Radecker v. Blue Plate Foods, Inc.

80 So. 2d 875, 1955 La. App. LEXIS 831
CourtLouisiana Court of Appeal
DecidedJune 15, 1955
DocketNo. 20558
StatusPublished
Cited by7 cases

This text of 80 So. 2d 875 (Radecker v. Blue Plate Foods, 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
Radecker v. Blue Plate Foods, Inc., 80 So. 2d 875, 1955 La. App. LEXIS 831 (La. Ct. App. 1955).

Opinion

REGAN, Judge.

The plaintiff, Mary Radecker, employed as a spice weigher, instituted this suit against the defendant, Blue Plate Foods, Inc., her employer, endeavoring to recover workmen’s compensation in the sum of $30 per week for a period of four hundred weeks, beginning June 12, 1953, subject to a credit of $63.58, for compensation previously paid, medical expenses not exceeding $1,000, attorney’s fees and penalties. Plaintiff asserts that she is totally and permanently disabled as a result of injuries incurred by her on May 22, 1953, when, in the course of her employment, she struck her left wrist on a metal shelf.

Defendant answered admitting the occurrence of the accident, but denied that the plaintiff was permanently and totally disabled as a result thereof and insisted that she has been paid all compensation to which she is entitled.

There was judgment in the court below in favor of the plaintiff in the amount of $27.82 per week for a period not exceeding four hundred weeks, beginning as of January 9, 1954, less a credit of $63.58 for compensation previously paid. The judgment further awarded the plaintiff an expert’s fee of $50. From that judgment the defendant has prosecuted this appeal. The plaintiff has answered the appeal requesting that the judgment be amended so to award plaintiff compensation as prayed for and that the expert’s fee be increased to the sum of $150. In oral argument before this court plaintiff’s counsel abandoned her initial claim for medical expenses, attorney’s fees and penalties.

The record reveals that on Friday, May 22, 1953, the plaintiff struck her left wrist on a metal shelf. Several days thereafter a “reddish lump” appeared at the situs of the injury and she was requested by the personnel manager, Carl R. Mundt, to report to defendant’s physician, Dr. Frank Cato. He diagnosed the condition emanating from [877]*877the injury as a “ganglion”, which we understand to be a hard tumor situated near a joint or connected with a tendon sheath, which usually appears elevated and round as the result of an effusion of viscid fluid into it. He advised that it be surgically removed, however, inasmuch as the plaintiff had previously arranged with Dr. Louis Gehbauer to perform a hysterectomy, he suggested that she return for treatment when that surgery and her convalescence therefrom was complete. The hysterectomy was performed in June of 1953, which caused plaintiff to ultimately obtain an unanticipated lengthy leave of absence from her employment extending from June through November, 1953.

On the last day of November, 1953, plaintiff returned to work and since the pain in her arm persisted, defendant’s personnel manager, in the early part of January, 1954, requested that she visit Dr. Cato. It was Mundt’s impression that the plaintiff actually struck her left wrist for a second time on a garlic can on or about January 6, 1954, and this was his reason for requesting her to return for another visit to Dr. Cato. On the other hand, plaintiff insisted that the only accident, the effects of which progressed and ultimately caused her total disability, occurred on May 22, 1953. In any event, she did visit Dr. Cato and after hospitalizing her, he removed the ganglion on January 9, 1954. Thereafter, she visited Dr. Cato for treatment on January 11, 19, 21, 25 and 26, 1954 and, on almost each occasion she complained of “pain” and “a weak grip.”

As a result of the operation on January 9, 1954, plaintiff was unable to resume her occupation until February 1, 1954. On the latter date she returned to her employment and Dr. Cato suggested that she be given “light work” to perform. She endeavored to discharge the relatively light duties of one or more positions in defendant’s plant, each of which required the use of both hands; plaintiff asserted that she suffered so much pain when using the left hand that she was forced to discontinue working. The last day of plaintiff’s employment was Friday, February 19, 1954.

There exists a dispute between the litigants as to whether the plaintiff informed the defendant of her inability to return to work after February 19, 1954. In this connection she stated that a telephone message to this effect was transmitted to the office of the personnel manager on Monday, February 22, 1954. The personnel manager, on the other hand, related that his office was not notified, but in response to persistent interrogation he conceded the possibility of his office having received such a message without his knowledge thereof.

In any event, plaintiff visited the offices of Dr. Cato for additional treatment on March 3, 5 and 10, 1954 and, on the latter date, the operative scar indicated increased sensitivity.

On April 23, 1954, plaintiff again visited Dr. Cato and, on this occasion, she was discharged despite the fact she still complained of pain and a keloid (excessive and connective scar tissue) had formed at the situs of the operation. Later on the same day she was informed by the personnel manager that she was “fired” for the reason that she had failed to satisfactorily explain her absence from work after February 19, 1954. On the following day she received a compensation check in the amount of $63.98, encompassing the period of January 16th through the 31st, 1954.

After the defendant’s doctor discharged the plaintiff she consulted her own physician, Dr. Gehbauer for treatment who, on the-trial of the case, expressed the opinion that sensory nerve fibres were caught in the scar tissue and the pain was being caused from the pressure on those nerve fibres; the scar was bound down to the underlying tissue because of its proximity to the tendons of the left forearm and this caused her to complain of a pulling sensation in the region of the scar when she endeavored to flex her left thumb. In consequence thereof, he expressed the opinion that predicated on his examination, treatment and knowledge of the patient, she was totally and permanently disabled and, therefore, unable to resume her former occupation [878]*878because of the persistent pain and weakness of grip in her left hand.

In opposition to the foregoing medical testimony defendant offered in evidence the opinions of Drs. Frank L. Cato and Charles Miangalarra.

Dr. Cato, it will be recalled, had discharged the plaintiff on April 23, 1954, as being capable of the full resumption of her employment. He related that she visited his office in November of 1954, at the request of the defendant in anticipation of the trial of this case, and, on that occasion, he found no abnormality existing in her hand or wrist except the keloid formation and the scar; there were no tendons fixed to it or bound down and, although plaintiff complained of tenderness of the scar, he convinced himself that this condition actually did not exist because he was able “to catch her off guard” and exert pressure on the scar without any complaint whatsoever.

Dr. Miangalarra, an office associate of Dr. Cato, related that he examined the plaintiff on November 8, 1954, and, as a result thereof, formulated the opinion that if plaintiff possessed the symptoms of pain that she complained of, the pathology was well above the shoulder and into the neck; “she might have a brachial plexis involvement because her symptoms, as she told them to me, involved all branches of the brachial plexis”, which could not be caused by a small scar on her wrist; in conclusion he asserted that his examination disclosed nothing but a scar and no abnormal effects emanating therefrom.

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80 So. 2d 875, 1955 La. App. LEXIS 831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/radecker-v-blue-plate-foods-inc-lactapp-1955.