Hall v. McDonald Insulation

537 So. 2d 328, 1988 WL 141485
CourtLouisiana Court of Appeal
DecidedDecember 20, 1988
Docket88 CA 1159
StatusPublished
Cited by29 cases

This text of 537 So. 2d 328 (Hall v. McDonald Insulation) 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
Hall v. McDonald Insulation, 537 So. 2d 328, 1988 WL 141485 (La. Ct. App. 1988).

Opinion

537 So.2d 328 (1988)

Joe Everett HALL
v.
McDONALD INSULATION and Chubb Insurance Company.

No. 88 CA 1159.

Court of Appeal of Louisiana, First Circuit.

December 20, 1988.

*329 Thomas B. Waterman, Ponchatoula, for plaintiff-appellee.

Denis Paul Juge and George W. Byrne, Jr., New Orleans, for defendants-appellants McDonald Insulation, et al.

Before CARTER, LANIER and LeBLANC, JJ.

CARTER, Judge.

This is an action for worker's compensation benefits brought by Joe Everett Hall (plaintiff) against his employer, McDonald Insulation (McDonald), and Chubb Insurance Company (Chubb), McDonald's insurer.

FACTS

On October 12, 1987, plaintiff began working for McDonald as a manual laborer. He was paid $6.00 per hour based on a forty-hour work week. Plaintiff worked twelve hours on Monday, October 12, 1987. On Tuesday, October 13, 1987, shortly after the work day began, plaintiff was injured at the job site. At the time of the accident, plaintiff was engaged in assisting two men who were using an electric scissor lift. Plaintiff's job was to keep the electrical cord from falling beneath the wheels of the *330 machine. Plaintiff testified that, while engaged in this activity, he tripped and fell backwards on a pipe that was sticking out of the floor. Plaintiff claims that the accident resulted in injuries to his back and left foot. Plaintiff continued to work for about thirty minutes after the accident and then told George Hope, the job supervisor, that he was leaving to go to the doctor. Hope admitted that he had witnessed the incident, but testified that plaintiff had only stubbed his toe.

On the day of the accident, plaintiff visited Dr. Charles Genovese, Sr., his family physician. Dr. Genovese testified that plaintiff reported that he had fallen. Dr. Genovese testified that he did not perform a detailed examination because he felt he would not be treating plaintiff's injury; however, he referred plaintiff to Lallie Kemp Charity Hospital for treatment. Dr. Genovese also gave the plaintiff a note confining him to his home for one week. The note was subsequently delivered to Hope by plaintiff's relatives. Although Dr. Genovese made no notes relative to plaintiff's complaints, he was able to recall that the complaints were related to plaintiff's fall.

On the night of October 16, 1987, plaintiff went to Lallie Kemp Charity Hospital in Independence, Louisiana, where he was seen by the emergency room physician, Dr. John T. Lindsey. Dr. Lindsey's records indicated that plaintiff reported that he had injured himself while working in a warehouse four days earlier. Plaintiff complained of foot pain and a knee injury. Dr. Lindsey examined plaintiff's foot and knee and had x-rays taken of the foot. Dr. Lindsey wrapped plaintiff's foot in an ace bandage, placed the foot in a splint, and referred plaintiff to the orthopedic clinic at Lallie Kemp. Dr. Lindsey could not remember whether plaintiff left the hospital on crutches. Plaintiff did not see Dr. Lindsey after this initial examination.

When he continued to experience pain, plaintiff visited Dr. John Watermier, an orthopedic surgeon, on October 21, 1987. Dr. Watermier examined plaintiff and determined that plaintiff had a possible fracture to the bones of the left foot and sprained muscles and ligaments in the lower back. Dr. Watermier placed plaintiff's leg in a cast for eight weeks. Dr. Watermier continued to treat plaintiff and diagnosed his injury as lumbar disc syndrome and possible sympathetic dystrophy of the foot. Dr. Watermier testified that plaintiff was totally disabled and recommended hospital treatment and further tests.

On March 10, 1988, plaintiff was also examined by Dr. Luis F. Matta, who examined plaintiff on behalf of the defendants on only this one occasion. Dr. Matta prescribed a six-week therapy program for plaintiff. Dr. Matta testified that his examination revealed that plaintiff could possibly do light work. However, Dr. Matta acknowledged that, based upon his own experience with restricting a patient to light duty around areas of heavy work, this recommendation was usually ignored. Dr. Matta explained that either the patient violated the light work order or the patient's supervisor required the patient to return to regular work. It was Dr. Matta's conclusion that a light work order was not conducive to good management of a patient.

