Robertson v. Scanio Produce & Institutional Foods, Inc.

435 So. 2d 602, 1983 La. App. LEXIS 8851
CourtLouisiana Court of Appeal
DecidedJuly 8, 1983
DocketNo. CA-0447
StatusPublished

This text of 435 So. 2d 602 (Robertson v. Scanio Produce & Institutional 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
Robertson v. Scanio Produce & Institutional Foods, Inc., 435 So. 2d 602, 1983 La. App. LEXIS 8851 (La. Ct. App. 1983).

Opinion

AUGUSTINE, Judge.

Plaintiff Richard Robertson instituted this action for workmen’s compensation following a job-related accident which occurred during his employment with Scanio Produce and Institutional Foods, Inc. The trial court rejected plaintiff’s demand, and this appeal followed. We affirm.

The salient facts are these:

The accident in question occurred on December 24, 1980 when the plaintiff, while pulling a hand truck loaded with five cases of frozen chicken, tripped over an object and fell backwards. The full sixty-pound weight of the crates tumbled down upon Robertson, causing painful injury to his lower back. That day, plaintiff was admitted to West Jefferson Hospital, where his condition was diagnosed as a severe lumbar strain. Following plaintiff’s release from the hospital on January 14,1981, he continued to experience pain in the lumbar area. On January 22, 1981, a week after his discharge from West Jefferson Hospital, the plaintiff was informed by his treating physician, Dr. L. Thomas Cashio, that he might return to work, provided that he perform only light activities which would not require climbing or lifting.

Dr. Cashio saw the plaintiff on three subsequent occasions and each time noted a gradual improvement in Robertson’s condition. During the second of these visits, on February 19,1981, Dr. Cashio’s examination of the plaintiff revealed good range of motion of the back and an absence of muscle spasms in the lumbar region. Straight leg raise tests also proved negative, indicating no irritation to the nerve roots of the lumbar spine. Although Robertson continued to report pain in the lower back, Dr. Cashio informed the plaintiff that his recovery was sufficient to allow his return to normal activities as a truck driver for Scanio.

Plaintiff did not return to his job with defendant Scanio, but instead found employment as a truck driver with Crescent Construction Company from March 20, 1981 until May 4, 1981. Robertson then worked as a trench operator for Highlines Construction Company from May 26,1981 to July 28, 1981. Between September 17,1981 and October 30, 1981, the plaintiff was a sandblaster for P.A. Applicators, Inc. of Morgan City, Louisiana. Finally, in January 1982, Robertson worked for his landlord, helping to repair the roof of the Riviera Restaurant. The work was intermittent, dependent as it was upon favorable weather conditions.

Not long after leaving his landlord’s employ at the Riviera, the plaintiff was advised by his attorney to visit Dr. David M. Jarrott, a neurosurgeon. Dr. Jarrott saw Robertson for the first time on March 1, 1982, fourteen months after the accident which is the basis of this suit. During that visit, the plaintiff’s chief complaint concerned the persistence of pain in the lower back, and for the first time, he reported pain in his right leg that sometimes felt like needles and pins. After performing a number of tests and examinations (including a myelogram), all of which proved to be negative, Dr. Jarrott decided to perform a disco-gram, a procedure whereby spinal discs are injected with a dye solution in order to allow x-ray detection of leakage of dye from the disc. The “extravasated” dye often indicates a disc rupture or herniation.

The plaintiff’s discogram was interpreted by Dr. Jarrott as positive for rupture at the L6-S1 disc. The doctor’s diagnosis was later verified during surgery, when he discovered and removed a herniated disc at L5-Sl.

Soon after surgery, plaintiff filed this suit for workmen’s compensation against defendant Scanio, alleging that his disc injury and ensuing disability were caused by the accident of December 24, 1980. Defendant answered, contending that the rupture of plaintiff’s disc was caused at some later time, after Robertson had left the defendant’s employ.

’ Following trial on the merits, the district court entered judgment for the defendants. Plaintiff Robertson now brings this appeal.

