Latin v. Hica Corp.

384 So. 2d 479, 1980 La. App. LEXIS 3796
CourtLouisiana Court of Appeal
DecidedMay 6, 1980
DocketNo. 14122
StatusPublished
Cited by4 cases

This text of 384 So. 2d 479 (Latin v. Hica Corp.) 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
Latin v. Hica Corp., 384 So. 2d 479, 1980 La. App. LEXIS 3796 (La. Ct. App. 1980).

Opinion

MARVIN, Judge.

In this worker’s compensation suit, the employee, who was paid disability benefits for 54 weeks until his doctor released him to return to work, appeals a judgment rejecting his demands for total disability benefits, contending that he is unable to work because of pain. We reverse.

The problems that arise in proving a claimant is disabled because of pain here or in any case are similar to the problems that arise in proving a causal relation between accident and disability. See Malone-Johnson, “Worker’s Compensation”, 2d Ed., La. Civil Law Treatise, Vol. 13, § 288, p. 673. [480]*480In such cases there has been an increased willingness by the courts to accept the testimony of the claimant as sufficient proof.

“This concept has been expressed in various ways, but they all seem to contain two essential elements for acceptance of the claimant’s testimony as persuasive. First, there must be no other evidence sufficient to discredit or cast serious doubt upon the claimant’s version of the event. And second, his testimony must be corroborated by the circumstances following the alleged event.” Malone-Johnson, supra, § 253, pp. 550-551. (footnotes omitted)
“At times, however, . . . the evidence may fail to show that at the time of trial there was any objective symptom to account for the claimed impairment of function or the pain. But recovery is not arbitrarily denied in such cases. The Act requires only that ‘there are or have been objective conditions of symptoms proven.’ The proof of the occurrence of the accident itself usually satisfies this requirement. Thus the subsequent disappearance of all observable cause for complaint does not defeat the claim if there is satisfactory testimony by medical experts that the complaint is genuine. This is almost always true, of course, of hysteria and traumatic neuroses. As a general rule, the courts are reluctant to brand the plaintiff as a malingerer .
“Lay testimony may often be adduced on the question of pain. Assuming that working in substantial pain will continue to be a foundation for a disability award under the new standard for disability, a claimant may find it necessary to establish the fact of pain. This will usually be done through the testimony of the complainant and his relatives and friends, supported by the evidence of the experts that the objective conditions are of a character expected to produce pain.” Malone-Johnson, supra, § 288, pp. 678-679. (footnotes omitted)

In Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977), the court reiterated this standard of proof.

“Whether pain is substantial enough to be disabling is an issue to be determined by a preponderance of the medical and lay evidence.” 342 So.2d 597

In no case should we place a duty on a compensation claimant to prove his or her entitlement to benefits by more than a preponderance of the evidence. An appellate court is not required by the manifest error principle or by the clearly wrong principle to affirm a trier of fact’s refusal to accept as credible, uncontradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for the rejection and where the factual finding was reached by overlooking applicable legal principles. See West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). This is true whether the issue be pain-eausing-disability or disability-caused-by-accident. Malone-Johnson, § 288.

On October 6, 1975, the employee slipped while at work and his right foot went into a shot blasting machine (called a Wheelabrator). This machine, which is used to abrade and clean steel, seriously injured the employee’s foot. After undergoing surgeries and treatments by several doctors, plaintiff, a maintenance helper, was released to return to work on October 20, 1976, by the orthopedist who first treated him and performed the initial surgery. This orthopedist released plaintiff with an estimated disability of 20 percent of the right leg or 30 percent of the right foot. The amount which would have been owed by the employer for the percentage loss of a member was less than the amount the employer paid plaintiff during the 54 week period.

Plaintiff’s foot was lacerated and torn by the machinery and shot blast. Flesh and skin were torn from the top of the foot, leaving bone and tendons exposed. The extensor tendons to second, third and probably the fourth toe were severed. Nerves were severed. He was hospitalized from October 6 to November 25,1975, and apparently on other occasions.

On October 24, 1975, a skin graft was taken from the body of plaintiff $nd applied to the foot. On January 26, 1976, [481]*481three neuromas (scarring of an injured or severed nerve) which were causing pain were surgically removed and the nerves were inserted into adjacent blood vessels to allow them an opening in which to grow.

This case was tried in 1979. Plaintiff testified that the pain in his foot becomes sharper upon exertion, standing for 15-20 minutes, walking for a block or two, and that he had attempted to work for approximately two or three days laying rugs and painting, but that he quit because these attempts caused him too much pain. Plaintiff said he had experienced pain in his foot since the time of the injury. Plaintiff’s testimony in this respect is corroborated by the medical evidence. The trial court summarized the corroborating testimony of plaintiff’s lay witnesses to the effect that the 27-year-old plaintiff was an active person and a good worker before his injury, but he has since failed to be active and complained that he is unable to work.

The trial court concluded that in the light of the opinions of four doctors that he could return to work, plaintiff’s claim of pain and disability had not been established.

Plaintiff was seen by four doctors. The medical reports of the orthopedist who first saw plaintiff and performed the initial surgery were introduced in lieu of the orthopedist’s testimony. Three doctors, a second orthopedist, a dolorologist (pain specialist) and a plastic surgeon testified.

These doctors, however, declined to label plaintiff as a malingerer or faker. Each doctor expressed a medical basis for some pain, but not as much as plaintiff complained of. These bases were impaired circulation, damaged nerves, skin graft adhering to a tendon, reflex sympathetic dystrophy, and possible anxiety. Each expressed an opinion that plaintiff should be able to or could return to his work wearing a “Hush-Puppy” type safety shoe.

Under these circumstances, the totality of the evidence, medical and lay testimony, establishes more than a mere claim of pain. The medical facts and opinion are uncontra-dicted that plaintiff had and still has impaired circulation, scarring, adhesions (adherence of skin graft to tendon), increased temperature of the injured foot not voluntarily produced, resulting in an anomaly called reflex sympathetic dystrophy which is hypersensitivity to stimuli, causing some pain. The doctors agreed that plaintiff was not a malingerer and that he was not faking. They agreed that the cause of plaintiff’s complaints was the accidental on-the-job injury. They generally agreed that plaintiff’s pain would probably lessen if he went back to work and that his foot would probably be strengthened and improved if he went back to work.

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

Related

LeBaron v. Louisiana Pacific Corp.
434 So. 2d 496 (Louisiana Court of Appeal, 1983)
Jones v. Alexander
399 So. 2d 216 (Louisiana Court of Appeal, 1981)
Lattin v. Hica Corp.
395 So. 2d 690 (Supreme Court of Louisiana, 1981)
Chipman v. Insurance Co. of North America
389 So. 2d 432 (Louisiana Court of Appeal, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
384 So. 2d 479, 1980 La. App. LEXIS 3796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/latin-v-hica-corp-lactapp-1980.