Lightfoot v. J. Ray McDermott & Co.

417 So. 2d 394, 1982 La. App. LEXIS 7595
CourtLouisiana Court of Appeal
DecidedJune 8, 1982
DocketNo. 13103
StatusPublished
Cited by1 cases

This text of 417 So. 2d 394 (Lightfoot v. J. Ray McDermott & 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
Lightfoot v. J. Ray McDermott & Co., 417 So. 2d 394, 1982 La. App. LEXIS 7595 (La. Ct. App. 1982).

Opinions

SCHOTT, Judge.

Plaintiff has appealed from a dismissal of her suit for workers’ compensation benefits beyond the two month period in which she was paid benefits by her employer. The issue is whether the trial court’s conclusion is supported by the record.

Plaintiff, employed as a welder, was injured on July 25, 1978, when a “come along” fell on her back. She reported to the employer’s first aid station for treatment, returned to work about a half hour later, and continued working for about two more hours. The next day she worked ten hours. Supervisory personnel testified that she manifested no injury at this time.

On the second evening following her accident plaintiff sought treatment at a hospital in Franklin and on July 28 consulted her physician, Dr. Vela. He found spasm in her right lumbar spine, treated her with medication and heat applications, and, on August 18, referred her to a neurosurgeon, Dr. John D. Jackson.

On September 5 she was examined by Dr. P. H. Rhymes, an orthopedist, at the employer’s behest. He found objective evidence of muscle damage to the lumbar back and prescribed medication and a brace. When he last saw her on September 13 she was still having objective symptoms and was not cleared for work. She was told to return in ten days but did not.

On September 25, 1978, plaintiff was examined by Dr. Jackson. Based on his examination, particularly his finding that the Achilles reflexes were decreased bilaterally, he felt that she had a bulging disc or a contused nerve root. He saw her again on October 16 and because she continued to have numbness and pain in both feet he felt that she should be hospitalized for conservative treatment.

Defendant’s claims examiner for its workers’ compensation department testified that she discontinued compensation payments on September 27 based on the report from Drs. Rhymes and Soboloff that plaintiff was no longer disabled. However, plaintiff was not seen by Dr. Soboloff until November 6.

Dr. Soboloff, an orthopedist, after exam-. ining plaintiff found no objective symptoms and he concluded his report to defendant with the following:

“... We therefore, see nothing of an orthopedic nature that would indicate a need for continued orthopedic treatment and no contra-indication to her return to a regular work status. If there is doubt about her having any pressure on the nerve root, then we would suggest an [396]*396EMG for the right lower extremity to see if there truly is any nerve root irritation.”

However, in his testimony Dr. Soboloff made the following statement:

“... And I came to the conclusion that there were no objective orthopedic findings but because of the persistence of her complaints I felt she should have the benefits of an EMG, an electrical test, and see if there was any evidence of nerve root irritation.”

When asked if the EMG study was performed on plaintiff, Dr. Soboloff testified that one was performed at Charity Hospital in May, 1980, and it revealed no abnormalities. Defendant sent plaintiff to Dr. William A. Martin, a neurosurgeon, who conducted electro-myogram diagnostic studies on her in December, 1978. This revealed intermittent muscle spasm activity in her paraspinous muscle. Although he reported to defendant that the studies were normal, with no evidence of radiculopathy, neuropa-thy or myopathy, he testified that such a muscle spasm “usually indicates there has been a strain or some other condition causing the muscles to be in spasm and tighten up.”

Dr. Soboloff, when asked what his recommendation to plaintiff would have been, had he been aware of the objective finding of muscle spasm by Dr. Martin, replied that he would not have allowed her to return to work but would have recommended a period of some three months of physical therapy and medication.

Dr. Jackson saw plaintiff again on February 8, 1979, and July 2, 1979. He was convinced that plaintiff had a bulging disc and recommended that a myelogram be performed followed by a discogram in the event that the myelogram was negative. He was quite adamant in his testimony that plaintiff was in need of this further testing and faulted defendant for not providing it. However, on November 13, 1979, a myelo-gram was performed on plaintiff at Charity Hospital and the neurosurgeon reported that there was no ruptured lumbar disc and no objective signs to substantiate plaintiff’s claim of back pain.

Plaintiff would have us conclude that she is entitled to compensation benefits for total permanent disability based primarily on her own testimony and that of Dr. Jackson. Apparently the trial judge did not believe plaintiff whose credibility was severely damaged when she admitted having been convicted of stabbing her sister to death ten years previously and injuring her back in that altercation after she initially denied previous convictions or back trouble. Furthermore, she applied for a job with a company nine days after her accident on July 25 and in her employment application she stated that she had no previous accidents or injuries to her back. As for Dr. Jackson, the trial judge apparently assigned little weight to his testimony, and this conclusion is supported by the doctor’s deposition which is in the record. It reveals that Dr. Jackson was far from an objective medical expert but he behaved more like an advocate for plaintiff’s position as he argued her case throughout and was highly critical of defendant’s handling of her claim.

Nevertheless, even though we reject plaintiff’s testimony as incredible and accept the trial judge’s negative evaluation of Dr. Jackson’s testimony, we are constrained to amend the judgment because of the testimony of Doctors Soboloff and Martin. These were defendant’s witnesses and it is clear from their testimony that as of December 6, 1978, when Dr. Martin performed his electromyogram plaintiff was still disabled and, according to Dr. Soboloff, should have been provided with physical therapy and medication over a three-month period, during which he would expect plaintiff’s symptoms to subside. Plaintiff’s lack of credibility does not serve to preclude her from compensation benefits because defendant, by paying her compensation benefits and medical expenses for 60 days, acknowledged that she was hurt on the job and was disabled for at least that period of time. Defendant declined to pay further benefits because of the reports it had from Doctors Rhymes, Soboloff and Martin. While the reports from Doctors Soboloff and Martin supported defendant’s decision [397]*397their combined testimony made it clear that their reports were incomplete and misleading and that plaintiff was indeed still disabled as of December 6.

It is likewise clear from the record that the trial judge did not attach any significance to Dr. Martin’s finding of muscle spasm on December 6, 1978, because of plaintiff’s admission that some three weeks previously, i.e., between the date she saw Dr. Soboloff and the date the electromyo-gram was conducted she was in an automobile accident, in which she sustained a fractured clavicle, three broken ribs, and injury to her cervical spine. The trial judge apparently concluded as a fact that the muscle spasm found by Dr. Martin was attributed to this automobile accident rather than the work accident sued on. The question is whether this finding was manifestly erroneous.

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

Related

Bistes v. Asplundh Tree Expert Co.
499 So. 2d 402 (Louisiana Court of Appeal, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
417 So. 2d 394, 1982 La. App. LEXIS 7595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lightfoot-v-j-ray-mcdermott-co-lactapp-1982.