Loud v. Dixie Metal Co.

506 So. 2d 1355, 1987 La. App. LEXIS 9422
CourtLouisiana Court of Appeal
DecidedMay 6, 1987
DocketNo. 18699-CA
StatusPublished
Cited by4 cases

This text of 506 So. 2d 1355 (Loud v. Dixie Metal 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
Loud v. Dixie Metal Co., 506 So. 2d 1355, 1987 La. App. LEXIS 9422 (La. Ct. App. 1987).

Opinion

HALL, Chief Judge.

In this worker’s compensation action, defendants, Dixie Metal Company, Inc. and its insurer, C.N.A. Insurance Company, appeal a judgment granting plaintiff, Bobby Joe Loud, total and permanent disability benefits.

The issues are: the extent of plaintiff's disability, if any, under the worker’s compensation law in effect on February 18, 1982, the date of the original accident and the effect of a subsequent accident on the plaintiff's disability and the defendants’ accountability.

For reasons expressed in this opinion, we amend to award partial disability benefits until the date of the second accident and affirm the amount of permanent total benefits after that date.

FACTS

On February 18, 1982 plaintiff was employed at Dixie Metal when the front-end loader he was using accidentally struck a protruding metal pipe, causing the loader to stop suddenly. Upon impact, plaintiff received a jolt and immediately began to experience pain in his back. The pain was so intense that it took fifteen minutes for the plaintiff to climb down from the machine and report the accident to his employer. Despite its initial acuteness, the pain apparently subsided to the extent that plaintiff was able to return to work.

The following day, plaintiff was treated by a company doctor who prescribed some pain medication and instructed plaintiff to come back if the pain persisted. The pain medicine did some good and plaintiff never missed a day of work. He was nevertheless still bothered by nagging pain in his lower back, radiating pain in his leg, and numbness in his foot. In early March, 1982 Dixie Metal closed its plant and plaintiff was laid off. Afterwards, he received unemployment compensation benefits for eight months.

Because the pain persisted, plaintiff went to see Dr. Brian, an orthopedist on March 29, 1982. Dr. Brian performed a physical exam that essentially confirmed plaintiff’s complaints. Dr. Brian fitted plaintiff with a corset, prescribed some additional medicine, and recommended bed rest. The doctor lacked objective proof to make a positive diagnosis but the symptoms were consistent with a condition known as nerve root irritation.

Plaintiff returned to Dr. Brian in April, May, and June, 1982. The doctor noted that plaintiff’s condition had improved although the patient continued to suffer lower back pain. In addition to the medical doctor, plaintiff visited a chiropractor who also failed to give him any substantial relief from the pain.

In October, 1982 plaintiff went to work as a truck driver in Kansas. He drove an eighteen-wheeler roughly 400 miles per day before severe back pain forced him to quit that job after one-..month. •' Plaintiff returned to Dr. Brian in November, 1982, still [1357]*1357complaining of pain. This examination revealed tenderness in the L5-S1 area. Dr. Brian continued a prescription of muscle relaxants and anti-inflammatory agents.

By December, 1982, the pain had worsened and Dr. Brian requested a new EMG; an earlier test had revealed “no gross neurological defects.” The results of the EMG, received in late January, 1983, showed “highly probable nerve root irritation in the first sacral joint.”

Notwithstanding his physical problems, plaintiff was able to secure a job as a truck driver for Martin Timber Company in January, 1983. This job, however, consisted of shorter trips, approximately 60 miles per day, and easier working conditions than the prior truck driving position. Along with his duties at Martin Timber, plaintiff worked every day in a service station store that he began leasing in March, 1983.

In August, 1983, while working for Martin Timber, plaintiff filed this worker’s compensation suit against Dixie Metal demanding benefits for total and permanent disability, medical expenses, attorney’s fees, and penalties. Because suit was initiated more than one year after the initial accident (February 1982), defendants filed an exception of prescription which was sustained by the trial court. This court reversed the trial court ruling and remanded the case for trial, holding that plaintiff’s injury did not develop until December, 1982 or January, 1983; therefore, plaintiff was not barred by the one year prescriptive period. Loud v. Dixie Metal Co., 475 So.2d 122 (La.App. 2d Cir.1985).

Before the case went to trial, plaintiff returned to Dr. Brian in May, 1984 with complaints that the pain had grown worse in the last month. Plaintiff experienced good days and bad days; on the latter he could not work. Over the twenty-one month period that he was employed by Martin Timber, plaintiff missed only three weeks and worked an average of forty-six hours per week.

Plaintiff continued to work for Martin Timber until he reinjured his back while climbing down from a truck in October, 1984. Plaintiff has not returned to work and Martin Timber has paid worker’s compensation benefits since October, 1984.

Surgery to remove a herniated disc was performed by Dr. Holladay, an orthopedic surgeon, in November, 1984. Plaintiff also suffers from spinal stenosis, a narrowing of the spinal canal. Dr. Holladay concluded that plaintiff had a 15 percent permanent physical impairment of the lower back and body. The doctor recommended additional surgery to remove some of the bone narrowing plaintiff’s spinal canal in order to reduce his pain;

According to Dr. Holladay plaintiff would be able to perform some sedentary type activities, such as sitting, standing, walking short distances, and activities using his upper extremities. Dr. Holladay was of the opinion that plaintiff could not return to work as a truck driver.

In April, 1986 the case finally went to trial. The evidence primarily consisted of plaintiff’s testimony and the depositions of Drs. Brian and Holladay. Plaintiff testified that he was constantly in severe pain while driving a truck for Martin Timber. He was unable to take his medication because it made him drowsy. Shifting gears was painful because he had to lift his leg in order to push in and let out the clutch. Plaintiff also testified that he could not dolly down the landing gear on the trailer because of the winding motion; however, his duties at Martin Timber did not include loading or unloading the trailer. Plaintiff presented no corroborating lay witnesses as to the extent of his pain.

TRIAL COURT ACTION

The trial court found plaintiff permanently and totally disabled because he was working in substantial pain as a truck driver. The trial court set October 1, 1982 as the date plaintiffs injury developed. Plaintiff was awarded disability benefits of $183.00 per week beginning October 1, 1982 and unpaid medical expenses, but penalties and attorney’s fees were denied. From this judgment, defendants appeal.

APPLICABLE LAW

To recover benefits under the law, an employee must establish that he received a [1358]*1358personal injury by accident arising out of and in the course of his employment. Disability is compensable only if it results from a work related accident. LSA-R.S. 23:1031; Lattin v. Hica Corp., 395 So.2d 690 (La.1981). Defendants stipulated that plaintiff’s original injury was work related. Hence, the initial issue presented for our review is whether the trial court erred in finding plaintiff totally and permanently disabled after his original injury developed.

At the time of plaintiffs injury, total disability was defined as the inability “to engage in

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Bluebook (online)
506 So. 2d 1355, 1987 La. App. LEXIS 9422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loud-v-dixie-metal-co-lactapp-1987.