Marcotte v. Atlas Construction Co.

340 So. 2d 341, 1976 La. App. LEXIS 4042
CourtLouisiana Court of Appeal
DecidedNovember 15, 1976
DocketNo. 10939
StatusPublished
Cited by4 cases

This text of 340 So. 2d 341 (Marcotte v. Atlas Construction 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
Marcotte v. Atlas Construction Co., 340 So. 2d 341, 1976 La. App. LEXIS 4042 (La. Ct. App. 1976).

Opinion

SARTAIN, Judge.

Albert Marcotte, (appellant) appeals from a judgment of the district court denying his [342]*342claim for workmen’s compensation benefits based on total and permanent disability. We are not favored with oral or written reasons from the trial judge. Appellee contends that the judgment appealed should be affirmed on the basis of two reasons, that appellant failed to prove an accident and that he was totally and permanently disabled in the event he proved the accident. For reasons hereinafter stated, we are of the opinion that appellant has proved both and that the judgment of the district court should be reversed.

Prior to July, 1973, appellant was employed by Atlas Construction Company (Atlas) as a heavy duty field mechanic. His job included on-site repairs to heavy equipment (earth movers, road graders, dozers) used in highway construction. As a regular part of his job, he was required to lift and move heavy pieces of machinery. At times various mechanical devices were available for the mechanics’ use in lifting heavier pieces, but often, the mechanics were forced to resort to physical labor alone in lifting and manipulating some parts. These parts often weighed in excess of two hundred pounds. In addition, a significant amount of bending, stooping and straining in awkward positions was required of the mechanics in order to make necessary repairs.

Appellant claims that on the morning of July 24 or 25, 1973, he was working on the transmission of an Euclid earth mover when he slipped and fell against the pilot shaft, thereby sustaining injuries to his back. He says he stopped his work and remained idle for a period of about thirty minutes and then resumed work for the rest of the day. There is some dispute as to when he notified his supervisor, Mr. John Davis, of his injury. Appellant testified he thought he notified Mr. Davis of the accident on the day following. Mr. Davis stated the accident and injury were reported some two days after it happened. During the time before he reported the accident, appellant attempted to perform light work, requiring no straining or lifting, but could not resume the kind of work he had been doing prior to his injury.

After reporting the accident appellant was sent by an Atlas official to the office of Drs. Abramson & Streb of Gonzales, Louisiana, and on July 29, 1973 was admitted to Ascension Hospital. His complaint was of pain in his lower back and legs. He received treatment consisting of physical therapy and pain medication and was released on August 9.

He was then referred to Dr. Richard Bolton who diagnosed mild generalized osteoarthritis and narrowing of the L-5, S-l disc space. He fitted appellant with a lum-bosacral corset and presented physical therapy, pain medication and ultra sound treatments. Appellant was allowed to return to work with Atlas on restricted duty on August 20. Approximately one week later he was allowed to return to regular duty of the type he had been doing prior to his injury. When his condition did not improve, he was admitted to Ascension Hospital by Dr. Bolton on October 15 for bed rest and traction. When further examination indicated a disc problem, he was transferred to Baton Rouge General Hospital for consultation by Dr. Thomas Flynn. Dr. Flynn diagnosed plaintiff’s injury as a herniated disc and on October 29,1973 he performed a laminectomy.

In February, 1974 Dr. Flynn allowed appellant to return to light duty work. In early March appellant returned to work on a restricted basis and since that time has held a series of light duty jobs involving no heavy lifting, straining or bending. In June, 1974, Dr. Flynn pronounced appellant able to return to unrestricted duty. After a period of a couple of months, appellant complained of low back pain which became more severe with increased activity.

Defendant, Highland Insurance Company, has paid all of appellant’s medical and hospital bills ($4,685.57) and workmen’s compensation benefits ($2618.57) for a total of forty weeks. Benefits were paid from August 4 to August 19 and from October 10, 1973 to July 25, 1974.

It is well established in our jurisprudence that in a workmen’s compensation dispute the testimony of a plaintiff alone is [343]*343sufficient to establish the occurrence of an accident, if nothing is presented to discredit his account of it and where his statements are supported by surrounding circumstances. Smith v. Louisiana Welding Supply Co., Inc., 331 So.2d 606 (1st La.App., 1976); Cavender v. Flenniken Construction Co., Inc., 247 So.2d 652 (2nd La.App., 1971). We, nevertheless, are mindful of the necessity that the plaintiff in all civil cases must establish by a preponderance of the evidence that an accident did occur and that it had a causal relation to the disability complained of. Francis v. Gerlach Meat Company, Inc., 319 So.2d 534 (2nd La.App., 1975).

The circumstances surrounding the incident support appellant’s contention that an accident did occur while plaintiff was repairing the Euclid earth mover on July 24 or 25. At the time of the alleged injury plaintiff was working with his assistant, a Mr. Lockhart, who plaintiff says witnessed the accident. Mr. Lockhart was not present at trial to corroborate plaintiff’s testimony as he could not be located, despite diligent efforts on the part of the plaintiff to contact him, and despite the issuance of two subpoenas which were returned unserved by the sheriff.

It was stipulated at trial that Mrs. Mar-cotte’s testimony would corroborate that of her husband as far as it concerns his claim that he returned from work on the day of the accident suffering from back pain, that he remained in pain until he reported the injury to his supervisor, and that he continued to suffer during the course of treatment by various doctors.

Mr. Davis, to whom appellant first reported his accident, testified that Marcotte had never complained of back problems of any sort until his report of the injury in the alleged accident.

Medical testimony adduced at trial established a causal connection between the injury plaintiff suffered and his residual disability. Certain medical testimony established that plaintiff suffered from mild osteoarthritis and mild degenerative disc disease to the extent that is expected to be present in any fifty-five year old person (the age of plaintiff at the time of the accident). The presence of these afflictions renders an individual more susceptible to injuries such as the disc herniation suffered by appellant. However, jurisprudence in Louisiana in the area of workmen’s compensation holds that an employer takes an employee as he finds him. Bordelon v. Tulane Industrial Laundry, Inc., 275 So.2d 878 (4th La.App., 1973). And, a worker who is normally susceptible to disability from an accident is entitled to coverage under workmen’s compensation even though the same accident would cause little or no harm to a healthy worker. Roberson v. Liberty Mutual Insurance Co., 316 So.2d 22 (3rd La.App., 1975), Kennedy v. Calcasieu Paper Company, 262 So.2d 800 (3rd La.App., 1972).

Dr. Flynn, a neurosurgeon and appellant’s treating physician, testified that appellant’s back pain must be attributed at least in part to his injury and subsequent disc surgery and should be considered as sequelae to that injury and surgery. On this point, the doctor explained:

Q. I’m primarily interested in, Dr. Flynn, how much of this should be ascribed to Mr.

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Related

Achord v. HE Weise Const. Co.
422 So. 2d 1248 (Louisiana Court of Appeal, 1982)
State v. Poree
386 So. 2d 1331 (Supreme Court of Louisiana, 1980)
Marcotte v. Atlas Construction Co.
342 So. 2d 676 (Supreme Court of Louisiana, 1977)
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341 So. 2d 1245 (Louisiana Court of Appeal, 1976)

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Bluebook (online)
340 So. 2d 341, 1976 La. App. LEXIS 4042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcotte-v-atlas-construction-co-lactapp-1976.