Killen v. Continental Ins. Co.

514 So. 2d 711, 42 Educ. L. Rep. 1016
CourtLouisiana Court of Appeal
DecidedOctober 28, 1987
Docket19056-CA
StatusPublished
Cited by9 cases

This text of 514 So. 2d 711 (Killen v. Continental Ins. 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
Killen v. Continental Ins. Co., 514 So. 2d 711, 42 Educ. L. Rep. 1016 (La. Ct. App. 1987).

Opinion

514 So.2d 711 (1987)

Linda Webb KILLEN, Appellant,
v.
CONTINENTAL INSURANCE COMPANY and Louisiana State University, Appellees.

No. 19056-CA.

Court of Appeal of Louisiana, Second Circuit.

October 28, 1987.
Rehearing Denied November 25, 1987.

Nelson, Hammons & Johnson by Walter D. White, Shreveport, for appellant.

Watson, Blanche, Wilson & Posner by Debra A. Templet, Baton Rouge, for appellees.

Before MARVIN, FRED W. JONES, Jr. and LINDSAY, JJ.

FRED W. JONES, Jr., Judge.

From a judgment awarding certain worker's compensation benefits but denying others plaintiff appealed, contending the trial judge erred in failing to award supplemental earning benefits and rehabilitation benefits, assigning only a 50% permanent partial disability rating, and failing to award penalties and attorneys fees.

Linda Killen was employed in August 1983 as a health and physical education instructor by Louisiana State University at Shreveport ("LSUS") for the forthcoming school year at an annual salary of $20,000. On October 24, 1983, while performing her teaching duties Mrs. Killen was struck in the temple by a student who was falling *712 from a balance beam. After experiencing some loss of consciousness, Mrs. Killen was taken to a hospital where she was treated for a concussion. The patient complained of double vision and headaches.

Mrs. Killen was hospitalized for four days and was off work until November 4, 1983, for which period worker's compensation benefits were paid.

After returning to work at LSUS, Mrs. Killen continued to experience double vision and had to limit her physical activities. She consulted Dr. Swearingen, a Shreveport ophthalmologist, on November 29, 1983. After an examination this physician made a diagnosis of constant diplopia, or double vision, in any field of gaze. Dr. Swearingen thereafter saw Mrs. Killen on a number of occasions. Following a consultation in February 1984, he referred her to Dr. Gunter Von Noorden of Houston, Texas, an ophthalmologist and specialist in strabismus (imbalance of ocular motor system). Dr. Von Noorden had treated Mrs. Killen several years before for eye problems, correcting the difficulty by surgery in 1979.

Because of continued double vision problems, Mrs. Killen was seen by Dr. Von Noorden in May 1984. In July 1984 Dr. Von Noorden performed surgery to correct the visual imbalance, but that procedure proved unsuccessful. Mrs. Killen remained in the hospital four days and then returned home to recuperate for two weeks.

In February 1984 Mrs. Killen had been informed by LSUS that her teaching contract would not be renewed at the end of the school year. In October 1984 she was employed as an elementary school librarian in Longview, Texas at an annual salary of $15,000 and continued this employment until May 1985. She was then employed as a third grade teacher in a Catholic school in Shreveport at an annual salary of $10,000.

Mrs. Killen filed this suit against LSUS and its insurer to recover worker's compensation benefits, penalties and attorney fees and trial was had in August 1985.

At the trial the 37 year old plaintiff testified she had a master's degree plus 18 hours from Louisiana Tech in health and physical education, and a minor in library science. She had eye problems as the result of an automobile accident in 1977, but those problems (also involving double vision) were resolved by surgery performed by Dr. Von Noorden in March 1979. No further eye problems were experienced until this accident in October 1983.

Mrs. Killen stated that since this accident she has suffered from double vision, headaches and nausea. As a result, she has been unable to teach physical education or engage in any work requiring that type of activity. She was granted a temporary teaching certificate in Texas but could not renew this employment because of her inability to arrange for completion of required course work for certification. Despite efforts to find another position as a school librarian, Mrs. Killen testified she was unsuccessful and was compelled to take the low paying position as an elementary teacher in the Shreveport private school. She allegedly lacked between 65 and 90 college hours to qualify as an elementary teacher in a state public school.

Dr. Von Noorden (testifying by deposition) stated that after the 1979 surgery Mrs. Killen apparently had remained free of eye problems until this accident. Following his May 1984 examination he concluded that Mrs. Killen suffered from a post-traumatic fusion deficiency, a condition about which little is known, though generally associated with some kind of head trauma. This problem, according to the doctor, is related not to the eye muscles, but to the neurological function of the fusion centers of the brain, about which the information is scarce.

Dr. Von Noorden operated on Mrs. Killen in July 1984 and resected the right lateral rectus muscle. After her discharge from the hospital Dr. Von Noorden saw Mrs. Killen again on August 16, 1984 and his initial diagnosis of post-traumatic fusion syndrome was confirmed.

This witness saw plaintiff again on November 6, 1984, at which time he clarified the date of her accident (about which incorrect information had been given to the insurance *713 company) and wrote the insurance company to clarify the record. Dr. Von Noorden saw Mrs. Killen again on March 19, 1985, and attempted to correct her eye problem with prisms. She returned on May 14, 1985 for the last time complaining of headaches, dizziness and nausea. She reported only temporary relief from the prisms and was still suffering from the same eye condition, though her condition seemed to be changing from extropia to estropia (eyes turning outward, then inward, with no apparent ability to keep them aligned).

Asked to give a prognosis, Dr. Von Noorden replied that this is a rare problem (only four cases in the literature), with the outcome difficult to predict. He had seen only 15 to 20 such patients and, while some tended to improve as they learned to accept and live with the problem, others did not. He believed Mrs. Killen's recovery would be long and drawn out, and her chances for improvement to the point of being visually comfortable not very good. It was Dr. Von Noorden's opinion that plaintiff should not return to her work as a physical education teacher since she would be in danger of another accident if she were to engage in activity requiring depth perception, which she lacks.

Dr. Swearingen testified that he had received no reports from Dr. Von Noorden concerning Mrs. Killen's surgery, but that plaintiff had returned to him on December 14, 1984 still complaining of double vision. Dr. Swearingen explained that post-traumatic fusion deficiency sometimes results after head trauma which causes an individual to have trouble "fusing" on an image, i.e. having difficulty focusing the eyes so that he sees one image rather than two, and is related to the brain center. Dr. Swearingen fitted Mrs. Killen with contact lenses in an attempt to correct her problem. The vision in one eye was blurred so that she would use the other, dominant eye. Mrs. Killen telephoned Dr. Swearingen several months later to report that she was still having eye problems and planned to return to Dr. Von Noorden.

In written reasons for judgment the trial judge ruled that plaintiff was entitled to temporary total disability benefits from July 10, 1984 (date of operation by Dr. Von Noorden) to October 10, 1984 (when she took the position as school librarian), and to medical expenses.

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Bluebook (online)
514 So. 2d 711, 42 Educ. L. Rep. 1016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/killen-v-continental-ins-co-lactapp-1987.