Reed v. Southern Baptist Hosp.

541 So. 2d 233, 1989 WL 23189
CourtLouisiana Court of Appeal
DecidedMarch 14, 1989
Docket88-CA 1368
StatusPublished
Cited by2 cases

This text of 541 So. 2d 233 (Reed v. Southern Baptist Hosp.) 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
Reed v. Southern Baptist Hosp., 541 So. 2d 233, 1989 WL 23189 (La. Ct. App. 1989).

Opinion

541 So.2d 233 (1989)

Robert REED
v.
SOUTHERN BAPTIST HOSPITAL and Underwriters Adjusting Company, Inc.

No. 88-CA 1368.

Court of Appeal of Louisiana, Fourth Circuit.

March 14, 1989.

Denis Paul Juge, Jeffrey C. Napolitano of Sutherland, Juge & Keevers, New Orleans, for defendants/appellants.

Before CIACCIO, LOBRANO and WILLIAMS, JJ.

CIACCIO, Judge.

In this worker's compensation case defendant-employer appeals a judgment awarding plaintiff-employee compensation for total, permanent disability. Defendant specifies four assignments of error. We amend the judgment and, as amended, affirm.

In 1969, plaintiff began working for defendant as a porter. He was promoted to *234 scrub porter and remained in that capacity until he stopped working for defendant in 1987. At that time plaintiff was 61 years old.

In 1983, plaintiff hurt his back and missed a month of work; defendant paid him worker's compensation. In 1984 he experienced problems with his back and missed a week of work; defendant paid him worker's compensation. From 1984 to 1987 plaintiff did not miss any work because of his back, nor did he receive any worker's compensation.

In 1987, back pain caused plaintiff to seek medical attention. His job as scrub porter involved a lot of bending, stooping, reaching and lifting; he mopped floors, which required filling, lifting and emptying the mop buckets containing four to six gallons of water; he operated a large, commercial floor buffer; he picked up trash, emptied trash cans, and performed general clean-up duties such as dusting venetian blinds and toting laundry bags. Plaintiff found that his work caused his back to hurt so that he could work no more. In April 1987, he stopped working, collected sick pay through July 1987, and then took early retirement, collecting $146.50 a month.

On April 10, 1987, because the pain in his back had worsened so that he could not work, plaintiff sought treatment from Dr. Courtney Russo, an orthopedic surgeon. Dr. Russo frequently had seen plaintiff at work and was familiar with plaintiff's daily work duties because plaintiff worked on the floor in the hospital where Dr. Russo often performed surgery. Plaintiff gave Dr. Russo a history of back pain which gradually had increased in the two or three weeks prior to his visit to Dr. Russo's office. Plaintiff gave no history of any particular occurrence when his pain suddenly became worse, only that as he worked he experienced pain which recently had increased, gradually reaching a level that prevented him from working.

Dr. Russo considered plaintiff's condition to be an aggravation of his prior back problems, now becoming symptomatic. He considered that the aggravation could have resulted from the physical strain of plaintiff's usual course of daily work duties. Dr. Russo initially administered conservative treatment, to which plaintiff showed slight improvement, but eventually admitted plaintiff to the hospital for diagnostic tests.

Plaintiff underwent a myelogram and CT scan. From these tests Dr. Russo diagnosed plaintiff as having two herniated discs, arthritis inside of the spine and spinal stenosis. His recommended treatment was a decompressive laminectomy to remove the herniated discs and the arthritic bone.

Dr. Russo performed the recommended surgery on May 22, 1987. Dr. Russo opined unequivocally that plaintiff's back condition was caused and aggravated by the physical strain of plaintiff's normal daily work duties at the hospital. Dr. Russo classified plaintiff as totally and permanently disabled from doing the type of work he had been doing at the hospital and noted that he will need regular pain and arthritic medication and regular doctor visits to monitor his condition and regulate his medication. Further, Dr. Russo advised that plaintiff should restrict future physical activity to lifting no more than 15 or 20 pounds, sitting or standing in one position or walking about for no more than an hour at a time, with a workday of no more than two to four hours.

Defendant offered evidence that plaintiff at home had engaged in physical activity such as mopping, sweeping and raking leaves, suggesting that this activity just as probably as his work duties could have caused and aggravated his back condition. Defendant also presented the testimony of a vocational rehabilitation counselling expert, who suggested available jobs plaintiff should be able to perform without violating any of the physical restrictions imposed by Dr. Russo.

Defendant complains first that no compensable work-related accident occurred.

... extraordinary physical stress and strain is not essential to the definition of disabling accident: when the performance *235 of the usual and customary duties of a workman cause or contribute to a physical breakdown, the statutory requirements for an accidental injury are present. Parks v. Insurance Company of North America, 340 So.2d 276 (La. 1976); Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972); Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1968). See also McCoy v. Kroger Co., 431 So.2d 824 (La.App. 2d Cir.1983); Ferrand v. Kaiser Aluminum and Chemical, 398 So.2d 37 (La. App. 4th Cir.1981); and Gales v. Great Atlantic and Pacific Tea Co., 342 So.2d 241 (La.App. 4th Cir.1977). Further, if a worker is afflicted with a pre-existing condition which in its ordinary course may have produced disability, he is nevertheless entitled to worker's compensation if a work related "accident" brings about disabling consequences. Malloy v. AT & T Consumer Products, 475 So.2d 80 (La.App. 2d Cir.1985); see Allor v. Belden Corporation, 393 So.2d 1233 (La. 1981); Green v. New Orleans Public Service, Inc., 413 So.2d 257 (La.App. 4th Cir.1982).

Houston v. Kaiser Aluminum and Chemical, 531 So.2d 1129, 1131-1132 (La.App. 4th Cir.1988).

There is no evidence that plaintiff was other than healthy when he began working for defendant. The evidence supports the trial judge's conclusion that after eighteen years in defendant's employ plaintiff suffered disabling consequences from the physical stress and strain of his usual and customary duties for defendant. Our state's jurisprudence interpreting our statutory scheme for worker's compensation, specifically the definition of "accident," supports the trial judge's finding of an accident.

Whether there is a causal relationship between a claimant's disability and his employment is a question of fact. The factual findings of the trial court on whether a disability was caused by a work-related accident are entitled to great weight on appellate review. Martin v. H.B. Zachary Company, 424 So.2d 1002 (La.1982); Houston v. Kaiser Aluminum and Chemical, above. The record before us supports the trial judge's finding that plaintiff's disability is causally related to his employment with defendant, rather than to his activity at home or elsewhere. We, therefore, will not disturb that finding.

Defendant next complains of the finding of total and permanent disability. Plaintiff is a man in his sixties with a seventh grade education who suffers relatively severe restrictions on his physical activity, including no heavy lifting or repetitive bending or stooping, no sitting, standing in one position, or walking for more than an hour at a time, and a workday of only two to four hours. There is no prognosis for improvement.

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Bluebook (online)
541 So. 2d 233, 1989 WL 23189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reed-v-southern-baptist-hosp-lactapp-1989.