Leonard v. Robin

550 So. 2d 197, 1989 La. App. LEXIS 1140, 1989 WL 60753
CourtLouisiana Court of Appeal
DecidedJune 8, 1989
DocketNo. 88-CA-1670
StatusPublished

This text of 550 So. 2d 197 (Leonard v. Robin) 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
Leonard v. Robin, 550 So. 2d 197, 1989 La. App. LEXIS 1140, 1989 WL 60753 (La. Ct. App. 1989).

Opinions

KLEES, Judge.

Defendants-appellants, The Hartford Insurance Company and Peter Robin (d/b/a Robin Seafood Company), appeal the trial court’s award of worker’s compensation benefits to plaintiff-appellee, Claude Leonard. We affirm.

This case arises out of a 1985 accident in which plaintiff allegedly injured his neck and back while lifting sacks of oysters during his employment at Robin Seafood Company. Based on plaintiff’s complaints of pain and in office physical examinations, Dr. Lucas DiLeo diagnosed plaintiff’s condition as cervical lumbar syndrome or structural damage to the disk in the lower back.

In February 1986, plaintiff filed a claim with the Louisiana Department of Labor Office of Worker’s Compensation stating he was injured on June 1, 1985 while employed at Robin Seafood Company. Based on the information submitted, the Office of Worker’s Compensation denied plaintiff’s claim.

On May 1, 1986, plaintiff filed suit for worker’s compensation benefits, medical expenses related to his injury, penalties and attorneys fees for defendants’ arbitrary and capricious refusal to pay worker’s compensation benefits. After a trial on the merits, the trial court rendered judgment in favor of plaintiff, finding him to be temporarily and totally disabled and awarding him benefits in the amount of $267 per week from December 18, 1985 until his disability ceases. The trial court further ordered defendants to pay all medical expenses related to plaintiff’s injury but denied plaintiff’s request for penalties and attorneys fees. It is from this judgment that defendants appeal.

On appeal, defendants first argue that the trial court erred when it found that plaintiff was injured in a work related accident on December 18, 1985. -We disagree.

In his petition for worker’s compensation benefits, plaintiff avers that he first injured his back while employed at Robin Seafood on June 1, 1985 when moving a pallet jack loaded with oyster sacks. He further avers that he severely reinjured his back on December 17, 1985 at Robin Seafood as he loaded oyster sacks from a dock onto pallets.1

Defendants contend that plaintiff failed to report either incident to his employer and that the only evidence plaintiff offered to prove that the alleged accident occurred was his own testimony and that of his brother-in-law, Leroy Johnson, 'also an employee of Robin Seafood.

Plaintiff testified at trial that on June 1, 1985 he and another worker, June Bailey, were loading pallets of oyster sacks onto a truck when he slipped and fell on his buttocks. He stated he missed three or four days of work following the incident. Plaintiff then returned to work, and on July 6, 1985 he was fifed when he failed to timely deliver a shipment of shrimp. Plaintiff stated a month later he returned to Robin Seafood and asked Peter Robin, the owner, [199]*199for his job back. Mr. Robin granted plaintiffs request. Plaintiff worked for a few more weeks and in August took off from his job in order to have surgery to remove a fatty tumor from his back. He then went back to work in December 1985. On December 18, 1985, plaintiff claimed he and Leroy Johnson were loading sacks of oysters from the dock onto pallets when he lifted a sack which weighed between 60 and 75 pounds and hurt his back. He further stated that he went to the main office and told his boss, Chris Robin, that he hurt his back, who told him to go home. Tony Fernandez, a friend of the plaintiff and a shrimper for Robin Seafood, gave plaintiff a ride to his mother’s home about a mile and one-half away. Plaintiffs mother then called the St. Bernard Emergency Medical Unit for an ambulance. Because the ambulance was slow in arriving, a relative brought plaintiff to Violet to meet the ambulance which then took him to Charity Hospital in New Orleans. Plaintiff remained in the Charity Hospital emergency, room for over 13 hours with an IV in his arm. While at Charity, doctors performed a CT-scan and myelogram on plaintiff.

Leroy Johnson, plaintiffs brother-in-law, also testified on plaintiffs behalf. He testified that he witnessed plaintiff lifting the oyster sack on December 18, 1985 when plaintiff stopped, dropped the sack and fell back. Mr. Johnson stated that plaintiff told him he hurt his back. Mr. Johnson also stated that he recollected plaintiff injuring his back in June or July of 1985 while they were working together loading oysters. He further testified that he saw plaintiff leave with Tony Fernandez after he injured his back on December 18.

Tony Fernandez testified that although he did not see plaintiff hurt his back while lifting sacks, he saw him on the dock and noticed plaintiff walked funny. He stated plaintiff told him he hurt his back. Mr. Fernandez then offered and gave plaintiff a ride to his mother’s home.

The emergency medical technician who administered care to the plaintiff in the ambulance also testified at trial. William Follette stated that he filled out the medical form on plaintiff. Although he could not recollect whether or not plaintiff told him that he injured his back in an accident, he did testify that plaintiff told him that he was experiencing numbness in his face and in the left side of his body. Mr. Follette testified that he attended to the plaintiff during the ride from Violet to Charity Hospital.

Although plaintiff may have injured his back in June or July of 1985, we do not find there was enough evidence presented at trial to indicate that this injury occurred at Robin Seafood. However, we do find that the trial court did not err in finding that plaintiff was in a work related accident in December 1985. There is ample evidence before us which shows that plaintiff did injure his back while lifting sacks of oysters at Robin Seafood on December 18, 1985. The trial court’s finding is entitled to great weight and should not be disturbed unless it is clearly erroneous. Hookfin v. Schwegmann Bros., 398 So.2d 1218 (La.App, 4th Cir.1980).

The defendants also contend that the trial court erred in finding that plaintiff is temporarily totally disabled.

In proving a claim for temporary total disability, the plaintiff has the burden of establishing her claim to a legal certainity and by a reasonable preponderance of the evidence. Bailey v. Zurich American Insurance Company, 503 So.2d 611 (La. App. 4th Cir.1987). When claiming a total disability, whether permanent or temporary, the plaintiff must prove his inability to engage in any gainful occupation whether or not the same or similar to that in which he was customarily engaged when injured. Connelly v. Buck Kreihs Co., 463 So.2d 725 (La.App. 4th Cir.1985). In doing so, the plaintiff may rely on medical and lay testimony. Simpson v. Kresge Co., 389 So.2d 65 (La.1980).

The medical evidence presented by the plaintiff includes the deposition of Dr. Lucas DiLeo and the trial testimony of Drs. Milton Rosenkrantz and Raeborn Llewellyn.

[200]*200Unable to testify at trial, Dr. DiLeo was deposed and his testimony perpetuated for trial purposes. Dr. DiLeo, a general practitioner, testified that he first treated plaintiff for his back ailment on December 30, 1985. Although plaintiff failed to give him a history of his injury at that time, DiLeo stated that plaintiff complained of severe headaches on the left side of his head, pain in his lower back and left leg. He also noted that plaintiff walked with a limp and used a cane. Dr.

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Related

Simpson v. SS Kresge Co.
389 So. 2d 65 (Supreme Court of Louisiana, 1980)
Bailey v. Zurich American Ins. Co.
503 So. 2d 611 (Louisiana Court of Appeal, 1987)
Connelly v. Buck Kreihs Co.
463 So. 2d 725 (Louisiana Court of Appeal, 1985)

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Bluebook (online)
550 So. 2d 197, 1989 La. App. LEXIS 1140, 1989 WL 60753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leonard-v-robin-lactapp-1989.