Levier v. American Employers Insurance Co.

228 So. 2d 225, 1969 La. App. LEXIS 5845
CourtLouisiana Court of Appeal
DecidedOctober 30, 1969
DocketNo. 2830
StatusPublished

This text of 228 So. 2d 225 (Levier v. American Employers Insurance 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
Levier v. American Employers Insurance Co., 228 So. 2d 225, 1969 La. App. LEXIS 5845 (La. Ct. App. 1969).

Opinions

MILLER, Judge.

The trial court held that plaintiff was disabled at the time of the trial and this disability resulted from the accident. Plaintiff Levier was awarded $12,000 for his disability, past and present, including pain and suffering, together with $4,335.61 in medical expenses incurred in his treatment.

Defendant concedes liability (his insured rearended the vehicle in which plaintiff was a passenger) but appealed contending that plaintiff failed to prove that his psycho-neurotic reaction, depressive reaction, resulted from the June 10, 1965 automobile accident, and therefore the award was excessive.

Plaintiff entered a separate appeal requesting an increase in the award of damages.

Since plaintiff’s present psychiatric disability is conceded by all three psychiatrists, the essential issue raised by defendant appellant is whether or not the disability was caused by the June 10, 1965 accident.

Plaintiff’s original treating physicians were Doctors D. J. deBlanc and Charles N. Washington, both general practitioners of Opelousas. Plaintiff’s injuries were described as a severe contusion of the right shoulder and the right clavicle. Pieces of broken glass were found in his scalp. He had a cerebral concussion; a large contused area in the occipital area; myofascial ligamentous sprain of the neck and a contused area on his chest. According to the history, the contused area in the occipital area resulted from a heavy tool box striking plaintiff on the back of the head during the accident. X-rays were negative..

On the July 16, 1965 examination, plaintiff had severe headaches and “there was radiation of pain in the right arm * * * from the cervical region.”

Plaintiff was actively treated by Dr. deBlanc for his physical complaints until November 11, 1965, when Dr. deBlanc discharged him from active treatment. Up to that time, Dr. deBlanc was of the opinion that plaintiff could not return to work because of his physical disability. Even as of November 11, 1965, Dr. deBlanc did not think plaintiff could return to work, but he did think that at some time in the future, plaintiff would be able to return to work.

Dr. Washington treated plaintiff on occasions when Dr. deBlanc was otherwise occupied. It was his opinion on November 11, 1965 that plaintiff could not return to work. As of January 25, 1966, Dr. Washington noted that plaintiff continued to have back pain, headaches, and numbness in the right leg. He then referred plaintiff to an orthopedic surgeon for evaluation.

Dr. George Schneider, orthopedic surgeon of Lake Charles, and Dr. Luke Bordelon, orthopedic surgeon of Opelousas, both agreed that there was no physical basis for plaintiff’s complaints.

Dr. Washington examined plaintiff on April 19,1966 and made the following memorandum : “The patient returned today continuing to complain of pain in his back and headaches. Physical examination is essentially negative. It is my impression that the patient at this point is recovered from the injuries sustained in this accident, but continues to have the pain on the basis of conversion reaction and is still disabled at this time. I recommend that the patient be evaluated by a psychiatrist and the therapy which he feels indicated be given. * * * ” That was the last time that Dr. Washington saw plaintiff as a patient.

Plaintiff was seen by Dr. John A. Fisher, psychiatrist of Lafayette on May 2, 1966. His complaints were mild dizziness and low back pain. At Dr. Fisher’s suggestion, plaintiff sought light work. From July 8, 1966 until February 24, 1967, plaintiff did farm labor. Dr. Fisher did not believe that plaintiff could return to his original employment at that time. Plaintiff’s farm employer had to shift him from one job to another which is in keeping with a finding that he could not then return to his construction trade. Even though plaintiff was [227]*227doing some farm work and was improving, Dr. Fisher diagnosed “a mixed psychoneurosis with symptoms of both anxiety and depression, and perhaps some conversion symptoms.” In Dr. Fisher’s opinion, this condition was “in all probability” caused by the accident. Plaintiff was placed on antianxiety type medication, and was kept on these medications throughout the seven visits, the last of which occurred on November 18, 1966. Plaintiff was not discharged at that time, but Dr. Fisher then retired from private practice to take a government position. His practice was taken over by Dr. David Regan in January of 1967.

Dr. Regan first saw plaintiff on January 17, 1967 when plaintiff returned for a previously scheduled appointment. Dr. Regan referred to Dr. Fisher’s notes, took the patient’s history and examined plaintiff. Plaintiff complained of dizziness and pain and trembling in the neck. He was lethargic, and unable to work. Plaintiff was diagnosed as “psychoneurotic reaction, depressive reaction.” Vol. Ill, p. 84. Plaintiff’s condition deteriorated and on February 20, 1967, plaintiff was hospitalized. He was then lethargic, having memory loss, incoherent in his speech, and displayed suicidal tendencies. Plaintiff was given six electroshock treatments while hospitalized, and was released on March 3, 1967. On March 14, 1967, plaintiff started a series of 15 additional electroshock treatments as an outpatient, which terminated on May 5, 1967.

Plaintiff was still apathetic and suffering from a loss of memory. Dr. Regan described him as “severely depressed and severely impaired in his functioning, and totally disabled.”

The trial of the case was not completed in the first two days allotted for it. During the interim period, Dr. Regan continued to treat plaintiff. On January 3, 1968, plaintiff’s medication was increased and additional electroshock treatments were scheduled. As of February 14, 1968, plaintiff had received eight more electroshock treatments which resulted in some improvement, but his memory remained poor.

At the final day of the trial, March 14, 1968, Dr. Regan opined that plaintiff’s chances for total recovery were less than fifty percent. Dr. Regan ruled out the possibility of organic brain damage, referred to in the record as a chronic brain syndrome.

Dr. Regan was informed on cross-examination that at one time plaintiff was a heavy drinker and that he had suffered from prostatitis. It was defendant’s position that these problems could account for plaintiff’s symptoms. Even after rigorous cross-examination, Dr. Regan maintained his opinion that this was a case of traumatic neurosis caused by the accident of June 10, 1965. Dr. Regan admitted that it was possible, but contended that it was improbable, that plaintiff’s present mental difficulties were related to his earlier drinking problem, his prostatitis, or the anxiety related to the possible settlement or trial of this case.

In conrast to Dr. Fisher and Dr. Regan, Dr. Thomas Rafferty, psychiatrist of New Orleans, concluded that plaintiff’s psychiatric disability was not caused by the accident of June 10, 1965. He first examined plaintiff on January 25, 1967, at which time plaintiff complained of spinning in his head, and a backache. Plaintiff told Dr. Rafferty he was not depressed and Dr. Rafferty did not find him to be depressed. Dr. Rafferty concluded that plaintiff was exaggerating his condition and was probably malingering. Dr. Rafferty did not know that plaintiff was then under treatment by another psychiatrist and was then taking medication. On being informed of these facts, he stated that this did not change his opinion in any way.

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Bluebook (online)
228 So. 2d 225, 1969 La. App. LEXIS 5845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levier-v-american-employers-insurance-co-lactapp-1969.