Johnson v. Ins. Co. of N. America

454 So. 2d 1113
CourtSupreme Court of Louisiana
DecidedJune 25, 1984
Docket83-C-2628
StatusPublished
Cited by126 cases

This text of 454 So. 2d 1113 (Johnson v. Ins. Co. of N. America) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Ins. Co. of N. America, 454 So. 2d 1113 (La. 1984).

Opinion

454 So.2d 1113 (1984)

Raymond JOHNSON
v.
INSURANCE COMPANY OF NORTH AMERICA and Louisiana Seed Company, Inc., et al.

No. 83-C-2628.

Supreme Court of Louisiana.

June 25, 1984.
Rehearing Denied September 14, 1984.

*1115 Howard N. Nugent, Jr., Alexandria, for plaintiff-applicant.

Albin A. Provosty, Michael Glass, Alexandria, for defendants-respondents.

WATSON, Justice.

In this suit for workers' compensation benefits, the issues are:

(1) Whether the trial court was clearly wrong in finding plaintiff, Raymond Johnson, disabled at the time of trial; and
(2) Whether the defendant insurer, Insurance Company of North America, was arbitrary and capricious in terminating benefits, making it liable for penalties and attorneys' fees.

FACTS

On July 23, 1981, while employed by defendant, Louisiana Seed Company, Inc., Raymond Johnson, a twenty-one year old forklift operator, had his right leg caught between the machine and a wall because of a clutch malfunction. Johnson was admitted to Rapides General Hospital with abrasions on his right leg, severe abrasions of both ankles, a closed fracture of the right tibia, and marked edema of the entire right leg. On July 28, Johnson was discharged from the hospital with a long leg cast and crutches. Although his hospital stay was uneventful, the toes on his right leg remained swollen the day before his discharge and he was complaining of left ankle pain on the day of his discharge. Johnson went to the ninth grade, but he cannot read well and does not have a driver's license. His employment duties included getting on and off the forklift frequently and moving bags.

After the accident, Johnson was referred to Dr. Douglas Lorin Gamburg, an orthopaedic surgeon, by Dr. William Brown. Dr. Gamburg said that the edema or swelling of the leg was normal with this type of crushing injury, and he was concerned about the swelling from the soft tissue injury to the right ankle. On November 23, despite some edema in the foot and enlargement at the fracture site, Johnson's fracture had healed and he seemed to be progressing satisfactorily. Dr. Gamburg suggested that he return to work on light duty status. Johnson returned to Dr. Gamburg on December 1 with swelling in his right leg; the doctor recommended support hose and no work for another two weeks. When Johnson returned to Dr. Gamburg on December 15, he still had swelling in the area of the fracture as well as in the right ankle. He had a mild limp which appeared related to pain and a tender enlargement over the area of the fracture. Because Johnson still had swelling and pain, Dr. Gamburg prescribed a few more weeks of convalescence. On January 8, 1982, Dr. Gamburg released Johnson for full duty, in the belief that he had reached maximum medical improvement. According to Dr. Gamburg, Johnson had no complaints at that time. In a letter to the insurance company's adjuster, Dr. Gamburg stated that he did not know what Johnson's regular work duties entailed and he admitted, in deposition, that he was also unfamiliar with those duties when he released Johnson to full employment. Relying on Dr. Gamburg's letter of January 8, 1982, the insurance company's claims manager, Mrs. Jean Sorsby, terminated compensation benefits.

After his discharge by Dr. Gamburg, plaintiff saw Dr. Thomas C. Laborde, an *1116 American Board certified specialist in the field of physical medicine and rehabilitation, on February 10, 1982. When Dr. Laborde saw Johnson the patient complained of pain in the right leg just above the ankle and in the ankle itself. The pain was characterized as a constant background type of pain. Johnson described it to Dr. Laborde as moderate and intermittent, depending on his degree of activity. In Dr. Laborde's opinion, Johnson's complaints were consistent with the reasonable and logical assumption that scar tissue had formed in the area of his soft tissue injuries.[1] Strenuous activity could have irritated and possibly aggravated the situation. At the time of his examination, he did not feel that Johnson was capable of returning to work as a forklift operator because active dorsiflexion of the ankle produced pain.

Dr. Laborde's report noted Johnson's complaints of pain and stated that his continuing difficulty likely resulted from soft tissue scarring, fibrosis, possible muscular deconditioning and tightness. He suggested a vigorous physical therapy reconditioning program. Subsequently, on May 4, 1982, the insurance company's claims supervisor received a demand letter from plaintiff's counsel, together with a copy of Dr. Laborde's report. However, the claims supervisor testified in deposition that she attached little importance to the report. She regarded Dr. Laborde as being a doctor with a lesser medical degree than that of Dr. Gamburg, and Dr. Laborde did not specify in his report that Johnson was disabled. However, Ms. Sorsby acknowledged a conflict between the reports of Dr. Gamburg and Dr. Laborde. Compensation was not reinstated or brought up-to-date and no effort was made to obtain a new evaluation of Johnson's condition. The recommended physical therapy was not authorized. Suit was filed immediately, and the therapy was subsequently allowed after consultation with defense counsel.

Dr. Laborde's deposition was taken on September 30, 1982, just over a month before trial. He had received regular reports from the physical therapist, the last one dated July 30. These reports indicated that Johnson had made progress and was having less pain with active motion.

Upon referral from Dr. Laborde, Eugene F. Noel, Jr., a registered physical therapist, saw Johnson in his clinic on June 23, 1982, and instituted a program of physical therapy. At Noel's initial evaluation, there was swelling at the site of the fracture but not in the ankle. In Noel's opinion, a soft tissue crushing type injury takes longer to heal than a fracture. Johnson went regularly to therapy through July 8, 1982. He returned on July 19, 1982, and said that he had increased leg pain and returned again on the 20, 21, and 22 of July. As of the 22nd, Noel concluded that Johnson had reached maximum improvement from the therapy. Noel, who had tried Johnson's forklift, thought Johnson was functionally able to operate his forklift on July 22, 1982.

Raymond Johnson testified that he was hurting and his left leg was bothering him when he last saw Dr. Gamburg. As of trial, on November 5, 1982, he said that his leg still hurt all the time. Johnson identified a knot in his leg at the point of the fracture. According to Johnson, he went to the therapist until he was unable to get transportation. Despite the therapy, his problems with pain and swelling continued and his leg hurt everytime he went home from therapy. Johnson did not return to Dr. Gamburg after his discharge because he considered Gamburg a company doctor. According to Johnson, he was unable to work after his release by Dr. Gamburg and his supervisor was very unsympathetic.

Alton Laborde, supervisor of shipping and receiving with Louisiana Seed Company, said that when Johnson attempted to return to work he remained less than an hour before complaining of pain in his leg and leaving. According to Johnson's live-in companion, his leg was swollen and he complained of pain almost every day. A long time friend of Johnson, Donald Ray Smith, confirmed that the leg was swollen after *1117 the accident.

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Bluebook (online)
454 So. 2d 1113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-ins-co-of-n-america-la-1984.