Ike v. Home Indemnity Co.

205 So. 2d 203, 1967 La. App. LEXIS 4854
CourtLouisiana Court of Appeal
DecidedDecember 19, 1967
DocketNo. 7186
StatusPublished
Cited by2 cases

This text of 205 So. 2d 203 (Ike v. Home 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
Ike v. Home Indemnity Co., 205 So. 2d 203, 1967 La. App. LEXIS 4854 (La. Ct. App. 1967).

Opinion

SARTAIN, Judge.

This is a workman’s compensation suit in which the claimant, Louis Ike Sr., seeks to recover for an alleged injury sustained while in the employ of Jones and Farrens, Inc. Jones and Farrens, Inc., and their workmen’s compensation insurer, Home Indemnity Company, prosecute this appeal from a judgment granting plaintiff maximum workmen’s compensation benefits of $35.00 per week for a period of 400 weeks, in addition to outstanding medical expenses, less previous compensation payments. Plaintiff has also appealed on the ground that the trial court erred in not assessing penalties and attorney’s fees pursuant to LSA-R.S. 23:1201.2.

On November 19, 1965, plaintiff, age 45, was employed by Jones and Farrens, Inc. as a common laborer. Plaintiff sustained an injury while in the process of pushing a wheelbarrow laden with tools, and described the accident in the following fashion:

“Q. Will you explain to the Court how it happened ?
A. Yes, ma’am. I were on my way, was picking up tools and I rolled my wheelbarrow and it had been a big rain and had to cover up the slab where they poured concrete, and after we had done got through with that I walked on my way to the tool shed and I picked up the wheelbarrow and put it over inside the first track and on my knee with some shovels in it and I aimed to bump the wheelbarrow to make it jump the track and my foot slipped and I went over the wheelbarrow and fell over inside the next track. The wheelbarrow struck me in my left side.”

The above quoted account of the accident is explicitly corroborated by a co-employee, [205]*205Wilfred McNeilly, who was present and observed the incident. George Nettles, who was in the process of storing a “shoulder tool” stated:

“When I looked Ike was on the ground with the tools piled up around him, he was down, had done fell. We helped him up and got the wheelbarrow, carried it on and put it up in the tools, and he began complaining then.”

Ike reported to the home of John Farrens the next day, was in pain, informed Farrens of this fact and left for home at twelve noon. Plaintiff continued to attempt to perform his duties until November 29, 1965, at which time he was working with difficulty at a subpar rate of speed with a small chip hammer. Ike then proceeded to the office of Miss Anita Cottle, secretary for Jones and Farrens, who sent him to Dr. C. R. Chesnutt, the company doctor.

Dr. Chesnutt’s examinations revealed that plaintiff had a lumbar sprain, an arthritic condition of the back, and prostate difficulty. Dr. Chesnutt testified that the cause of the type arthritis with which Ike is afflicted is unknown, but that “trauma would certainly bring it to his attention, make his back hurt pretty bad.”

On December 1, 1965, Dr. Chesnutt sent the following note to Jones and Farrens, Inc.:

“Strain of back 11-19 & 11-29. Also advanced arthritis of spine which will delay the recovery. Will wear brace and have physical therapy and pain pills & should be able to return to work 12-6 with no strenuous exertion at least 6-8 weeks. Will be able to drive trucks. Has possibility of Ruptured Disc. We will check this.”

On December 3, 1965, Ike was examined by Dr. Howard Hansen who testified that although he did not ascertain the precise cause of the back trouble, there was a sprain of his lumbar spine and a contusion of the left inguinal area. At that time, Dr. Hansen’s opinion was that plaintiff was totally disabled to work as a laborer.

On January 11, 1966, a hernia was discovered by Dr. Chesnutt who then referred Ike to Dr. Sabatier. The hernia was found to be congenital and it is a matter of conjecture as to whether or not it was precipitated by the accident. Dr. Sabatier treated plaintiff for an acute low back sprain until February 8, 1966 at which time Ike underwent surgery for repair of the hernia. Ike was discharged on February 17, 1966 and the operative wound healed without incident. Dr. Sabatier last examined plaintiff on April 27, 1966, at which time he pronounced him fit to return to work without any significant disability. Permanent disability was not anticipated by Dr. Sabatier, but he did, according to Ike’s testimony prescribe further treatment for the back sprain:

“Q. When he discharged you were you still taking pills or using any kind of treatment?
A. Yes, ma’am.
Q. What were you doing?
A. I was taking some pain pills, bathing in hot water twice a day, sleeping on plywood.
Q. Were you still wearing the brace?
A. Yes, ma’am, have it on now.'
Q. Did he know at that time that you were, at the time he discharged you you were still sleeping on plywood and wearing the brace ?
A. He’s the one told me to do it.
Q. To continue doing it?
A. He told me, said that was the best treatment he knew for it, that plywood and hot water.”

Ike was examined on September 13, 1966 by Dr. Hansen who still did not pinpoint the exact cause of the back ailment, but did state that his findings were essentially the [206]*206same as those of his December 3, 1965 examination. Dr. Hansen noted that there persisted a right lumbar muscle spasm, felt that Ike had an orthopedic condition, and referred him to Dr. Loupe.

On September 15, 1966, Dr. Loupe examined Ike, had x-rays taken, and made a diagnosis of traumatic arthritis which was later withdrawn on the basis of more recent x-rays taken by Mr. Mal en'who attended Ike for x-ray purposes only. Dr. Loupe’s present diagnosis is that Ike suffers from a chronic lumbosacral sprain, although this diagnosis was made without the benefit of an examination subsequent to that of September 15, 1966. Dr. Loupe testified that Ike was not suffering intense pain at the time of his examination, but did state that plaintiff suffered discomfort on movement. At the trial, Dr. Loupe stated that Ike is incapable of performing heavy manual labor.

The trial judge reviewed the evidence and the testimony of Doctors Chesnutt, Sa-batier, Hansen, and Loupe and concluded:

“ * * * In view of the superior weight of the supporting medical testimony, the Court is of the opinion that Louis Ike, Sr., sustained a low back injury as a result of the accident and this injury disabled him to such an extent that he could not perform work of a similar nature to that which he had done before * * * ”

Where a question of fact is involved, the trial court should be reversed only where the appellate court feels that there was manifest error. Walker v. National Union Fire Ins. Co. of Pittsburgh, Pa., La.App., 178 So.2d 449; Bindewald v. Gurtler, Hebert & Company, La.App., 112 So.2d 746; Harness v. Toye Bros. Yellow Cab Co., La.App., 170 So.2d 737; Ferguson v. Belcher and Son, 230 La. 422, 88 So.2d 806; Boyle v. Travelers Insurance Company, La.App., 157 So.2d 471, writs refused 245 La. 574, 159 So.2d 286.

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Related

Armstrong v. American Piling of Louisiana, Inc.
258 So. 2d 658 (Louisiana Court of Appeal, 1972)
Ike v. Home Indemnity Co.
239 So. 2d 732 (Louisiana Court of Appeal, 1970)

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Bluebook (online)
205 So. 2d 203, 1967 La. App. LEXIS 4854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ike-v-home-indemnity-co-lactapp-1967.