Lubom v. LJ Earnest, Inc.

579 So. 2d 1174, 1991 WL 74807
CourtLouisiana Court of Appeal
DecidedMay 8, 1991
Docket22384-CA
StatusPublished
Cited by80 cases

This text of 579 So. 2d 1174 (Lubom v. LJ Earnest, Inc.) 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
Lubom v. LJ Earnest, Inc., 579 So. 2d 1174, 1991 WL 74807 (La. Ct. App. 1991).

Opinion

579 So.2d 1174 (1991)

Frank LUBOM, Plaintiff-Appellant,
v.
L.J. EARNEST, INC. and Transportation Insurance Company, Defendants-Appellees.

No. 22384-CA.

Court of Appeal of Louisiana, Second Circuit.

May 8, 1991.

*1177 Timothy R. Fischer, Margie Gray McMahon, Shreveport, for plaintiff-appellant.

Mayer, Smith & Roberts by Alex S. Lyons, Shreveport, for defendants-appellees.

Before SEXTON, VICTORY and STEWART, JJ.

STEWART, Judge.

In this worker's compensation action, the claimant appeals a judgment rejecting his demands. He contends that he suffered disability to his back which should have been found to have been caused by a work-related knee injury. Additionally, claimant sought supplemental earnings benefits, medical expenses, penalties and attorney's fees. For the reasons assigned below, we amend the judgment to include an award of additional medical expenses and otherwise, affirm.

FACTS

During 1987, Frank Lubom operated an eighteen wheel gravel truck for L.J. Earnest, Inc. On Friday, August 28, 1987, Lubom slipped and twisted his left knee as he stepped down from checking the oil and water in the truck. Lubom was initially treated at The Family Clinic by Dr. Scott Mighell and Dr. Charles Henry Nash. Lubom's attorney referred him to Dr. Carl Goodman. During arthroscopic surgery on October 1, 1987, Dr. Goodman debrided an area of deep articular damage under Lubom's left patella. However, he found no evidence of cartilage or ligament damage.

Following Dr. Goodman's recomendation, Lubom reported to Tietjen Physical Therapy Clinic for treatment during October and November 1987. In December 1987, Dr. Goodman assigned Lubom a 15 percent partial disability of the knee. He diagnosed Lubom as having post-operative knee sprain with patella chrondromalacia and released him to return to work, without restriction, after December 28, 1987.

Lubom reported to Samantha Earnest, equal employment opportunity officer and assistant safety officer at L.J. Earnest, in January 1988. She told him that L.J. Earnest had no work for him at that time and placed Lubom on partial unemployment. Lubom applied for and received unemployment compensation benefits beginning that January.

Lubom returned to Dr. Goodman on February 8, 1988 still complaining of knee pain. He visited The Orthopedic Clinic and saw orthopedic surgeon Dr. M. Regan Green on February 12, 1988 for a second opinion regarding his knee. Lubom complained neither of falling nor of back pain during the February 8 and February 12 visits. Dr. Green's initial examination revealed 1 + lateral instability at 30 degrees and a possible trace of medial instability on valgus stressing at 30 degrees. Dr. Green also observed patella-femoral crepitance as well as tenderness over the medial femoral attachment of the medial collateral ligament. Dr. Green's impression was that Lubom had a sprain of the medial collateral ligament and possibly subluxation of the patella along with resultant chrondromalacia of the patella. Dr. Green recommended injection of the sprained area and referred Lubom back to Dr. Goodman for follow-up. Lubom then visited Dr. Goodman on February 16, this time complaining of knee pain and of pain in his buttocks and lower back resulting from a fall "several weeks ago." At that time, Dr. Goodman's impression was that Lubom had post-traumatic patella chrondromalacia, persistent medial collateral ligament sprain of the left knee, and lower back contusion. Dr. Goodman's recommendation was as follows: "I have no further treatment to offer. Consultation from another orthopedic surgeon in town is advised."

Lubom continued treatment with Dr. Green for several weeks. The first time Lubom complained to Dr. Green of back pain following a fall due to his knee "giving out" was in his second visit on February 29, 1988. Dr. Green injected Lubom's femoral medial collateral attachment with Celestone and Xylocaine. Pursuant to Dr. *1178 Green's referral, Lubom reported to Larsen Physical Therapy, Inc. for nine treatments in an attempt to relieve both knee and back pain.

Lubom again saw Samantha Earnest on March 17, 1988. She told him to report to work the following Monday. When he did not do so, she "gave him separation papers," (TR. at 177) effective March 19, 1988. By March 24, 1988, Dr. Green noted that Lubom's knee was improving and that his back had improved. Lubom was then released to return to work on March 24 with the limitation that he operate only automatic transmission vehicles. Dr. Green testified by deposition that the basis for the work restriction was the crepitance as well as Lubom's complaints of continued pain.

Lubom returned to see Dr. Green on April 28, 1988, complaining of recurrent pain in his back and knee. Dr. Green noted the possibility of rearthroscopy, but felt that the knee should improve to the point where no surgery would be required if Lubom exercised conscientiously.

At the request of L.J. Earnest's insurance company, Dr. Gordon Mead examined Lubom on or about June 20, 1988. Dr. Mead's examination produced no objective finding to substantiate Lubom's complaints of pain other than a one-quarter inch difference in the circumference of the thighs, measured five inches above the superior pole of the patella. Lubom made no mention of a back injury to Dr. Mead. Dr. Mead testified by deposition that atrophy of the quadriceps muscle can be indicative of joint pathology, but did not believe that a quarter of an inch was necessarily significant due to built-in error in the method of measuring.

Lubom was treated at LSU Medical Center (LSUMC) from June through September 1988 for back and knee problems. An August 1988 examination at the LSUMC Orthopedic Clinic revealed a 4 cm difference between Lubom's right and left quadriceps, measured 20 cm below the tibial tubercle. Lubom was diagnosed as having chronic left knee pain and was referred for three months of physical therapy to strengthen the quadriceps.

Lubom returned to the Orthopedic Clinic and was examined for back pain by Dr. Harold Bicknell on September 23, 1988 and by Dr. Green on September 30, 1988. There is no mention of knee pain or of a knee examination in The Orthopedic Clinic's September 1988 reports. Lubom also returned to see Dr. Goodman in November 1988 complaining of knee, lower back, and hip pain. His examination of the left knee was within the normal limits.

The trial court rendered judgment in favor of defendants, L.J. Earnest, Inc. and Transportation Insurance Company, and against plaintiff, Frank Lubom, rejecting his demands and dismissing his suit with prejudice at his costs. The judgment further ordered that Mr. Lubom pay expert witness fees and deposition fees. Mr. Lubom appeals assigning as error the following:

1. The trial court erred in finding there was no causal relation between the August 28, 1987 injury and the back injury;
2. the trial court erred in applying the "clear and convincing" standard as the burden of proof of the causal relationship;
3. the trial court erred in denying supplemental earnings benefits;
4. the trial court erred in denying medical expenses after December 28, 1987;
5. the trial court erred by failing to award penalties and attorney's fees to Mr. Lubom under LSA-R.S. 23:1201.2.

LEGAL PRINCIPLES

The claimant in a worker's compensation case has the burden of establishing his disability and its causal relation with the employment accident by a preponderance of the evidence. Walton v. Normandy Village Homes Association, Inc.,

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579 So. 2d 1174, 1991 WL 74807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lubom-v-lj-earnest-inc-lactapp-1991.