Mack v. Imperial Trading Co.

665 So. 2d 536, 95 La.App. 5 Cir. 537, 1995 La. App. LEXIS 3384, 1995 WL 697705
CourtLouisiana Court of Appeal
DecidedNovember 28, 1995
DocketNo. 95-CA-537
StatusPublished
Cited by21 cases

This text of 665 So. 2d 536 (Mack v. Imperial Trading 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
Mack v. Imperial Trading Co., 665 So. 2d 536, 95 La.App. 5 Cir. 537, 1995 La. App. LEXIS 3384, 1995 WL 697705 (La. Ct. App. 1995).

Opinions

BOWES, Judge.

Claimant, Christopher Mack, appears in proper person to appeal the decision of the hearing officer denying to him benefits under the worker’s compensation laws. We reverse and remand for further proceedings.

FACTS

Plaintiff filed for worker’s compensation benefits for an on-the-job accident which he avers occurred on April 19, 1992. While engaged in his occupation of loading pallets for his employer Imperial Trading Company, he maintains that he pulled or injured his back, experiencing a sharp pain. He says that at that time he told Elton Hill, a coworker, that he had injured his back and then went home. On the following morning, he was unable to get out of bed and sought medical attention. He claims disability from that hdate, and that his employer has never paid compensation benefits. The employer disputed his claim that an accident occurred, and plaintiff filed his disputed claim in the Office of Worker’s Compensation. The following litigation ensued.

COMPENSATION HEARING

At the outset of the hearing, plaintiff-appellant requested a continuance in order to obtain the testimony of Elton Hill, the employee to whom claimant reported his injury on the night he was hurt. Mr. Hill was no longer employed by Imperial and his name was unknown to the plaintiff until the month before trial. The record shows that Hill was subpoenaed, by plaintiff but no return on the subpoena was available and Hill was not present at trial. The request for a continuance was denied.

The deposition of Dr. Robert Mímeles, an orthopedic surgeon, was admitted into evidence in lieu of testimony. Dr. Mímeles testified that Mr. Mack was referred to him by St. Jude Hospital, where Mr. Mack had initially sought emergency treatment on the day following the accident. He did not know [538]*538who authorized treatment, or who paid the medical bill.

According to the history given to Dr. Mi-meles by claimant, Mr. Mack had no problems with his back prior to the work-related injury. When he saw Dr. Mimeles, his problems were in his lower back; he had some pain with flexion extension and bending. Straight leg raising was negative; there were no motor deficits and x-rays were normal, with nojjbony abnormalities. Dr. Mimeles diagnosed a lumbar strain, gave him a muscle relaxant and some pain-killing medication, and asked claimant to return.

Mr. Mack did return five days later complaining the pains were worsening and now were radiating down both legs. There was pain with any attempt of flexion and bending, which facts Dr. Mimeles would not have expected with a soft tissue injury. There were complaints of pain with finger pressure on the back, which the doctor, reading from his notes, considered “questionable.” When asked about his truthfulness, Dr. Mimeles stated: “Was he truthful? I try not to get into all of that” — although he did not think the finger pressure should have caused complaints of pain. (However, we take note of the fact that Dr. Mimeles twice stated that he did not specifically remember plaintiff).

A CAT scan was ordered, and was performed on May 1,1992. Dr. Mimeles felt the test results were normal and, on May 4,1992, released Mr. Mack from his care. At that time, the physician felt “we were not heading in the right direction.” Despite claimant’s continued complaints, he had no ruptured disc, no pinched nerve, and no bony abnormality. He usually told patients in these types of cases that if they still had complaints, to ask the employer to get a second opinion.

On cross-examination, Dr. Mimeles stated there could be several causes for radiating pain, such as mechanical pressure or a stretch injury. If Rclaimant had come to him a month later and continued to complain of pain, he would have ordered an MRI to see how it correlated with the CAT scan, although he had seen no reason to do so when he discharged Mr. Mack.

While the deposition stated that medical reports from Dr. Mimeles were attached, including one dated May 15,1992, the record on appeal does not include them.

Other medical information admitted into evidence at the hearing included a report issued by Dr. Arthur Blamphin, who examined claimant for evaluation for Social Security benefits on September 14,1992, about five months after the accident. Dr. Blamphin reported that plaintiff related an on-the-job back injury in April 1992. Following his examination, a lumbar sacral strain with ridi-culopathy of the left lower extremity was diagnosed; as of that date, Dr. Blamphin felt that plaintiff was not physically able to work, and was advised to see another physician for diagnostic testing.

Dr. Henry Fitch, a chiropractor who treated claimant, entered a report that, in his opinion, claimant suffered from a central disc lesion which needed further treatment. However, since Dr. Fitch felt that there was nothing further that he could do plaintiff, Mr. Mack had been released from his care. However, we take note of the fact that Dr. Fitch stated: “I sincerely hope someone will listen to this man for he does have a legitimate problem.”

IsMedical records from the Medical Center of Louisiana at New Orleans (formerly Charity Hospital) evidenced that Mr. Mack was treated there. A report from that facility indicates that claimant gave the same history of a work accident. In November of 199S, he was examined and given pain medication and bed rest was ordered. In March of 1994, an MRI was taken indicating a normal result. The only diagnosis on these reports is “lumbar pain.”

Mr. Mack testified that on April 19, 1992, he was working in the bulk section, loading items on a pallet jack. Any one case could weigh between 30 to 60 pounds. He had sharp pains in his back and told another employee, Elton Hill (whose status as a supervisor is unclear), that he had hurt himself. He left the job early and went home. The next morning when he tried to get out of bed, he had difficulty doing so and went to St. Jude Medical Center. St. Jude’s contacted the company, who initially declined responsi[539]*539bility for payment. After St. Jude, claimant saw Dr. Mímeles, Dr. Fitch, Dr. Blamphin and physicians at the emergency room at the Medical Center of Louisiana (formerly Charity Hospital). He still goes there for physical therapy.

On cross-examination, Mr. Mack stated that he did not leave work early because his work was finished, but because he was in pain. However, in a deposition, Mack had stated that he was sent home because his work was finished. However, Mack explained what he really meant by these | ^statements by stating that if an employee finished his work early, he has to help the others, staying a full eight hours on the job. On the night he was hurt, he went home after completing his own load, and did not stay around to help others. “I left because I was in pain and as of that [sic] my work was finished.” Mack further stated that Dr. Mí-meles told him that he couldn’t find anything wrong, and that he could get a second opinion if he was in pain and wanted to do so, and also that he could go back to work if he felt that he could do it. However, he said he did not return to work because Dr. Fitch told him not to.

The deposition of Tom Anderson was admitted into evidence. Mr. Anderson was the former assistant warehouse manager on the night shift at the time of the accident.

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Bluebook (online)
665 So. 2d 536, 95 La.App. 5 Cir. 537, 1995 La. App. LEXIS 3384, 1995 WL 697705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-v-imperial-trading-co-lactapp-1995.