Straughter v. Cesco, Inc.

262 So. 2d 126, 1972 La. App. LEXIS 6466
CourtLouisiana Court of Appeal
DecidedApril 17, 1972
DocketNo. 8806
StatusPublished
Cited by5 cases

This text of 262 So. 2d 126 (Straughter v. Cesco, 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
Straughter v. Cesco, Inc., 262 So. 2d 126, 1972 La. App. LEXIS 6466 (La. Ct. App. 1972).

Opinion

LANDRY, Judge.

Cesco, Inc. (Cesco) and its workmen’s compensation insurer, Highlands Insurance Company (Highlands), appeal the judgment of the trial court awarding Cesco’s employee, Ven Straughter (Appellee), workmen’s compensation benefits for total permanent disability in the sum of $45.00 weekly, not exceeding 500 weeks. The occurrence of a disabling accident within the scope and during the course of Appellee’s employment is conceded. The sole question is that of continuing disability. Ap-pellee has answered the appeal praying for penalties and attorney’s fees denied by the trial court and for interest on past due compensation, together with interest on all sums awarded for medical expense. We reverse the finding of total permanent disability and remand this matter to the trial court for further proceedings.

At approximately 12:30 A. M., February 5, 1969, plaintiff, a 59 year old laborer, together with fellow employees, Lindell Martin and Enis Pritchard, was engaged in the task of cleaning an elevated tank, consisting in part of a series of metal tubes, on Cesco’s premises. The level at which Ap-pellee was working when injured is estimated at between three and five stories above ground. The cleaning process was accomplished by using a metal rod or reamer together with water furnished by high pressure hoses and certain mechanical equipment, the exact nature of which is not explained in the record. While so en[127]*127gaged, plaintiff and his co-workers were exposed to an admittedly toxic gas, either phosgene or chlorine, emitted from one of the tubes being cleaned. The record preponderates in favor of the conclusion that the gas was phosgene. Plaintiff was overcome to the extent he fell against some pipes and was assisted to ground level by his fellow employees. The incident was reported to a foreman who told plaintiff that plaintiff appeared to be all right, and for the crew to get some gas masks and resume the operation because the work had to be completed as soon as possible. All three workers experienced immediate eye irritation and began coughing. They resumed work using gas masks and at the end of their shift, approximately 7:30 A. M., all reported to Cesco’s infirmary where they were given medication for eye irritation.

At approximately 9:30 A. M., February 5, 1969, plaintiff consulted Dr. Roy Regan who hospitalized plaintiff on two occasions, and under whose care plaintiff remained until February 20, 1969. From February 21, 1969 to March 17, 1969, and from April 16, 1969 to April 30, 1969, plaintiff was under the care of Dr. Richard Moore. On two occasions, May 23, 1969 and an undisclosed later date, plaintiff was seen by Dr. David W. Walls, Internist. Dr. Thomas Campanella, Orthopedist, examined plaintiff on March 3, 4 and S, 1970.

Plaintiff was paid compensation from February 6, 1969 through August 8, 1969, on which latter date payments ceased upon receipt by defendants of a report from Dr. Walls to the effect plaintiff had recovered and was able to resume employment.

Appellants contend the trial court erred in awarding plaintiff benefits beyond February 20, 1969, and alternatively urge that the lower court erred in decreeing plaintiff disabled beyond November 6, 1970.

In substance, plaintiff testified he was assisted to ground level after having been overcome by gas and having fallen against some pipes. After reporting the incident to his foreman,.Mr. Roy, he was instructed to return to work, which he did. During the rest of the shift, plaintiff used a gas mask, but on several occasions was forced to return to the ground to replace the mask filters because gas was penetrating the mask. At the end of the shift, he sought medical aid at his employer’s infirmary and was given some eye drops. Later that morning, he contacted Dr. Regan because of eye irritation, continued coughing, vomiting and difficulty in breathing. A summation of plaintiff’s complaints is that since the accident, he has experienced a numbness of the lips, arms and left leg, hands and fingers, pain in the left leg and back, injury to his tail bone (coccyx), nervousness and irritability. He also explained that he has to take pills constantly for his nervous condition. In addition, plaintiff stated he has been unable to work since the accident and has not tried because he knows he cannot perform any work.

Lindell Martin corroborated, in most respects, plaintiff’s version of the accident. Following the incident, he reported to the infirmary at the end of his shift and was given medication for eye irritation. Martin stated he was hospitalized three days under oxygen, but recovered from the effects of his exposure. He also stated that since the accident, he noticed that plaintiff sits sideways and walks with a cane whereas plaintiff was perfectly well before the mishap.

Enis Pritchard’s testimony is that while he too was exposed to the gas, he did not require hospitalization and has suffered no ill effects therefrom.

Plaintiff’s wife, Lizzie Straughter, stated in essence that her husband was a well man before his accident. Since the accident, however, plaintiff has been irritable and short-tempered. She also stated that plaintiff complains of back pains, that he cannot sit down very well, and that he requires daily medication for his extremely nervous condition. Mrs. Straughter fur[128]*128ther testified that plaintiff is unable to do anything but lie on a foam padding which he places on a bench under a tree in the yard.

Dr. Roy Regan, General Surgeon, saw plaintiff on the morning of February 5, 1969. Plaintiff related a history of gas poisoning several hours previous. Plaintiff was suffering from mild conjunctivitis (irritation of the eyelids and eyeballs). Dr. Regan also noted plaintiff was coughing and had a chest rattle indicative of bronchitis. Dr. Regan prescribed some medication and allowed plaintiff to return home. Plaintiff returned that afternoon, and examination disclosed plaintiff was short of breath and had congestion in the lungs. Finding plaintiff worse, Dr. Regan hospitalized plaintiff and administered oxygen, antibiotics, eye drops, expectorant cough syrup and pain relievers. X-rays revealed marking of the lungs, the presence of some old scarring, fibrosis and the probability of superimposed interstitial pneumonitis, the latter being more prevalent in the right lung. Dr. Regan also found recent acute inflammation of the lungs, but no enlargement of the patient’s heart. Plaintiff’s condition was such that by February 7, 1969, plaintiff was free of pneumonitis on the left side. During his hospitalization, plaintiff complained of pain in the sacrococcygeal area. X-rays and visual examination of the area disclosed no sign of fracture or evidence of injury such as a bruise or swelling. Some evidence of a slight roughening of the distal extremity of the sacrum, just above the sacrococcygeal joint, was noted, however. By February 12, 1969, Dr. Regan considered plaintiff 99% recovered and discharged plaintiff on that date.

Dr. Regan saw plaintiff again in the hospital emergency room early in the night of February 13, 1969. At this time plaintiff was upset, anxious and in mild acute distress. Plaintiff complained of chest pains, pains in the epigastric area, pain in the upper abdomen and numbness of the lips and right leg. Dr. Regan concluded plaintiff was suffering primarily from anxiety with some exaggeration of symptoms. Although he felt there was nothing really wrong with plaintiff, Dr. Regan ordered plaintiff hospitalized. To relieve plaintiff’s symptoms, Dr. Regan prescribed pain relievers, tranquilizers and oxygen.

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262 So. 2d 126, 1972 La. App. LEXIS 6466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/straughter-v-cesco-inc-lactapp-1972.