Wright v. Insurance Co. of North America

491 So. 2d 161, 1986 La. App. LEXIS 7267
CourtLouisiana Court of Appeal
DecidedJune 25, 1986
Docket85-868
StatusPublished
Cited by9 cases

This text of 491 So. 2d 161 (Wright v. Insurance Co. of North America) 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
Wright v. Insurance Co. of North America, 491 So. 2d 161, 1986 La. App. LEXIS 7267 (La. Ct. App. 1986).

Opinion

491 So.2d 161 (1986)

Patrick WRIGHT, Plaintiff-Appellant,
v.
INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants-Appellees.

No. 85-868.

Court of Appeal of Louisiana, Third Circuit.

June 25, 1986.

David H. McCroskey, New Iberia, for plaintiff-appellant.

Mouton, Roy, etc., Alan K. Breaud and Patrick M. Wartelle, Lafayette, Denise A. Nagel, Baton Rouge, for defendants-appellees.

Before LABORDE and KING, JJ., and PAVY, J., Pro Tem.[*]

*162 KING, Judge.

The main issue presented by this appeal is whether or not the trial court erred in failing to find the plaintiff temporarily totally disabled as a result of a work-related accident.

Patrick Wright (hereinafter referred to as plaintiff) filed suit against his former employer, The Carborundum Company, and its worker's compensation insurer, Insurance Company of North America (both sometimes hereinafter referred to as defendants), seeking recovery of worker's compensation benefits, medical expenses, legal interest, and penalties and attorney's fees, for an injury that he sustained while working for The Carborundum Company. After a trial on the merits, the trial court denied plaintiff's claim and dismissed plaintiff's suit with prejudice. Plaintiff appeals. We affirm.

FACTS

On April 24, 1984, plaintiff was hired by The Carborundum Company to work as an operator. Plaintiff was assigned to the shipping and receiving department, and his job function consisted of loading bulk tanks and performing related tasks. Plaintiff, along with his co-workers, worked pursuant to a shift schedule where he would work from twelve noon to twelve midnight for three consecutive days, then have three days off, then work from twelve midnight to twelve noon for three consecutive days, then have three days off, and would then repeat this same work schedule thereafter.

On June 23, 1984, after reporting to work at twelve midnight, plaintiff was preparing a tank-truck for shipment and was standing on top of the tank when he lost his footing and fell approximately twelve to fifteen feet to the ground. Plaintiff landed on his feet and then fell backwards. Shortly thereafter plaintiff began experiencing pain in his right leg and lower back, and was taken to Dauterive Hospital, where he was seen by the hospital emergency room physician. After taking X-rays and performing tests on plaintiff, the hospital emergency room physician recommended bed rest and prescribed a muscle relaxant and also a pain reliever for plaintiff to take. The physician further instructed plaintiff to visit his local medical doctor in two days if there was no improvement in his condition, and to take two days off from work.

After being released from the hospital, plaintiff was taken back to the plant where he filled out an accident report. Plaintiff then called his wife, who took him home at about 3:00 or 4:00 A.M. Apparently at the request of plaintiff's supervisor, plaintiff reported to work on the next day of his three-day shift, but, at the insistence of his supervisor, did not do any work. Plaintiff also reported to work on June 25, 1984, the third day of his three-day shift. Plaintiff was told by the plant personnel manager that if he had any problems to visit Dr. Roy Landry, who performed all of the defendant, Carborundum's, pre-employment physicals, and who also treated some of Carborundum's injured employees. Dr. Landry specialized in family practice and occupational medicine.

On June 27, 1984, plaintiff visited the office of Dr. Landry, complaining of occasional pain in his upper lumbar and mid-thoracic area. Plaintiff was not seen by Dr. Landry at this time, but was instead seen by Mr. Harold Broussard, a certified physician's assistant who was working under Dr. Landry's supervision. Mr. Broussard performed various tests on plaintiff to determine the cause of plaintiff's pain, but all tests were negative. Mr. Broussard therefore told plaintiff that he could return to work, and to continue taking the medication prescribed by the hospital physician, and also to return to the clinic if necessary.

Plaintiff did not return to Dr. Landry's office until July 14, 1984. At this time, plaintiff was again seen by Mr. Broussard. Plaintiff explained to Mr. Broussard that his back had improved since the June 27, 1984 office visit, but that it began hurting again while he was shoveling some bauxite at work that day. Mr. Broussard performed another physical examination of plaintiff, similar to the one performed during *163 the June 27, 1984 visit, and noted that plaintiff had a slight decrease in lumbar flexion, based upon plaintiff's subjective response of pain. Plaintiff continued to work after the July 14, 1984 office visit until October 23, 1984, when he, along with almost thirty other workers, was laid off as a result of a reduction in work force. Plaintiff received unemployment compensation benefits from the time that he was laid off until May 25, 1985.

Plaintiff did not return to Dr. Landry's office until January 12, 1985, when he returned complaining of numbness in his right leg and pain in his lower back. This office visit was apparently only two days after plaintiff called Mr. Mason, Carborundum's plant personnel manager, who told plaintiff that he was not calling plaintiff to go back to work at that time. On this visit to Dr. Landry's office, plaintiff was again seen by Mr. Broussard. Mr. Broussard performed another physical examination of plaintiff, the result again being normal. Mr. Broussard instructed plaintiff to return to the office on January 18, 1985 so that Dr. Landry could examine him. Plaintiff returned as scheduled and Dr. Landry conducted a physical examination, the result of which was entirely normal. Dr. Landry nevertheless diagnosed plaintiff as having sciatica, an inflammation or irritation of the sciatic nerve. Dr. Landry's diagnosis was based purely on plaintiff's history. Dr. Landry prescribed Endocin, an anti-inflammatory drug, and told plaintiff to return if his symptoms continued.

Plaintiff returned to Dr. Landry's office on January 25, 1985. At this time plaintiff told Dr. Landry that the medicine had helped but that he wanted to see a specialist. Dr. Landry therefore referred plaintiff to Dr. Fletcher Sutton, an orthopedic surgeon who practices in New Iberia. Plaintiff did not keep his appointment with Dr. Sutton, but instead, went to see Dr. R.C. Llewellyn, a neurological surgeon in New Orleans, on January 29, 1985. Dr. Llewellyn performed a physical examination of plaintiff and rendered a diagnosis of a lumbar spine sprain. This diagnosis was based on plaintiff's subjective response of pain. Dr. Llewellyn prescribed physical therapy treatments for plaintiff, and also medication.

Plaintiff did not return to see Dr. Llewellyn until May 24, 1985. Plaintiff had not undergone the physical therapy, nor had he obtained or taken the medication prescribed by Dr. Llewellyn on the previous visit. On this visit Dr. Llewellyn again performed another physical examination of plaintiff which, unlike the previous physical examination on January 29, 1985, revealed objective findings of muscle spasm affecting the right major muscle group in the low back area and in the right flank muscles. Based on this May 24, 1985 examination, Dr. Llewellyn diagnosed plaintiff as suffering from a lumbar sprain, and still recommended that plaintiff undergo physical therapy.

Upon defendant's failure to pay some of the medical expenses incurred by plaintiff, plaintiff submitted a claim to the Louisiana Office of Worker's Compensation for an informal resolution of his claim against defendants.

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Bluebook (online)
491 So. 2d 161, 1986 La. App. LEXIS 7267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-insurance-co-of-north-america-lactapp-1986.