Perry v. Hotard's Plumbing

436 So. 2d 1218, 1983 La. App. LEXIS 8740
CourtLouisiana Court of Appeal
DecidedJune 6, 1983
DocketNo. 83-CA-289
StatusPublished
Cited by2 cases

This text of 436 So. 2d 1218 (Perry v. Hotard's Plumbing) 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
Perry v. Hotard's Plumbing, 436 So. 2d 1218, 1983 La. App. LEXIS 8740 (La. Ct. App. 1983).

Opinion

CURRAULT, Judge.

This is an appeal by defendants, Hotard’s Plumbing, Inc. and their workmen’s compensation carrier, The Travelers Insurance Company, from a judgment granting plaintiff, Robert F. Perry, permanent and total disability benefits.

Robert F. Perry, plaintiff, was employed by defendant, Hotard’s Plumbing, Inc., as an air conditioning repairman and installer from 1976 until 1980, with a rate of pay of $7.25 per hour. He is a 42 year old man with no special vocational skills or training other than on-the-job experience and who completed half a semester of the tenth grade. In February, 1980, plaintiff claimed to suffer an injury to his back while in the course and scope of his employment. After [1220]*1220notifying his employer, he began medical treatment which has continued to date. Compensation was initially paid to plaintiff until July, 1980, at which time it was terminated. Upon refusal of defendants to continue benefits, suit was filed on July 30, 1980. The case came to trial on May 5, 1982, and in judgment rendered September 22, 1982, plaintiff was awarded compensation benefits in accordance with LSA-R.S. 23:1221(1) and (2) for temporary, total and/or permanent total disability at the rate of $148 per week plus all medical, surgical, medication and rehabilitation expenses in relation to the injury.

As a result of that judgment, defendants perfected this appeal.

Appellant presents the following assignment of errors for review:

I. that the trial judge erred in finding that plaintiff proved that he sustained an accident and injury within the course and scope of his employment; and

II. that the trial judge erred in finding that plaintiff was permanently and totally disabled.

In regard to the first error assigned by appellant, the law is clear that in a workmen’s compensation case the employee has the burden of proving that his injuries are the result of an accident which occurred in the course and scope of his employment. La.R.S. 23:1031. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Appellant argues that plaintiff did not bear his burden and prove, more probable than not, that his back problems resulted from or were aggravated by an accident which occurred while he was working. We disagree.

The disability of the employee will be presumed to have resulted from employment if, prior to the accident, the employee was in good health; but, subsequent to the accident, symptoms of disabling condition appear and continuously manifest themselves. However, the presumption is rebut-table by sufficient contrary evidence. Field v. Winn Dixie Louisiana, Inc., 427 So.2d 616 (La.App. 5th Cir.1983). In this regard, an employee’s testimony is sufficient to establish that an accident occurred within the course and scope of the employment if the employee’s testimony is corroborated by other credible evidence. Irvine v. Sentry Insurance Co., 415 So.2d 467 (La.App. 1st Cir.1982); Gurry v. Allied Metals, Inc., 379 So.2d 871 (La.App. 4th Cir.1980). Furthermore, the employee's own testimony is to be accepted as true “at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony.” West v. Bayou Vista Manor, Inc., supra, at 1147.

Appellant complains that the testimony of appellee, Mr. Perry, regarding the date and manner of the injury was inconsistent and uncorroborated. The trial court ultimately determined that the injury occurred on February 11, 1980, after reviewing the employer’s first report of injury and listening to the testimony. A review of the record reveals that while appellee did offer several dates for the injury, the specific date was established by competent evidence. As appellant notes, in and of itself, these discrepancies in appellee’s testimony could be excused for any number of reasons. However, appellant urges that appel-lee’s testimony and statements as to the manner of the injury were also inconsistent, uncorroborated and contradictory.

The record reveals that appellee attributed his injury to one, or both, of two incidents that occurred on the date in question. The first incident involved a slip and fall while he was carrying an air conditioning unit to be installed in a customer’s house. The other incident occurred later in the day while crawling under the same house. As appellant notes, the record does reveal some variations in the description of how appellee was hurt. In testimony, he stated that while carrying the air conditioning unit with a helper he slipped and the unit fell on his knees. In deposition, he stated his helper slipped and the unit fell across his waist.

In describing the second incident, appel-lee stated in testimony that, while he was crawling under the house, he hit his back on a sewer stub. In deposition he claimed he [1221]*1221struck his neck. Appellee’s helper and only witness to the events, Garland Powell, testified that while he did not recall the incident involving the air conditioning unit, he did recall appellee complaining that he hit his neck immediately after crawling out from under the house. Mr. Powell also stated that appellee had complained about his back some time during that day, but the record reflects his testimony in this regard was vague as to precisely when his complaints began. The record also reveals that appel-lee reported the injury to his employer and at that time, according to the report, attributed the injury to the slip and fall.

Appellee’s work history reveals that, pri- or to the date of the claimed injury, appel-lee was a reliable employee who rarely lost time from work. Subsequently, however, he sought medical treatment and was unable to return to work as was amply demonstrated by the medical evidence.

It is well established that the standard of review by the appellate courts on factual findings made by the trial court is limited to whether the fact finder was manifestly erroneous in its determination. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978); Field v. Winn Dixie Louisiana, Inc., supra. After considering all the evidence, it is our opinion that the trial court was not clearly wrong in finding that the appellee suffered an injury to his back while in the course and scope of his employment.

Appellant alleges, secondly, that appellee failed to prove that his injury constitutes a permanent and total disability within the meaning of the workmen’s compensation act. In order to obtain that status under the act, the plaintiff must prove that he is unemployable, whether or not in the same or similar occupation. LSA-R.S. 23:1221 (et seq.) Further, “A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability.” Wilson v. Ebasco Services, Inc., 393 So.2d 1248, 1251 (La.1981). The question of physical inability to work and inability to return to work due to substantial pain is one of fact and will not be disturbed unless the trial court’s findings are clearly wrong. Field, supra.

The evidence herein indicates that appellant suffers from a continuing deteriorating back problem which may or may not be alleviated by surgery in the future.

The incident in question occurred in February, 1980. From that date to the present, the medical evidence reveals that appellee’s complaints of back and neck pain, along with a loss of sensation in his right leg, have remained constant.

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436 So. 2d 1218, 1983 La. App. LEXIS 8740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-hotards-plumbing-lactapp-1983.