Plaintiff was also seen by Ms. Jennifer Palmer, a vocational rehabilitation counselor. Ms. Palmer testified that she felt plaintiff could return to his former employment or seek employment in one of the areas in which he is trained. Plaintiff is trained as a diesel mechanic, a welder, a sandblaster, and a painter. Because plaintiff is well-trained, Ms. Palmer did not consider him a candidate for rehabilitation. In arriving at these conclusions, it is apparent that Ms. Palmer discounted plaintiff's injuries.

The trial judge awarded plaintiff compensation benefits for temporary total disability beginning October 13, 1987, and to continue throughout his disability and all medical expenses incurred by plaintiff, with legal interest on these amounts from the date of judicial demand. Penalties were awarded on each past due worker's compensation payment and past due medical expenses at 12%. Attorney's fees were awarded in the amount of $5,000.00, together with legal interest from the date of *331 judicial demand. Costs including expert witness fees were assessed to McDonald and Chubb. From this judgment, McDonald and Chubb appealed. Plaintiff answered the appeal, requesting an increase in the award of attorney's fees.

ASSIGNMENTS OF ERROR

McDonald and Chubb assign the following errors:

I. The trial court erred in finding Joe Everett Hall to be temporarily totally disabled.
II. The trial court erred in awarding penalties and attorney's fees.
III. The trial court erred in awarding a 12% penalty on medical expenses.
IV. The trial court erred in awarding judicial interest on worker's compensation benefits from the date of judicial demand.
V. The trial court erred in awarding judicial interest on the award of attorney's fees from the date of judicial demand.

ASSIGNMENT OF ERROR NO. 1

(Temporary Total Disability)

Although much of the medical evidence presented herein consists of depositions, we are required to apply the manifest error standard to the trial court's decision. We are not therefore authorized to assess credibility and weigh medical evidence independent of the trial court's finding. Virgil v. American Guarantee And Liability Insurance Company, 507 So.2d 825 (La. 1987).

We do not find that the trial court was manifestly erroneous in finding that plaintiff was temporarily totally disabled. Plaintiff's treating physician testified that he believed the plaintiff was temporarily totally disabled. Dr. Matta disagreed. However, the general rule is that the diagnosis of a treating physician is entitled to more weight than the diagnosis of a physician consulted for the purpose of litigation only. Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982).

After carefully reviewing the entire record under the appropriate standard, we cannot say that the trial court's findings were manifestly erroneous. We therefore find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 2

(Penalties and Attorney's Fees)

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

Related

Cheryl A. McCain v. Motel 6
Louisiana Court of Appeal, 2020
Harper v. Boise Paper Holdings, LLC
258 So. 3d 651 (Louisiana Court of Appeal, 2017)
Lonnie Harper v. Boise Paper Holdings, LLC
Louisiana Court of Appeal, 2017
Ardoin v. Calcasieu Parish School Board
184 So. 3d 896 (Louisiana Court of Appeal, 2016)
Quick v. TERREBONNE GENERAL MEDICAL CENTER
35 So. 3d 287 (Louisiana Court of Appeal, 2010)
James v. a & B BUILDERS
29 So. 3d 541 (Louisiana Court of Appeal, 2009)
Roussell v. St. Tammany Parish School Bd.
943 So. 2d 449 (Louisiana Court of Appeal, 2006)
Hundley v. Bisso Properties
858 So. 2d 545 (Louisiana Court of Appeal, 2003)
Goodman v. Manno Electric, Inc.
835 So. 2d 697 (Louisiana Court of Appeal, 2002)
Baullion v. Old American Pottery Co.
801 So. 2d 567 (Louisiana Court of Appeal, 2001)
Atwood v. Ewing Timber, Inc.
774 So. 2d 1140 (Louisiana Court of Appeal, 2000)
Liga/Mortem Risk Management v. Franks
768 So. 2d 622 (Louisiana Court of Appeal, 2000)
Spencer v. Gaylord Container Corp.
693 So. 2d 818 (Louisiana Court of Appeal, 1997)
Smith v. Martin Mills, Inc.
701 So. 2d 680 (Louisiana Court of Appeal, 1997)
Manuel v. River Parish Disposal, Inc.
683 So. 2d 791 (Louisiana Court of Appeal, 1996)
Sterling v. Orleans Parish School Bd.
679 So. 2d 167 (Louisiana Court of Appeal, 1996)
Fontenette v. McDermott, Inc.
694 So. 2d 266 (Louisiana Court of Appeal, 1995)
Meche v. Foremost Management Corp.
663 So. 2d 325 (Louisiana Court of Appeal, 1995)
Mitchell v. Dixie Roofing & Sheet Metal Co.
663 So. 2d 222 (Louisiana Court of Appeal, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
537 So. 2d 328, 1988 WL 141485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-mcdonald-insulation-lactapp-1988.