Johnston v. Delta Coating

822 So. 2d 830, 2002 La.App. 5 Cir. 115, 2002 La. App. LEXIS 2152, 2002 WL 1378830
CourtLouisiana Court of Appeal
DecidedJune 26, 2002
DocketNo. 02-CA-115
StatusPublished

This text of 822 So. 2d 830 (Johnston v. Delta Coating) 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
Johnston v. Delta Coating, 822 So. 2d 830, 2002 La.App. 5 Cir. 115, 2002 La. App. LEXIS 2152, 2002 WL 1378830 (La. Ct. App. 2002).

Opinion

_[gTHOMAS F. DALEY, Judge.

The plaintiff, Gill Johnston, has appealed the trial court’s ruling in favor of the defendants, Delta Coating and Fireman’s Fund, in this worker’s compensation case. For the reasons that follow, the judgment of the trial court is set aside and this matter is remanded to the trial court. FACTS:

The plaintiff was the only witness to testify at trial. He testified that he had been employed as a sandblaster for 16 to 17 years and had been working for Delta Coating for two years at the time of this incident. The incident occurred on December 30,^ 1999, when plaintiff was sandblasting pipe elbows. He testified that he had to pick up the elbows to place them on a pallet in order to properly perform the sandblasting. Mr. Johnston estimated the elbows weighed 65 to 100 pounds. each. He picked up two elbows without difficulty. Upon lifting the third elbow, he felt a|3pull in his back. He testified that when he picked up the fourth elbow, “something just went in my back.” He further explained “I fell forward, with the weight of the ... elbow in my hand.” He was un[831]*831able to breathe and stayed on the ground for some 15 to 20 minutes. The foreman on the job, Kenny Hartman, came to the scene and took plaintiff to see Dr. Clark. Plaintiff testified that Dr. Clark diagnosed a severe cervical strain and possible ruptured disc, and prescribed pain medication, muscle relaxers, and an anti-inflammatory drug.

Plaintiff testified that Kenny told him to stay home until January 2, 2000. He continued to experience pain and on January 13, 2000, he was examined by an orthopedist, Dr. Gordon Nutik. After seeing Dr. Nutik four to five times, he was released to return to light duty work. Plaintiff testified that he tried to go back to work on January 30, 2000, but there was no such thing as light duty at Delta. He had to climb stairs, lift heavy hoses, and carry five gallon buckets of paint. A couple of weeks later, he spoke to Joe Marshall (presumably a supervisor at Delta) about his difficulty in performing this type of work. Plaintiff testified that Mr. Marshall told him the only light duty they could offer was “running” but plaintiff was unable to do this because he did not have a driver’s license. Plaintiff admitted that he had not sought other employment. Because of the pain he experienced at work, he did not return to work after January 30, 2000.

Plaintiff continued to experience pain and Dr. Nutik referred him to Dr. Appleb-aum, a neurosurgeon. Plaintiff testified that he was told by Dr. Applebaum that nothing was wrong with him and he should go back to work, despite that fact that an MRI showed a herniated disc between the sixth and seventh cervical disc space.

In an effort to get some relief from his pain, plaintiff sought treatment from Dr. E.W. Sudderth on March 3, 2000. Plaintiff explained that Dr. Sudderth performed a |4more extensive examination than that of Drs. Nutik and Applebaum. During this examination, Dr. Sudderth detected a hernia in the left groin area. Plaintiff testified that this area had been hurting for a month or two after the incident. Plaintiff testified that Dr. Sudderth recommended certain tests be performed, but these were not performed because the worker’s compensation insurance carrifer, Fireman’s Fund, refused to pay for them. He testified that he would like to have this hernia repaired. Plaintiff further testified that he had to stop seeing Dr. Sudderth because Fireman’s Fund would not pay for the visits.

