Joffrion v. Sears, Roebuck and Co.

272 So. 2d 725, 1973 La. App. LEXIS 6855
CourtLouisiana Court of Appeal
DecidedJanuary 29, 1973
DocketNo. 4052
StatusPublished
Cited by2 cases

This text of 272 So. 2d 725 (Joffrion v. Sears, Roebuck and 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
Joffrion v. Sears, Roebuck and Co., 272 So. 2d 725, 1973 La. App. LEXIS 6855 (La. Ct. App. 1973).

Opinion

FRUGÉ, Judge.

This is an appeal from a judgment awarding plaintiff, Sidney S. Joffrion, Jr., workmen’s compensation benefits at the rate of $49.00 per week for the period of his disability, not to exceed 500 weeks, with legal interest on past due installments for medical expense benefits allowed by law and for costs. Defendant-appellant, Sears, Roebuck and Company, contends that the trial court erred: (1) in finding that the plaintiif-appellee suffered a com-pensable injury in the course and scope of his employment with the defendant-appellant, (2) in finding a connexity between the plaintiff’s present disability and any accidental injury he may have suffered while working in the course and scope of his employment for defendant-appellant, and (3) in failing to sustain the defendant-appellant’s plea of prescription. The only medical testimony presented at the trial was that of plaintiff’s treating physician and the orthopedic specialists to whom he was referred by his treating physician. After reviewing their testimony and the testimony of five of plaintiff’s disinterested co-workers, we can find no manifest error in the trial judge’s finding of fact. We agree with this legal conclusion on the issue of prescription. Accordingly, we affirm.

Mr. Joffrion is 32 years old. He was originally employed by Sears in 1963, immediately after he left college. By January of 1968, he had risen to the position of manager of the Sears store in Natchitoch-es, Louisiana, where he remained until he voluntarily terminated his employment on November 16, 1970. His salary while working for Sears was $700.00-$800.00 per month. Mr. Joffrion’s wife and five of his former subordinates at Sears testified in his behalf. Mr. Joffrion also testified. Medical testimony was elicited (either at the trial or through depositions offered at the trial) from Mr. Joffrion’s personal physician and two orthopedic specialists. Since the testimony of the law witnesses is mutually consistent, we will state the facts in a narrative form instead of summarizing each witness’s testimony separately.

The record shows that prior to January, 1970, plaintiff lived a healthy, vigorous life. He was very active around his home, engaging in lifting, building, and furniture-moving activities. He enjoyed hunting and fishing and often fished from dawn until dark. In addition to his managerial duties at the store, he actively assisted his subordinates in the execution of their jobs. He often helped the porter and service personnel stack heavy appliances in the warehouse to provide more storage space and move heavy appliances around the display area or back to the warehouse. He also helped service personnel repair electrical and gasoline-driven appliances, as well as helping them make deliveries of appliances which were too heavy for them to deliver alone. He helped install appliances and helped customers carry heavy items to their cars.

In January of 1970, Mr. Joffrion was helping the porter carry a go-cart from the sales area back to the warehouse when he slipped and fell. He attempted to retain control of the go-cart in order to keep it from falling. In so doing, he injured his back. Plaintiff testified that “something just popped and it started hurting in my back.” The porter testified that the plaintiff fell and grabbed his back. Another employee testified that about the time of the go-cart incident the plaintiff remarked to him that he had hurt his back. Mr. Jof-frion went to his personal physician, Dr. Campbell, who prescribed an analgesic and a muscle relaxer. Although plaintiff knew that an accident report had to be filed, he was not familiar with the exact time period within which it had to be filed. He did [727]*727not file an accident report until February 19, 1970. The assistant manager testified that there was normally some delay in filing accident reports from the Sears store, although one month was a little longer than usual. Mr. Joffrion had residual pain for a week to ten days during which he needed medication. The plaintiff’s back remained stiff at times, but he never missed work. However, he altered his work habits and attempted to do as little moving, lifting, or straining as possible. Occasionally he would attempt to deliver merchandise to a customer’s home or car. On these occasions his back would begin hurting in the same place that it did before and he would have to take medication.

The testimony of Mrs. Joffrion and Jof-frion’s co-employees show a vigorous, active life before the January, 1970, accident. Mrs. Joffrion testified that after the 1970 accident he stopped helping around the house and fished for shorter periods because he had trouble sitting in a boat. His pain recurred and he complained more frequently as time progressed.

Joffrion’s co-employees found a marked change in his activities after January, 1970. Five co-employees testified in plaintiff’s behalf. We find the testimony of the three male employees very significant. Prior to January, 1970, he actively assisted them in the strenuous physical aspects of their jobs as described above. These men, who were around him most often when he engaged in strenuous, physical activity, testified that he had never complained about his back prior to January, 1970. After the January incident, he refused to help with jobs that required lifting or straining because his back hurt. He occasionally complained that he had hurt his back again or merely that his back was hurting him. On occasion, Joffrion would attempt to help with light lifting, but he would be very careful in doing it.

Sometime in the summer of 1970, Jof-frion on two occasions hurt his back in the same place while trying to move appliances to the customer’s car. After the second occasion he called his doctor for medication, but he did not make an appointment. Dr. Cook, who is Dr. Campbell’s associate, testified that in the summer of 1970 Jof-frion called him from work, stated that he was dizzy and having back pains, and asked for a prescription. Dr. Cook remembered this phone call because Joffrion reacted violently to Cook’s suggestion that he might want to take X-rays and have a report prepared for insurance purposes. Mrs. Hennigan, an employee at the Sears store, was near Joffrion’s office and overheard Joffrion’s side of the conversation. She corroborated both Joffrion’s and Cook’s testimony that Joffrion had hurt his back and called Cook about the problem.

Joffrion did not file an accident report on the last two accidents. After each of these occurrences, his back bothered him for approximately a week or ten days. After the latter incident, he attempted to refrain from lifting or pushing even more than before. However, at times, when there was no other male employee nearby, he still helped customers or sales clerks.

Joffrion resigned on November 16, at which time he mentioned to C. D. Steuben, District Manager, that he was having problems with his back. He asked Steuben if personnel would take care of him. He mentioned the accident report on the January incident, but did not mention his later accident.

After leaving Sears, he began selling insurance with Farm Bureau. The job entailed almost no physical activity, but it did require driving approximately 500 to 600 miles a week and talking to five or six customers a day. His back pains continued to recur from time to time, depending upon the amount of physical activity he was engaged in.

In April of 1971, Joffrion bent over to tie his shoe and was immediately seized by a severe pain in the same location in his back. Dr. Campbell referred plaintiff to Dr. Overdike, an orthopedic specialist, [728]

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

Related

Hebert v. Hartford Accident & Indemnity Company
331 So. 2d 222 (Louisiana Court of Appeal, 1976)
Bourgeois v. Brown & Root, Inc.
303 So. 2d 217 (Louisiana Court of Appeal, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
272 So. 2d 725, 1973 La. App. LEXIS 6855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joffrion-v-sears-roebuck-and-co-lactapp-1973.