Lewis v. Rapides Parish School Board

430 So. 2d 388, 1983 La. App. LEXIS 8415
CourtLouisiana Court of Appeal
DecidedApril 13, 1983
DocketNo. 82-799
StatusPublished
Cited by2 cases

This text of 430 So. 2d 388 (Lewis v. Rapides Parish School Board) 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
Lewis v. Rapides Parish School Board, 430 So. 2d 388, 1983 La. App. LEXIS 8415 (La. Ct. App. 1983).

Opinion

CUTRER, Judge.

This is a suit for workmen’s compensation benefits in which the plaintiff, Catherine Monk Lewis, alleges that she injured her back while at work on April 8, 1981, and [389]*389that, as a result of this injury, she is totally disabled. At the time of the incident plaintiff was employed as an instructing registered nurse by Rapides Parish School Board (School Board).

Select Insurance Company (Select) was the workmen’s compensation insurance carrier for the School Board on the date of this incident. Select, along with the School Board, was made party-defendant.

The trial court rendered judgment in plaintiff’s favor determining her disability to be total and permanent and awarding the appropriate benefits. The trial court’s judgment additionally ordered the School Board and Select to pay plaintiff $1,245.67 as medical and travel expenses, and to pay a penalty of twelve percent on the following unpaid or untimely paid items: $25.00; $42.84; $1,707.00; $2,342.85 and $7,102.14. Further, the judgment ordered Select to pay $7,500.00 in attorney’s fees.

The School Board and Select have appealed presenting the following issues:

(1) Whether the trial court erred in holding the plaintiff was disabled during the time she returned to work as a nurse at Lake Charles Memorial Hospital;
(2) Whether the trial court erred in awarding the plaintiff $1,155.00 for expenses of household help while she was recuperating from surgery; and
(3) Whether the trial court erred in finding the defendants were arbitrary and capricious in their failure to compensate plaintiff and, in the event it is held that attorney’s fees are due, the defendants contend the award of attorney’s fees was excessive.

Plaintiff answered the appeal seeking an increase in attorney’s fees.

FACTS

Plaintiff is a twenty-eight year old registered nurse. At the time of the incident in question she was teaching a nursing course for the Rapides Parish School Board. This class encompassed academic and clinical instruction.

On the morning of April 8,1981, plaintiff and her class were at the Veterans Administration Hospital in Pineville, Louisiana, for clinical instruction. It is undisputed that on this morning plaintiff was demonstrating how to transfer an incapacitated patient from one place to another and, in doing so, plaintiff experienced a “grabbing” pain in her lower back. The pain subsided until almost an hour later when plaintiff was entering an automobile at which time she experienced pain in her lower back and upper right leg. Plaintiff made this experience known to one of her students.

Later that day plaintiff picked up her employer’s first report of injury form. School Board secretary, Judy Despino, dispensed the form to plaintiff that day and later delivered the completed form to Richard Sasser, the School Board director of personnel.

That same afternoon, plaintiff, eight months pregnant, reported the injury and pain to her obstetrician, Dr. William Long. He advised plaintiff not to have x-rays performed because of her pregnancy and not to return to work. With only one day of work remaining before she began her maternity leave, plaintiff returned to the classroom the day after the accident.

Plaintiff informed Sasser of her obstetrician’s advice to postpone the pursuit of a diagnosis of her back pain. She then told Sasser to hold her first report of injury until after the birth of her child.

Plaintiff was seen the day after the birth of her child by an orthopaedist, Dr. L. Donovan Perdue. His report reflected that plaintiff reported suffering back pain throughout her pregnancy which became worse after the incident in question. Dr. Perdue diagnosed possible lumbar disc bulge and continued to treat plaintiff until October 8,1981. This report, dated December 1, 1981, stated that plaintiff should be able to return to work, avoiding excessive bending and lifting.

Plaintiff and her family moved to Lake Charles, where plaintiff attempted to return to work on a part-time basis on December 19, 1981, at Lake Charles Memorial [390]*390Hospital. Plaintiff’s back pain made even this part-time work difficult.

The pain continued to increase. On February 11, 1982, plaintiff saw Dr. Clark A. Gunderson, an orthopaedic surgeon in Lake Charles. In his deposition Dr. Gunderson identified his initial impression of plaintiff’s trouble as a lumbar straining injury with nerve root irritation.

Dr. Gunderson next saw plaintiff on February 23, 1982, and suggested a hospital study. After various tests were performed plaintiff underwent surgery on March 10, 1982. Dr. Gunderson explained that he removed sixty to seventy percent of the width of a pedicle of the spinal canal on which a nerve had become impaled.

Dr. Gunderson assigned the plaintiff a twenty percent permanent partial disability. He recognized plaintiff’s need to return to work but recommended that she avoid repetitive lifting, climbing, bending and stooping.

Suit was filed on November 16, 1981. Judgment was rendered October 6, 1982. This appeal followed.

DISABILITY

The School Board and Select allege the trial court erred in holding that plaintiff was disabled during the time she worked as a nurse at Lake Charles Memorial Hospital (December 19, 1981 — February 7, 1982). The School Board and Select base their contention on plaintiff’s employment application at Lake Charles Memorial Hospital. In this application plaintiff identified her back trouble but stated she did not have any physical limitations. Plaintiff stated her doctor had released her regarding this incident and plaintiff further classified her present health as “excellent.”

Additionally, the School Board and Select point to employment records of Lake Charles Memorial Hospital which fail to identify any problems or limitations with plaintiff’s work.

The trial court’s reasons for judgment explained its finding of total permanent disability, including the period of December 19, 1981 through February 7, 1982. The reasons properly dispose of Select’s first issue as follows:

“The court was impressed by plaintiffs sincerity. The court accepts her testimony as truthful. Further corroboration was offered by her husband, who testified that since the injury her complaints have been of constant pain. She has been unable to do much work around the house, so he has taken over the housework and most of the physical care of the children.
“The court is convinced that the evidence and testimony, both medical and lay, presented at trial supports its conclusion that plaintiff is totally and permanently disabled by reason of substantial pain. The law is clear that a worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Wilson v. Ebasco, Services, Inc., 393 So.2d 1248 (La.1981); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980).
******
“[Ajlso, defendants rely upon certain statements made by plaintiff in her application for employment at LCMH as positive proof that her health at the time was excellent and that she was not suffering any back pain before her employment there.

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Related

Levitz Furniture Corp. v. Horne
477 So. 2d 824 (Louisiana Court of Appeal, 1985)
Lewis v. Rapides Parish School Board
434 So. 2d 1096 (Supreme Court of Louisiana, 1983)

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Bluebook (online)
430 So. 2d 388, 1983 La. App. LEXIS 8415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-rapides-parish-school-board-lactapp-1983.