Walton v. Town of Jena

284 So. 2d 632, 1973 La. App. LEXIS 6713
CourtLouisiana Court of Appeal
DecidedNovember 5, 1973
DocketNo. 4307
StatusPublished

This text of 284 So. 2d 632 (Walton v. Town of Jena) 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
Walton v. Town of Jena, 284 So. 2d 632, 1973 La. App. LEXIS 6713 (La. Ct. App. 1973).

Opinion

FRUGÉ, Judge.

Plaintiff, Chester Roy Walton, filed this action seeking benefits under the applicable provisions of the Louisiana Workmen’s Compensation Law. Plaintiff was employed by the Town of Jena, in the capacity of garbage collector, for several months during the year of 1971. The crux of the plaintiff’s action is an asserted disability alleged to have arisen out of an accidental slipping or falling down upon a grassy knoll while in the act of picking up a garbage can. The lower court held that the plaintiff failed to prove by a preponderance of the evidence that he suffered any disability which could be causally connected to the alleged accident complained of. We affirm.

It is well settled that the workmen’s compensation claimant’s burden of proof includes the element of causation. In satisfying this burden, the plaintiff must show a causal relationship between the accident and the resulting disability. The facts, as revealed from the record and as discussed in the following paragraphs, readily demonstrate that the plaintiff has failed to carry this required burden of proof.

The plaintiff’s alleged disability was claimed to have arisen while in the course and scope of his employment. The record reveals that if an accident did transpire, it was not witnessed by others. The issue of the actual occurrence of the accident, within the course and scope of the employment of the plaintiff, is hotly contested by the parties litigant. However, this court abstains from the issue of the happening vel non of the accident itself, and bases its determination upon the lack of a causal connection between the plaintiff’s disability and any accident which may have occurred within the course and scope of his employment.

In his petition, plaintiff asserted that his disability resulted from an accident which occurred on or about the 1st of September, 1971. At the trial of this case, in the lower court, plaintiff was unable to designate the actual date of the accident with any degree of certainty. He could only state that the accident occurred somewhere around the middle of September, but plaintiff did not know the exact date.

In regard to the plaintiff’s disability vel non, Dr. D. M. Kingsley’s report, predicated upon examinations of plaintiff conducted June 28 and July 17, 1972, contains the best evidence in favor of the plaintiff’s position. It also contains conditional language which, when considered in light of the other factual circumstances, nullifies this same evidence as a source or foundation for an award to the plaintiff. Dr. Kingsley was of the opinion that plaintiff was disabled, but the doctor was unable to relate this disability to any previous accident unless it could be confirmed that the plaintiff had been doing well before September, 1971, the month the alleged accident happened.

The plaintiff’s position is weakened by the trial court’s admission of records from the Veterans Administration Hospital, which revealed that plaintiff had been ex[634]*634amined on August 20, 1971, by doctors of this hospital who made the following finding: Dr. John C. Crenshaw performed an orthopedic evaluation of the plaintiff and noted in his report that plaintiff stated his back was becoming worse and hurting more, and that he had had continuous pain in the lower mid-back which occasionally extended down one or the other leg. Plaintiff also had stated that the pain was made worse by physical exertion or manual labor, and that plaintiff might have to quit this type of work or perhaps lose his job because of being absent from work due to his back trouble. The Veterans Administration Hospital records also revealed that the plaintiff had been injured while in the Armed Services during the year of 1967 and was hospitalized and underwent two disc operations to correct back difficulties during that same year.

The plaintiff’s medical history subsequent to the month of September, 1971, is given complete and explicit treatment in the following excerpt borrowed from the written reasons supplied by the learned trial court.

“On October 20, 1971 the plaintiff was admitted to the V.A. Hospital in Alexandria, Louisiana. (See Exhibit D-3) At that time the plaintiff’s history was reviewed and no mention was made of an accident in September of 1971. The plaintiff was discharged on November 12, 1971 in an improved condition with a notation the plaintiff was then fully able to return to work. The summary reflects the plaintiff suffered from nonspecific degenerative changes and that his rehabilitation potential was poor. No medication was prescribed on discharge but a back brace was suggested. The possible need for surgery was noted.
After November 12, 1971, the plaintiff was seen by the Veteran’s Administration physicians on December 8, 1971, and on February 2, April 12, June 14, July 12, October 4 of 1972 and on January 17 and February 28 in 1973.
It is apparent that throughout 1972 the physicians were considering surgery and myelogram examination. However, on January 17, 1973 the V.A. physician stated an opinion that the plaintiff’s complaints were out of proportion to findings in his physical examination and he concluded that hospitalization was not warranted at that time. He noted certain findings were negative when the motion was not done obviously. On-February 28, 1973 the plaintiff again returned to Alexandria and again a discrepancy was noted between his actions done under full observation and indirect observation. It was further noted that in spite of his claim he had not been able to work in one and a half years that his hands showed multiple callouses and signs of heavy manual labor and he was described as an extremely muscular and well developed man. The report states that findings on physical examination were negative and the physician concluded by stating that complaints were subjective only without objective verification.”

We adhere to the law as stated by this court in the case of Porter v. Augenstein Construction Company, 280 So.2d 861, 864 (La.App. 3rd Cir. 1973), which we deem appropriate in the instant case.

“The law is settled that an employer accepts an employee as he finds him, and that ordinarily the Workmen’s Compensation Act affords coverage if a work-connected accident precipitates or accel-efates a pre-existing disposition or disease into becoming a present disability. DeVille v. Travelers Ins. Co., 176 So.2d 824 (La.App. 3rd Cir. 1965); Johnson v. Employers Mutual Liability Ins. Co. of Wis., 250 So.2d 38 (La.App. 3rd Cir. 1971); Lum v. Employers Mutual Liability Co. of Wis., 216 So.2d 889 (La.App. 2nd Cir. 1968).
A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in [635]*635good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterward, provided that the medical evidence shows that there is a reasonable possibility of causal connection between the accident and the disability. Bourque v. Monte Christo Drilling Corporation, 221 So.2d 604 (La.App. 3rd Cir. 1969); Cripps v. Urania Lumber Co., 213 So.2d 353 (La.App. 3rd Cir. 1968); Carney v. Liberty Mutual Ins. Co., 277 So.2d 175 (La.App. 3rd Cir. 1973).”

From the foregoing, it can be said that the plaintiff could have obtained relief had he shown by a preponderance of the evidence that a work-connected accident had precipitated or accelerated a pre-existing disposition or disease into a present disability.

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Bluebook (online)
284 So. 2d 632, 1973 La. App. LEXIS 6713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walton-v-town-of-jena-lactapp-1973.