Nash v. Ewing Timber, Inc.

431 So. 2d 893
CourtLouisiana Court of Appeal
DecidedMay 3, 1983
Docket15358-CA
StatusPublished
Cited by7 cases

This text of 431 So. 2d 893 (Nash v. Ewing Timber, 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
Nash v. Ewing Timber, Inc., 431 So. 2d 893 (La. Ct. App. 1983).

Opinion

431 So.2d 893 (1983)

James Edward NASH, Plaintiff-Appellant,
v.
EWING TIMBER, INC. and Worldsurance, Inc., Defendants-Appellees.

No. 15358-CA.

Court of Appeal of Louisiana, Second Circuit.

May 3, 1983.

*894 Gordon, Bailey & Associates by Norman R. Gordon, Shreveport, for plaintiff-appellant.

*895 Blake & May by John C. Blake, Jonesboro, for defendants-appellees.

Before HALL, JASPER E. JONES and NORRIS, JJ.

HALL, Judge.

The plaintiff in this workers' compensation suit is James Edward Nash who was a pulpwood producer working for Ewing Timber, Inc. The defendants are Ewing Timber, Inc., plaintiff's employer, and Worldsurance, Inc., Ewing's workers' compensation insurer. Plaintiff filed this suit in September 1981, seeking total and permanent disability benefits for injuries and disability allegedly resulting from an accident which occurred when he fell from a pulpwood truck on June 30, 1979. Plaintiff had previously been paid compensation benefits for 93 weeks. After trial the district court found that plaintiff had recovered from the injuries he received in the accident and that plaintiff had failed to bear his burden of proving that his disability existing at the time of trial was caused by the injuries received in the accident. From a judgment rejecting his demands plaintiff appealed. For reasons expressed in this opinion we reverse the judgment of the district court and render judgment in favor of the plaintiff for total and permanent disability benefits and rejecting plaintiff's demands for penalties and attorney fees.

Plaintiff, in his mid-fifties, is an uneducated man who, as found by the trial court, "has evidently worked very hard his entire life prior to this accident." His work had always consisted of moderate to heavy manual labor. He had worked as a pulpwood producer for 15 years, seldom if ever missing a day's work and without complaint.

At the time of the accident plaintiff was standing on top of logs which had been loaded on a flatbed truck when one of the chains binding the logs slipped, pulling plaintiff off of the truck and throwing him to the ground, a distance of about 8 to 10 feet. As he was falling plaintiff hit his elbow on the winch lever and then landed on his back. Plaintiff immediately sought treatment for his injured elbow from a general practitioner, and during the ensuing two and one-half years until trial in December 1981 was seen and treated by numerous doctors for complaints relating to his right arm, neck, low back, and knees.

Plaintiff continued to work for about three months following his injury until the end of September or the first of October, limiting his activities to supervising and driving the truck because of elbow, back, and knee pain. Prior to the accident plaintiff performed all of the heavy work necessary for the production of pulpwood including sawing, loading logs onto the truck, and driving the truck to the woodyard.

The report of the general practitioner, Dr. Middleton, who plaintiff saw on the day of the accident noted only a finding of contusion of the right elbow with nerve irritation and the doctor's opinion that plaintiff should be able to resume regular work in about three days. On July 18, about six weeks after the accident, plaintiff went to see Dr. Simonton, an orthopedic surgeon. On the initial visit Dr. Simonton noted that plaintiff had a small chip fracture in the right elbow and narrowing of cartilage space and spurring in the right knee. Dr. Simonton saw plaintiff again on August 1, August 15, and September 7 during which time he treated plaintiff for the injuries previously noted and made X rays of his cervical spine. Dr. Simonton's deposition discloses that the plaintiff mentioned pain in his right elbow, up the arm to the shoulder and into the shoulder, pain in his left knee, and in his neck. Dr. Simonton was of the opinion that because of osteoarthritis in the cervical spine and degenerative joint disease plaintiff could anticipate a progressive increase in symptoms over a period of time and that he would have difficulty performing work requiring heavy lifting, bending, or similar activities. The doctor was of the opinion that plaintiff's arthritic condition had been aggravated as a result of the accident, that he had recovered from the aggravation, but that he would expect plaintiff to continue to have trouble indefinitely. Although Dr. Simonton was firm in his opinion that any aggravation *896 of plaintiff's arthritic condition caused by the fall should have cleared up, the doctor did answer "yes" when asked if the fall superimposed on the preexisting arthritic difficulty left plaintiff in pretty bad shape and when asked if the aggravation of his preexisting condition precipitated and exacerbated his disability. Dr. Simonton saw plaintiff again on September 25 and October 19, but not thereafter.

The plaintiff was examined by Dr. Smith, a specialist in rehabilitative medicine with the Lincoln General Hospital in Ruston. Dr. Smith testified that plaintiff mentioned that he had been experiencing back pain but that it was much better. Dr. Smith had plaintiff admitted to the hospital, from which he was discharged on November 7. The hospital records reflect low back pain as one of the plaintiff's significant symptoms. Dr. Smith saw plaintiff again on December 10 at which time the doctor discharged him, finding no fracture of the elbow and no disability of the back. Dr. Smith was of the opinion that plaintiff probably could drive a pulpwood truck at that time.

On December 17, 1979 plaintiff was examined by Dr. Green, an orthopedic specialist in Shreveport. Plaintiff complained of low back pain since the accident in June and of left leg pain. Dr. Green found that plaintiff was suffering from degenerative joint and disc disease and his diagnosis was lumbosacral sprain, persisting joint and disc disease of the lumbar spine. Dr. Green was of the opinion that plaintiff had a relatively acute problem resulting from an aggravation of his preexisting joint and disc disease of the lumbar spine. Plaintiff was seen by Dr. Green again on January 7, 1980 and on January 28, February 18, and March 11. Dr. Green noted that plaintiff was extremely agitated. At this time plaintiff was having more problems with his elbow and Dr. Green had him evaluated by a neurologist. Based on the neurological findings Dr. Green referred plaintiff to Dr. Long, a Shreveport neurosurgeon, for examination and treatment of the elbow injury.

The plaintiff was examined by Dr. Long on March 14, 1980. Dr. Long noted plaintiff's low back pain problem which he did not address because that was being attended to by Dr. Green. Dr. Long performed surgery on March 25 to correct the ulna nerve compression problem and plaintiff was discharged from the hospital three days later. Dr. Long was of the opinion that insofar as the elbow problem was concerned, if plaintiff had had no other problems he would have been able to go back to work in three months after surgery. However, Dr. Long continued to see plaintiff on numerous occasions during which time plaintiff complained of back pain, left upper arm pain, multiple joint complaints, particularly neck, right shoulder, right elbow, and left hip. The doctor noted that plaintiff was extremely nervous. Dr. Long examined and treated plaintiff on April 4 and 21, May 26, June 23, and August 22, 1980. Dr. Long was of the opinion that plaintiff's arthritic back condition had been aggravated by the on-the-job injury. He thought plaintiff possibly ought to have a myelogram and referred him back to Dr. Green for evaluation. Dr.

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