Plaintiff also testified that he was examined by Dr. Katz and Dr. Smith, both of whom suggested he have a functional capacity evaluation and attend a work hardening program. These recommendations were not followed because Fireman’s Fund refused to pay for them. Plaintiff sought treatment at Charity Hospital where he was referred to a neurosurgeon. Physical therapy was recommended, but again, Fireman’s Fund refused authorization. Plaintiff also sought treatment at East Jefferson General Hospital because of pain from his neck, low back, and hernia.

The deposition of Dr. Sudderth was admitted into evidence. He testified that he was board qualified in general surgery and board certified in cosmetic surgery. Dr. Sudderth testified that plaintiff told him he was injured while picking up heavy pipe elbows. He complained of pain in the lumbar and cervical spine with any range of motion and while sleeping. He also complained of severe occipital headaches. Upon examination, Dr. Sudderth noted pain upon palpation in the abdomen and all areas of the spine. Dr. Sudderth noted pain in the left testicle. After reviewing the MRI and x-rays, Dr. Sudderth diagnosed plaintiff as having a herniated nucleus pulpos in the cervical spine, lumbosacral [832]*832spasm, headaches, and a left inguinal hernia. Dr. Sudderth explained that the MRI showed a herniated disc at the space between | ^cervical vertebrae six and seven. He explained that the inguinal hernia is a protrusion of abdominal contents down into the scrotum brought on by an increase in intra abdominal pressure either through sudden or chronic strain. Dr. Sudderth attributed the back and neck injuries, as well as the hernia, to the December 30, 1999 incident. Dr. Sudderth recommended plaintiff have a CT scan performed and referred him to a neurologist and an orthopedist. He disagreed with the recommendation of Drs. Nutik and Applebaum that plaintiff return to work, explaining that the hernia could become strangulated, which could cause a life-threatening situation.

Five medical reports by Dr. Nutik were admitted into evidence. In a report dated January 7, 2000, Dr. Nutik stated plaintiff complained of low back pain radiating to the neck after picking up pipe. Dr. Nutik opined plaintiff sustained a soft tissue strain of the low back and possibly mid-back and neck. He prescribed pain medication, a muscle relaxant, and an anti-inflammatory drug, as well as physical therapy. On the next visit, Dr. Nutik noted that plaintiff requested an MRI of his neck. Dr. Nutik refused this request explaining that it did not seem likely that the neck was injured based on the description of the injury. He noted plaintiffs low back pain was improving and recommended physical therapy be continued. Dr. Nutik released plaintiff to return to light duty work on January 17, 2000. In a report dated February 7, 2000, Dr. Nutik stated that plaintiff had a lot of subjective complaints without physical findings of an objective nature to explain the cause of these complaints. Dr. Nutik stated plaintiff could do light duty work and limit lifting to 20 pounds and no climbing. Dr. Nutik ordered MRIs of plaintiffs lumbar and cervical spine. In a report dated February 18, 2000, Dr. Nutik noted the MRI of the lumbar spine was normal, while the MRI of the cervical spine showed a disc herniation at the spaee between the sixth and seventh cervical vertebrae. Dr. Nutik continued to report | fithat plaintiff was capable of performing light duty work. He referred plaintiff to Dr. Applebaum, a neurosurgeon, on February 17, 2000. Finally, in a report dated April 30, 2000, Dr. Nutik stated that he reviewed Dr. Sudderth’s records and did not agree that plaintiff needed a CT scan because no additional information would be obtained since plaintiff already had an MRI. He again stated that plaintiff was capable of performing light duty work.

Two reports from Dr. Robert Appleb-aum were admitted into evidence. In a report dated February 18, 2000, Dr. Ap-plebaum stated that plaintiffs physical examination showed no significant mechanical or neurological findings.

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Bluebook (online)
822 So. 2d 830, 2002 La.App. 5 Cir. 115, 2002 La. App. LEXIS 2152, 2002 WL 1378830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-delta-coating-lactapp-2002.