Morris v. Owens Construction Co.

644 So. 2d 830, 93 La.App. 1 Cir. 2068, 1994 La. App. LEXIS 2658, 1994 WL 546178
CourtLouisiana Court of Appeal
DecidedOctober 7, 1994
DocketNo. 93 CA 2068
StatusPublished
Cited by1 cases

This text of 644 So. 2d 830 (Morris v. Owens 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
Morris v. Owens Construction Co., 644 So. 2d 830, 93 La.App. 1 Cir. 2068, 1994 La. App. LEXIS 2658, 1994 WL 546178 (La. Ct. App. 1994).

Opinion

SHORTESS, Judge.

Michael G. Morris (plaintiff) allegedly was injured on May 18, 1992, while in the course and scope of his employment with Owen1 Construction Company, Inc. (defendant). Plaintiffs request for worker’s compensation benefits was denied by defendant, who contended no accident had occurred. At the time of trial defendant had paid no compensation benefits to plaintiff, nor had it paid his medical expenses.

The hearing officer found that plaintiff had sustained an on-the-job injury, that he was disabled as a result of that injury, and that defendant was arbitrary and capricious in failing to pay benefits and medical expenses to plaintiff. Defendant appeals.

[832]*832FACTS

On May 18, 1992, plaintiff was employed by defendant as a laborer. Defendant was performing demolition work for the Kenner Housing Authority. Plaintiff testified that at the time of the accident his work crew was “gutting” apartments; that the floor of the apartment he was working in was flooded with one to three inches of water because a water main had inadvertently been left open; that he was removing tile from the walls in a small bathroom; that he was alone in the bathroom because the room was too small for more than one person to work in; that the maul he was using became stuck in wall plaster; and that when he tried to remove the maul from the wall, he slipped and hit his back on the edge of the bathtub.

Plaintiff further testified that he was dizzy and in severe pain for about three minutes; that he then got up and continued to work; that he did not report the accident immediately because he did not think he was seriously injured; |3that he mentioned to two fellow employees that day that he had “busted [his] ass”; that after work he walked three blocks to the apartment of a female acquaintance to watch a movie; that while relaxing on the sofa he “started feeling [his] back swelling, and the pain was getting in-tensed (sic)”; that he then walked home; and that while telling his mother good night he told her he hurt his back that day at work.

Plaintiffs mother, Dorothy Morris, testified that at about 10:30 p.m. on May 18 plaintiff told her he had injured his back at work that day. She told him she would take him to the doctor the next day.

The following day she took plaintiff to see Dr. Miguel A. Culasso, a specialist in emergency medicine. Culasso had treated plaintiff in April and May of 1991 for low lumbar pain. At that time, plaintiffs deep tendon reflexes were normal, and the straight-leg-raising test was negative. However, Culasso recommended plaintiff have a CT scan to rule out lumbar disc disease. Plaintiff testified he did not undergo that test because his pain went away.

After examining plaintiff on May 19, 1992, Culasso diagnosed lumbar radiculopathy. Culasso had no indication in his records from May 19,1992, of how plaintiff had injured his back. He assumed it was a continuation of the previous problems. His notation reads: “Had low back pain before, but not like this one. Low back pain for several.days_” Plaintiffs deep tendon reflexes were diminished on the left, and the straight-leg-raising test was now positive on the left. He recommended plaintiff have an MRI of the lumbar spine.

Plaintiff testified he called defendant’s office on May 19 after seeing Culasso and left a message for Rees Owen. On May 23 Monique Owen, Rees’s daughter-in-law, brought plaintiffs paycheck to his home. Plaintiff testified that he told her he had injured his back and needed to see a doctor; that |4she told him he would have to speak to Rees; that on May 25 and 26 he called Rees Owen’s residence, spoke to his wife, and asked that Rees call him; that Rees returned the call, denied that plaintiff had been injured, and asked that plaintiff not call any more; and that on May 27 plaintiff sent defendant a certified letter confirming his conversations with the Owenses and requesting that defendant pay his medical bills and lost wages.

Plaintiff saw Dr. Stewart E. Altman, a general surgeon, on June 6 and 10, 1992. Altman found decreased range of motion of the lumbar spine, a positive straight-leg-raising test, swelling and spasm of the back, a contusion of the hip, and a sprained knee. Plaintiff also saw Dr. Miller at Altman’s office on June 19. Miller’s findings were similar to Altman’s. Altman and Miller recommended plaintiff see an orthopedist.

On July 20,1992, plaintiff saw Dr. Alain F. Cracco, a board certified orthopedist, who had plaintiff undergo an MRI. That test showed a large left L-5/S-1 herniated nucleus pulposus. Cracco diagnosed herniated nucleus pulposus causing left sciatic neuritis. He testified this condition was caused by a traumatic incident. He recommended surgery. When plaintiff returned on December 29, 1992, Cracco noted progressive deterioration of his reflexes and again recommended surgery. On all visits Cracco told plaintiff he was to do no work of any kind.

[833]*833Plaintiff last saw Cracco on January 12, 1993. Cracco again recommended surgery and suggested that physical therapy, a nerve block, and local steroid injections might help until the surgery could he done. Cracco stated it was his understanding plaintiff did not return to him or have any of the recommended treatments because of his financial situation. In Craceo’s opinion, plaintiff cannot return to work in his previous occupation as a heavy laborer and without surgery has |sa 30% complete permanent partial impairment of the body as a whole. Plaintiff testified his condition has not improved since his last visit to Cracco.

Cracco stated it is not unusual for an individual to suffer a herniated disk and not feel severe pain until the next day. He said, however, if plaintiffs disk had herniated in May 1991, he would not have been able to engage in construction work thereafter.

Defendant attempted to show plaintiff had had an injury or accident between the May 19 visit to Culasso and the June 6 visit to Altman based on the lack of notations in Culasso’s records of a injury to plaintiffs hip and knee. Plaintiff denied any intervening trauma. Plaintiff stated that when he saw Culasso he did not complain about his hip or knee because “it took a couple of days to start swelling and bruising,” and his primary concern the day after the accident was his back. Culasso stated that if plaintiff had had a bruise on his knee or hip he would have expected to see some sign of it on his examination, but it is medically possible that the bruise would have been bigger three weeks later. Cracco stated a contusion might last for six to eight weeks, but if plaintiff injured his hip in the accident, he would expect the swelling to have significantly subsided by the time plaintiff saw Altman.

In support of its contention plaintiff did not suffer an on-the-job injury on May 18, defendant presented the testimony of Joseph J. Catchot, Mark Owen, and Monique Owen. Catchot testified that the water had been off for weeks at the jobsite; that there was no water on the floor in the apartment where plaintiff was working; that no mauls were being used at the jobsite; that he and plaintiff were working in such close proximity he would have known if plaintiff were using a maul or had fallen; that plaintiff had mentioned he injured his back on a previous job and continued to have back pain; and | ¡¡that numerous times plaintiff had not come to work.

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Cite This Page — Counsel Stack

Bluebook (online)
644 So. 2d 830, 93 La.App. 1 Cir. 2068, 1994 La. App. LEXIS 2658, 1994 WL 546178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-owens-construction-co-lactapp-1994.