Oalmann v. Brock and Blevins Co., Inc.

428 So. 2d 892, 1983 La. App. LEXIS 7870
CourtLouisiana Court of Appeal
DecidedFebruary 22, 1983
Docket82 CA 0498
StatusPublished
Cited by8 cases

This text of 428 So. 2d 892 (Oalmann v. Brock and Blevins Co., 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
Oalmann v. Brock and Blevins Co., Inc., 428 So. 2d 892, 1983 La. App. LEXIS 7870 (La. Ct. App. 1983).

Opinion

428 So.2d 892 (1983)

Edgar Ernest OALMANN
v.
BROCK AND BLEVINS COMPANY, INC., et al.

No. 82 CA 0498.

Court of Appeal of Louisiana, First Circuit.

February 22, 1983.

*893 J. Michael Cumberland, New Orleans, for plaintiff, appellant.

Michael J. Paduda, Bogalusa, for defendant, appellee.

Before COVINGTON, LANIER and ALFORD, JJ.

COVINGTON, Judge.

Plaintiff, Edgar E. Oalmann, appeals a judgment in favor of defendants, Brock and Blevins Company, Inc. and United States Fidelity and Guaranty Company, denying him workers' compensation benefits for a disability allegedly sustained while employed by Brock and Blevins. U.S.F. & G. was sued as the employer's workers' compensation insurer. We reverse.

The plaintiff was employed as an iron worker doing rigging work for his employer, Brock and Blevins, at the papermill of Crown Zellerbach, Inc. in Bogalusa, Louisiana. He was sent to this job by his local union hall in July, 1979 and worked on the job until November, 1979. While engaged in this work, plaintiff claims to have sustained "an accident when he was bit (sic) by an insect [flea], thereby causing him to contract a grave illness, Tyfus (typhus) fever."

On November 21, 1979, plaintiff was admitted to the St. Tammany Parish Hospital with initial symptoms of chills, high fever, and severe headache. The treating physician was his family doctor, Dr. M.L. Pittman, Jr., who diagnosed plaintiff's illness as typhus (Dr. Pittman testified that the incubation period of typhus is seven to thirty days); the plaintiff also was diagnosed as having hepatitis. He remained in the hospital for a period of 26 days, and was unable to return to work for more than three months.

On appeal the plaintiff specified certain errors committed by the trial judge in reaching his decision which may be summarized as follows:

1. The trial court erred in admitting the medical treatise offered by defendants, because it is hearsay.

2. The trial court abused its discretion in determining that the employee had not met his burden of proof regarding causation between the flea bites at work and the resulting typhus fever.

We must first decide whether the court erred in admitting the medical treatise in evidence (for the purpose of impeaching the testimony of plaintiff's physician).

While the trial court has considerably more discretion than usual in workers' compensation cases and the formal rules of evidence are relaxed pursuant to LSA-R.S. 23:1317, the court is not authorized to disregard completely rules of evidence and rely on evidence that is clearly inadmissible. See Highstreet v. Regency Apartment Hotel, 337 So.2d 536 (La.App. 4th Cir.1976), writ denied 340 So.2d 994 (La.1977); 38 La.L.Rev. 502 (1978).

Medical treatises, being extrajudicial and unsworn statements by persons not available in court for cross-examination, are objectionable as hearsay evidence.[1] Such treatises cannot be admitted as independent evidence of the opinions expressed in them. *894 See Brown v. Collins, 223 So.2d 453 (La. App. 3rd Cir.1969). We hold that the trial court erred in admitting the treatise in evidence.

On the question of whether the plaintiff sustained his burden of proof, we consider LSA-R.S. 23:1021(1), which defines

"accident" as "... an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury." Byrer v. Southern Baptist Hospital, Inc., 350 So.2d 1233 (La.App. 4th Cir.1977).

If there is a suddenness either in the precipitating incident or in the manifestation of disability, the requirement of "accident" is satisfied. Self v. Riverside Companies, Inc., 382 So.2d 1037 (La.App. 2d Cir.1980), writ denied 385 So.2d 793 (La.1980); Francis v. Kaiser Aluminum & Chemical Corporation, 225 So.2d 756 (La.App. 4th Cir.1969).

The Louisiana Supreme Court has set forth the applicable legal principles governing the burden of proof necessary to establish a work-related injury in West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979), as follows:

In a workman's compensation suit, the employee must establish the work-accident causing the injury by a preponderance of the evidence—i.e., "the testimony, as a whole, must show that more probably than [not] the employment accident caused the disability." Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347, 349 (La.1974). The causal relationship may be inferred when there is proof of an accident and an ensuing disability without an intervening cause. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).
In evaluating the evidence, the trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony. Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967); Farley v. Ryan Stevedoring Co., 238 La. 1048, 117 So.2d 587 (1960); Bonanno v. Decedue, 186 La. 1041, 173 So. 756 (1937).

With these principles in mind, we view the evidence in the record in the instant case.

At the trial on the merits, lay witnesses and a medical witness testified.

Edgar Oalmann testified that there were rats on the job site:

Q. Edgar, had there ever been any problems that you know of with rats being on the grounds there?
A. They have had rats all over the place down there.
Q. Did you see the rats?
A. I seen the rats.
Q. That was on the Crown Zellerbach plant that you're talking of now?
A. Crown Zellerbach.

Craig Oalmann also testified to seeing rats on the job site:

A. Had you ever seen any rats while you worked out at the mill?
A. Sure.
Q. Were they live rats?
A. Uh-huh, yes.
Q. Did you ever see any dead rats?
A. Yea ...
Q. Where did you see the dead rats?
A. Dead rats I seen were like under the equipment we were moving...

The presence of rats on the job site was further testified to by another co-worker, Victor Montgomery:

Q. When you worked there, did you ever see any rats?
A. Yeah, they had big rats there.
Q. Were they alive?
A. Uh-huh.

Concerning the "incident" whereby he contracted typhus fever, Oalmann testified:

Q. While you were working at the Crown Zellerbach plant, did you ever have any problems with any insects?
A. Fleas is about the only thing I have had any problem with.
Q. Would you tell me about the problems you had with fleas?
*895 A. Well I got into them. I reckon three or four times I got some on me, you know different times ....
Q. What happened when you got into these fleas?
A. Well they—I got some on my leg and, like I say, three or four times and they—just like bite you, you reach down there and scratch it. You knock them off.
Q. Did any of these fleas bite you that you know of?
A. Yes.

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Bluebook (online)
428 So. 2d 892, 1983 La. App. LEXIS 7870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oalmann-v-brock-and-blevins-co-inc-lactapp-1983.