the defendant has prosecuted this appeal.

Plaintiff related that .on July 22, 1953, at about 2:30 P.M. he was “lashing tractors in the hole of a ship” and was instructed by his foreman to procure a four foot crosscut saw from the wharf; while returning therewith he stepped upon some oil causing him to slip and fall fropi the “cap” of the wharf to the deck of ,the ship, a distance of about six feet, resulting in injuries to his buttocks and thigh and more specifically in a cut above his left ankle caused when hisTeg fell upon the saw; in consequence of the fall ,he was rendered unconscious and after recovery therefrom he was instructed to visit the office of'defendant’s physician, Dr. John Andrews, whose secretary obtained from him a history of the accident and resulting injuries, including the “cut”, although he believed it to be of little significance at the time. Thereafter he was examined by Dr.- Andrews, who prescribed treatment' only for the injuries to his buttocks and thigh. Plaintiff Visited this physician’s office thirty-one times or until October 10, 1953, when he terminated the relationship for the reason that'he felt that he was not improving under the prescribed treatment. Plaintiff’s wife, from the inception of the accident, treated his leg which, as we have said, plaintiff considered of little significance, until September or October and about January 29, 1954, pain in this leg caused him to consult James D. Parkerson, defendant’s chief accountant, who telephoned Dr. Andrews, and it was arranged to have plaintiff visit the offices of Dr. Daniel C. Riordan, an orthopedist. He discovered the existence of an abscess on the “medial aspect” of plaintiff’s left leg slightly below the knee and recommended immediate treatment. Plaintiff then informed Parkerson that he desired to secure treatment from a physician of his choice, Dr. Hanckes Klein, a, diagnostician, whom he saw on January 30, 1954. Dr. Klein examined the plaintiff and then requested his uncle, Dr. J. L. Hanckes, to incise the abscess and under considerable pressure it exudated about one and one-half ounces of pus. Plaintiff was then informed, that he would probably develop a “sinus area” that would have to be surgically removed later. He visited these physicians eleven times and on March 23, 1954, he was confined to Mercy Hospital, where Dr. Ernest S. Merse, on March 24, 1954, surgically excised the sinus area of the leg where the abscess formerly existed. Plaintiff was hospitalized for one week, remained at home in bed for two weeks and refrained from any type of work for about three months. Up until his first visit to Dr. Klein, plaintiff continued to perform the usual duties of a longshoreman, although he related that his leg began to interfere with his work about the end of November or beginning of December, 1953. Following the operation plaintiff felt that he was unable to fully resume all of the activities of a longshoreman and also refrained therefrom in conformity with the advice of his doctor, who says that he will continue to examine plaintiff periodically. However, since his recovery from the operation plaintiff readily admits that he is able to perform at least one phase of the duties of a longshoreman and that is “carpentry work”, which is seasonal ' and represents . about one-tenth of the scope of a longshoreman’s activities on the river front.

[545]*545While the defendant admits' the occurrence of the accident and the resulting injuries to plaintiff’s buttocks and thigh, it denies that plaintiff’s left leg was- “cut” in the course thereof. To substantiate this contention it offered in evidence the testimony of Dr. Andrews, who asserted .that on the day of the accident, when he examined plaintiff he did not observe nor was he informed of the existence of a “cut” on plaintiff’s ankle, although he was in an excellent position, during the course of the examination and subsequent treatment, to discover this injury if one existed.

The initial question of fact which the defendant has posed for our consideration is whether the plaintiff incurred “a cut on his leg on the day of the accident” and a careful examination of the record reveals no error in the trial court’s conclusion and it likewise convinces us that the evidence preponderates to the effect that such a “cut”, among other injuries, was incurred as a result of the accident.

The fundamental question of fact which the foregoing conclusion has now posed for our consideration is whether any medical correlation or causal connection exists between the trauma to the left leg or the “cut” sustained above plaintiff’s left ankle and the subsequent abscess which developed on the inside of his left knee about ten and one-half inches removed therefrom?

In order to substantiate, among other things, the causal connection between the. accident and resulting disability, two medical experts testified on behalf of the plaintiff, Doctors Klein and Merse.

Dr. Klein related that he has had “special training in physical diagnosis” which he teaches in the College of Medicine of Tulane University and he expressed the opinion that the cut caused by the saw or striking his leg on the wharf or deck of the ship could have caused the abscess and that an infection of this sort “could form any time from approximately * * * three weeks to six months.” In conclusion he was of the further opinion that the plaintiff could nbt resume the full rigorous duties of a longshoréman. • However, he planned to examine plaintiff periodically in order to determine the extent of his recovery.

Dr. Merse, a specialist with fourteen years experience in surgery, related that the first time that he saw the plaintiff- was when he performed the operation on March 24, 1954, and he was of the opinion that a “sinus tract” resulted from an infection of long standing and upon being interrogated “Now would you say that from the accident which the plaintiff in this case sustained on July 22nd, 1953, that six months later that this operation would be necessary * * * as a result of that trauma?”, he responded “Yes.”

Dr.

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Bluebook (online)
85 So. 2d 543, 1956 La. App. LEXIS 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gunther-v-strachan-shipping-co-lactapp-1956.