Nelson v. Travelers Insurance Co.

461 So. 2d 514, 1984 La. App. LEXIS 10155
CourtLouisiana Court of Appeal
DecidedDecember 12, 1984
DocketNo. 83-1105
StatusPublished
Cited by1 cases

This text of 461 So. 2d 514 (Nelson v. Travelers Insurance 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
Nelson v. Travelers Insurance Co., 461 So. 2d 514, 1984 La. App. LEXIS 10155 (La. Ct. App. 1984).

Opinion

DOMENGEAUX, Judge.

This appeal arises out of a worker’s compensation case. Plaintiff brought this suit seeking to recover benefits for injuries sustained in connection with his employment for Avoyelles Valve, Inc.

The underlying facts which gave rise to this appeal may be briefly stated as follows: From October 20, 1980, until May 24, 1982, plaintiff was employed as a maintenance laborer for Avoyelles Valve, Inc. During this period of time plaintiff suffered four separate job related injuries. At the time of the first three injuries Travelers Insurance Company was the employer’s worker’s compensation insurer. Some time shortly before the fourth injury the defendant — employer secured worker’s compensation coverage from Southern States Insurance Company.

Plaintiff was initially injured in the course and scope of his employment on October 20, 1980. This accident occurred when plaintiff was attempting to lift a 100 to 200 pound piece of equipment. After the injury Mr. Nelson was treated by Dr. Richard Michel, a general practitioner in Marksville, Louisiana. Doctor Michel diagnosed the injury as “bilateral paravertebral muscle spasm” and referred plaintiff to Dr. R.J. Beurlot, an orthopedist in Alexandria, Louisiana. Doctor Beurlot treated plaintiff and released him to return to work on November 14, 1980. During the time of plaintiff’s recovery he received compensation payments from Travelers.

After plaintiff had returned to work he sustained two other accidental injuries on May 14, 1981, and on January 10, 1982. Both times plaintiff was treated by Doctor Michel and released to return to work in just a few days.

On May 24, 1982, plaintiff sustained a fourth accidental injury which is the subject of this appeal. After this injury plaintiff was treated by Doctor Michel again and referred to Dr. Bruce Razza, an orthopedist who specializes in disorders of the spine. Doctor Razza diagnosed Mr. Nelson as having a disabling injury termed retrol-isthesis at the L-5-S-1 level and also L-4-5 levels of the spine.

On January 31, 1983, plaintiff brought suit against his employer, Avoyelles Valve, Inc., and its alleged worker’s compensation insurer, Travelers Insurance Company. In his petition plaintiff alleges that he had been disabled by the job related accident which occurred on October 20, 1980. Sub[516]*516sequently on June 21, 1983, he filed a supplemental and amending petition in which he alleged three additional injuries which occurred on May 14, 1981, January 20, 1982, and May 24, 1982. It is plaintiffs contention that the last three accidents simply aggravated the initial injury caused by the October 20, 1980 accident. During the time of the first three accidents Travelers was the employer’s worker’s compensation insurer. Southern States Insurance Company who was presumably the employer’s worker’s compensation insurer at the time of the last accident of May 24, 1982, was impleaded as a third party defendant by Avoyelles Valve, Inc. Before the proceedings began the trial court severed the employer’s third party demand against Southern States Insurance Company.

After trial of the matter the lower court found no liability on the part of Travelers but found the plaintiff to be totally and permanently disabled and entered judgment in favor of the plaintiff against the defendant employer. From that judgment both parties have appealed. The issues on appeal are: (1) Whether the trial court’s factual determinations are correct; (2) Which of the employer’s worker’s compensation carriers should be liable, i.e., Travelers or Southern States Insurance Company, or both? (3) Is plaintiff entitled to statutory penalties and attorney’s fees from Travelers?

In finding liability on the part of Avo-yelles Valve, Inc., the trial court made the following findings: (1) Plaintiff was totally and permanently disabled; (2) Plaintiff fully recovered from his first three accidents; and (3) That it was the March 24th injury which totally and permanently -disabled plaintiff.

On appellate review the trial court’s factual findings are entitled to great weight and should not be disturbed when there is evidence before the trier of fact which upon the latter’s reasonable evaluation of credibility furnishes a reasonable factual basis for the trial court’s findings. Unless clearly wrong a reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact, even though the reviewing court may be of the opinion that other evaluations and inferences are as reasonable. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979).

The trial court’s finding that plaintiff is totally and permanently disabled was amply supported by the record. The uncon-tradicted medical testimony of Doctor Raz-za and Doctor Michel show that they were both of the opinion that as of the time of the trial plaintiff was totally and permanently disabled and unable to return to work.

Also supported by the record is the trial court’s finding that plaintiff fully recovered from the first three accidents because Doctor Michel, who treated plaintiff after each of his four accidents, stated that: “Plaintiff has fully recovered from the first three accidents, regaining his pre-accident status following limited treatment.”

The trial court’s finding that plaintiff’s disability was a result of his May 24, 1982 accident is also correct. In order to be partially disabled a plaintiff’s injuries must prevent him from performing the duties in which he was customarily engaged when injured or prevent him from performing duties of the same or similar character, nature, or description for which he was suited by education, training, and experience. Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La.1982). After each of plaintiff’s first three accidents, he returned to his employment after little or no time off and performed the same duties as he performed prior to his injury. Thus plaintiff could not have been considered even partially disabled after any of the first three accidents.

The jurisprudence has also recognized that a worker may be considered partially disabled where an employee experiences substantial pain when working in his former occupation but cannot perform other work without experiencing such pain. McBroom v. Argonaut Insurance Company, 370 So.2d 212 (La.App. 3rd Cir.1979). [517]*517However, the evidence in this case does not indicate plaintiff suffered this type of pain. As pointed out earlier, according to Doctor Michel, plaintiff fully recovered from the first three accidents. There is no history of an on-going medical treatment after any of those first accidents. The medical evidence in the record when taken as a whole strongly supports the conclusion that plaintiff fully recovered from the first three accidents and was totally and permanently disabled by the fourth.

For the reasons to which we have adverted, the uncontradicted medical evidence, in conjunction with the lay testimony, and the governing law applicable thereto, we are required to affirm the trial court’s conclusion that: (1) Plaintiff is now totally and permanently disabled; (2) Plaintiff fully recovered from his first three accidents; and (3) The accident which disabled plaintiff occurred on May 24, 1982.

At trial the defendant-employer claimed that it was the first injury which disabled plaintiff and that the three subsequent accidents simply aggravated the injury of October 20, 1980.

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Related

Nelson v. Travelers Insurance Co.
465 So. 2d 736 (Supreme Court of Louisiana, 1985)

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461 So. 2d 514, 1984 La. App. LEXIS 10155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-travelers-insurance-co-lactapp-1984.