Mazoch v. Employers Cas. Co.

514 So. 2d 1184, 1987 La. App. LEXIS 10448
CourtLouisiana Court of Appeal
DecidedOctober 14, 1987
Docket86 CA 0999
StatusPublished
Cited by10 cases

This text of 514 So. 2d 1184 (Mazoch v. Employers Cas. 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
Mazoch v. Employers Cas. Co., 514 So. 2d 1184, 1987 La. App. LEXIS 10448 (La. Ct. App. 1987).

Opinion

514 So.2d 1184 (1987)

Roch MAZOCH
v.
EMPLOYERS CASUALTY COMPANY, et al.

No. 86 CA 0999.

Court of Appeal of Louisiana, First Circuit.

October 14, 1987.
Rehearing Denied November 13, 1987.
Writ Denied January 15, 1988.

Patrick W. Pendley, Plaquemine, for plaintiff-appellee Roch Mazoch.

Bruce Parkerson, New Orleans, for defendants-appellants H.B. Zachary Co. and Employers Nat. Ins. Co.

Before GROVER L. COVINGTON, C.J., and SAVOIE and LeBLANC, JJ.

*1185 SAVOIE, Judge.

Roch Mazoch (Plaintiff) filed suit against H.B. Zachary Company and its insurer, Employers Casualty Company (Defendants), to recover additional worker's compensation benefits for a back injury he sustained on April 30, 1981.

Plaintiff alleged that he injured his back when he lifted steel conduit during the course and scope of his employment by H.B. Zachary Company. He immediately reported the injury, stopped working, and then returned to work on May 4. He was only able to work until May 6, 1981, due to the injury. Plaintiff alleged that he has not been able to work since that time. Defendants paid all Plaintiff's medical expenses and worker's compensation benefits from May 7, 1981 through September 9, 1981. Defendants discontinued compensation benefits on the basis that medical reports showed that Plaintiff was not disabled and was able to return to work.

At trial, Plaintiff testified as to his injuries. Dr. Henry LaRocca testified by deposition as to Plaintiff's medical condition. Defendants called Dr. Jackson to testify as to Plaintiff's medical condition, and offered the deposition testimony of Drs. Clifford and Smith. Defendants also called Barbara Jefferson, Plaintiff's ex-wife, and Steve Junot, a representative from the Vo-Tech school Plaintiff attended. The court awarded Plaintiff worker's compensation benefits for total permanent disability. Defendants now appeal.

Defendants' first assignment of error is that the trial court erred in giving greater weight to the deposition testimony of Dr. Henry LaRocca than to the testimony of the other physicians. The trial judge in his written reasons stated:

The only doctor who performed a truly intensive examination was Dr. Henry LaRocca, who administered both a myelogram and discogram and found, as a result thereof, that Mr. Mazoch had two degenerative discs in his back.
It is the opinion of this court that, especially in back cases, an intensive examination of this type should prevail over the merely physical examinations of the other physicians. Dr. LaRocca's testimony, coupled with the 50-50 lay testimony, tips the scale in favor of the plaintiff.

The factual findings of the trial court are not disturbed unless manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Defendants contend in brief that this standard is not applicable to deposition testimony, which is to be reviewed based on the sufficiency and preponderance of the evidence. Dickerson v. Zurich-American Ins. Co., 479 So.2d 571 (La.App. 1st Cir.1985). However, the Louisiana Supreme Court has ruled that the manifest error standard of review is applicable even to deposition testimony. Virgil v. American Guarantee and Liability Ins. Co., 507 So.2d 825 (La.1987).

Defendants contend that the trial court erred in giving great weight to Dr. LaRocca's testimony because he was not the treating physician. The testimony of the treating physician should be given greater weight because his conclusions are based on repeated examinations and sustained observations of the patient. Brown v. Brook Tarpaulin Co. of New Orleans, 485 So.2d 994 (La.App. 4th Cir.1986); Irvine v. Sentry Insurance Co., 415 So.2d 467 (La.App. 1st Cir.1982).

Dr. LaRocca first saw Plaintiff on March 8, 1982, almost one year after the accident. At that time, Plaintiff was complaining of both upper and lower back pain. Dr. LaRocca physically examined Plaintiff and took x-rays. He then gave Plaintiff a back support, or corset, to wear, as well as anti-inflammatory medication. He saw Plaintiff on April 13, 1982, to ascertain his response to the medication and corset, and on May 28, 1982, for a follow up visit. On June 30, 1982, he arranged for Plaintiff to have a myelogram; based on those results, Dr. LaRocca recommended a discography. He did not see Plaintiff again until March 5, 1984, at which time he recommended further testing since Plaintiff's physical condition had worsened since the June 30, 1982 visit. Plaintiff was hospitalized on April 16-18, 1984, to undergo a CAT scan and a discogram. LaRocca subsequently *1186 saw Plaintiff on June 11, 1984, August 15, 1984, January 25, 1985, and May 3, 1985; he told Plaintiff nothing was useful to him other than surgical treatment. There is no indication that Dr. LaRocca prescribed any further medications or orthopedic devices. On those visits, Dr. LaRocca noted that Plaintiff complained of the same pain problem. The record clearly shows that Dr. LaRocca was a treating physician, and as such, this testimony is entitled to the same weight as that of the other treating physicians.

Defendants further argue that the testimony of the physician who treated the Plaintiff the most contemporaneously with the accident is entitled to greater weight. Hayes v. Commercial Union Assurance Co., 459 So.2d 1245, 1250 (La.App. 1st Cir. 1984), writ denied, 462 So.2d 1247 (La. 1985). However, "positive findings of medical experts are to be afforded greater weight than the negative findings as to the existence or not of a particular condition." Campbell v. Luke Construction Co., 465 So.2d 688, 690 (La.1985) Results of CAT scans and myleograms have been held to constitute objective evidence of a herniated disc sufficient to support a claimant's subjective complaints. Jaeckle v. Dresser Industries, Inc., 457 So.2d 646 (La.1984).

While Dr. LaRocca did not treat Plaintiff as soon after his injury as did Drs. Jackson and Clifford, the CAT scan and myelogram he performed on Plaintiff showed a bulge at C4-5 and L5-S1. These objective findings supported the subjective complaints Plaintiff made following the accident. While Drs. Jackson and Clifford did treat Plaintiff immediately following the accident, they did not perform a CAT scan or a myelogram, which may have disclosed a Jackson and Dr. Clifford testified that after examining the CAT scan and myelogram results their opinion did not change that Plaintiff did not have a herniated disc. Both interpreted the test results in the light of their physical examinations of Plaintiff. The trial judge may consider the facts upon which an expert opinion is based in determining what weight to give the opinion. See Barry v. Western Electric Co., Inc., 485 So.2d 83 (La.App. 2nd Cir.), writ denied, 487 So.2d 441 (La.1986). For these reasons, we can not say that the trial judge was clearly wrong in giving the testimony of Dr. LaRocca greater weight than that of Drs. Clifford, Jackson, and Smith.

Defendants' second assignment of error is that the trial court erred in awarding Plaintiff worker's compensation because all the expert evidence showed that the work-related trauma did not cause Plaintiff's condition. According to Dickerson, 479 So.2d at 573-4:

The plaintiff in a worker's compensation suit must establish by a preponderance of evidence that the injury sustained was caused by the accident at issue. A claimant's disability is presumed to have resulted from an accident if before the accident the injured person was in good health but

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Bluebook (online)
514 So. 2d 1184, 1987 La. App. LEXIS 10448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mazoch-v-employers-cas-co-lactapp-1987.