[604]*604The plaintiff in a workmen’s compensation action must establish by a preponderance of the evidence the causal connection between his alleged disability and the accident at issue. Martin v. Zachry, 424 So.2d 1002 (La.1982); Lucas v. Insurance Co. of North America, 342 So.2d 591 (La. 1977). Whether such a causal relationship exists is a question of fact, and on appellate review, the trial court’s findings as to that issue will not be disturbed in the absence of manifest error. Crump v. Hartford Accident and Indemnity Co., 367 So.2d 300 (La.1979); Flood v. Hub Auto Parts, 425 So.2d 941 (La.App. 4th Cir.1983).

Where there is proof of an accident and of the following disability without any intervening cause, it is presumed that the, accident caused the disability. Guillory v. U.S.F. & G, 420 So.2d 119 (La.1982); Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (La.1969); Clofer v. Pratt Farnsworth, 407 So.2d 1295 (La.App. 4th Cir.1981).

This presumption of a causal relation between the accident and later disability is rebuttable, however, and the defendant may prevail by showing that the injury was probably caused by some intervening occurrence, rather than by the accident alleged. Guillory, supra; Haughton v. Fireman’s Fund American Ins. Co., 355 So.2d 927 (La.1978).

In his reasons for judgment, the trial judge expressed his belief that the injury to plaintiff’s disc at L5-S1 was not caused by the accident of December 24, 1980, but by some later occurrence. The dispositive issue, therefore, is whether that determination is manifestly erroneous.

The trial court’s opinion finds ample support in the record. Dr. Cashio discharged the plaintiff to return to normal activity on February 19, 1981. During the next fourteen months, the plaintiff performed no less than twenty weeks of moderately heavy manual labor for four different employers. Each job involved the risk of damage to discs in the lower back. While working for Crescent Construction Company, for example, the plaintiff operated a trench machine, a kind of tractor used to burrow ditches in preparation for the laying of underground electric cables, transformers and the like. The plaintiff testified that driving the constantly vibrating, bouncing machine caused great pain to his lower back. Often, the plaintiff would have to dismount the tractor and descend into the ditch to untangle cables, which of course required frequent, painful bending.

Robertson’s job with Highlines Construction Company involved the same duties, but in addition, he was an underground electrician. The plaintiff stated that this job caused such severe pain that he could only work at half-speed. Rather than be fired, he quit.

Plaintiff’s later work with P.A. Applicators, Inc. was almost as arduous. There it was his function to sandblast the inside walls of pipe. Sometimes it was necessary to lift the pipes, and because they were often heavy, Robertson usually asked coworkers for assistance. But on those occasions when no one was available to help him, the plaintiff was forced to lift the pipes by himself. As Robertson admitted in testimony, this invariably caused pain to his lower back and he was, for that reason, forced to leave his job.

Robertson’s last employment was at the Riviera Restaurant, where he helped his landlord to install a new tarpaper roof. Such roofs are ordinarily covered with gravel after hot tar is applied.

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Related

Lucas v. Ins. Co. of North America
342 So. 2d 591 (Supreme Court of Louisiana, 1977)
Flood v. Hub Auto Parts, Inc.
425 So. 2d 941 (Louisiana Court of Appeal, 1983)
Bertrand v. Coal Operators Casualty Company
221 So. 2d 816 (Supreme Court of Louisiana, 1969)
Crump v. Hartford Acc. and Indem. Co.
367 So. 2d 300 (Supreme Court of Louisiana, 1979)
Martin v. HB Zachry Co.
424 So. 2d 1002 (Supreme Court of Louisiana, 1982)
Guillory v. US Fidelity & Guar. Ins. Co.
420 So. 2d 119 (Supreme Court of Louisiana, 1982)
Haughton v. Fireman's Fund Am. Ins. Companies
355 So. 2d 927 (Supreme Court of Louisiana, 1978)
Clofer v. Pratt Farnsworth, Inc.
407 So. 2d 1295 (Louisiana Court of Appeal, 1981)
Martin v. H. B. Zachry Co.
411 So. 2d 1123 (Louisiana Court of Appeal, 1982)

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435 So. 2d 602, 1983 La. App. LEXIS 8851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-scanio-produce-institutional-foods-inc-lactapp-1983.