Opinion
No. 19099.
October 16, 1950.
APPEAL FROM CIVIL DISTRICT COURT OF NEW ORLEANS, PAUL E. CHASEZ, J.
Rosen, Kammer, Wolff, Hopkins Burke, New Orleans, for appellants.
M. E. Culligan, New Orleans, for appellee.
Plaintiff, a laborer employed by defendant, Texas Company, allegedly at a wage rate exceeding $40 per week, instituted this suit against defendant and its insurer, the Maryland Casualty Company, for total and permanent disability under the Workmen's Compensation Act of Louisiana, Act No. 20 of 1914, as amended, claiming that, because of certain injuries received by him on or about February 27, 1946, he is entitled to 400 weeks compensation at the rate of $20 per week, plus medical expenses, subject to deduction for all compensation payments and medical expenses that were previously made.
Defendants answered admitting both the employment and the occurrence of the accident; that plaintiff was disabled for a period of 13 weeks, during which time he was paid $260 compensation, plus medical expenses amounting to $289.96; that the average weekly wage rate of plaintiff was $32 per week rather than the sum of $40 per week; and, in the final analysis, defendants deny that plaintiff is totally and permanently disabled and maintain that there are no further compensation or medical payments due to him.
The court, a qua, found plaintiff totally and permanently disabled and rendered judgment in favor of plaintiff at the rate of $20 per week, not to exceed 387 weeks, together with interest and costs, and from that judgment defendants have prosecuted this appeal.
The record reveals that the accident occurred on or about February 27, 1946, while plaintiff was digging a hole for the purpose of laying therein a fuel storage tank at a service station in the City of New Orleans. The side or wall of the excavation unexpectedly collapsed burying the plaintiff with mud. Plaintiff contends that he was extricated therefrom by virtue of a rope being placed under his armpits and attached to a truck which removed him from the hole.
Defendants admit the extrication of plaintiff from the hole through the medium of a rope being placed under his armpits, but deny that any truck was used in raising plaintiff.
However, the record reveals that it is undisputed that plaintiff was an employee of the Texas Company working within the scope and course of his employment on February 27, 1946, the day on which the accident occurred and that he was digging a hole intended to contain a fuel storage tank at a New Orleans Service Station. When the hole had been excavated to a depth of nine feet, one of the perpendicular walls, measuring approximately five feet long, two and one half feet wide and eight or nine inches thick unexpectedly collapsed burying plaintiff's body with the exception of his shoulders and head; that thereafter the employees of the defendant, Texas Company, endeavored to extricate plaintiff by placing a rope under his armpits and then applying force through the medium of several men to the other end of the rope for the purpose of pulling his body from the mud in which he was buried. We conclude from the evidence contained in the record that no truck or tractor was used for this purpose.
It is obvious to us that the injury of which plaintiff complains could have been received by him by virtue of the foregoing accident. In any event we are confronted with the solution of the result rather than the cause in view of the fact that during the trial on the merits the issue was confined to whether or not plaintiff sustained a rupture of the fifth intervertebral disc as a result of the accident. It will, therefore, be readily appreciated that the court, a qua, as well as this court, is confronted with only an enigmatical question of fact, much disputed by opposing counsel and their respective medical experts to the substantial extent of 210 pages of medical testimony involving, for the most part, the highly specialized field of neurosurgery. The case was tried on five different days extending over a period of six months from October 27, 1947 to April 14, 1948. Six medical experts testified: Drs. John A. Colclough, a neurosurgeon and E. H. Maurer, an orthopedist, on behalf of plaintiff and Drs. Gilbert C. Anderson, Howard H. Karr, neurosurgeons, Samuel B. Nadler, Internal Medicine, and Ralph J. Christman, general surgery, all on behalf of defendants.
The medical experts' testimony was both voluminous and elaborate and each medical expert related in minute detail as to how he arrived at the conclusion that plaintiff did or did not suffer a rupture of the fifth intervertebral disc as a result of the accident. However, the conclusions of the medical experts, in substance, were as follows:
Dr. Colclough testified that:
"Q. Now, Doctor, as a result of that examination, what was your diagnosis and conclusion? A. My diagnosis was that the man was suffering from a ruptured fifth intervertebral disc, lumbar intervertebral disc, causing sciatica on the right side by pressure upon the first sacral nerve root.
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"Q. Now, Doctor, could a person complaining of the type of injury which your findings back up, could that person do heavy manual labor, such as the digging of holes, the use of shovels and lifting mud and that type of work as a steady, every day means of employment? A. He could not.
"Q. It is your conclusion, then, that it would be impossible for this patient, that is, Walter Stanton, this plaintiff here, to do that type of work? Is that your opinion? A. That is correct."
Dr. Maurer testified that:
"Q. Now, would you relate to the Court your diagnosis, your findings, and the basis on which you determined your findings? A. His complaints at that time were: Lower back hurts intermittently. Greatly influenced by rest. Much worse pain increased activity. Coughing and sneezing aggravates pain. The pain was localized over the fourth lamina. That is the interpace between the fourth and fifth lumbar vertebrae. Pressure over the spinous process of the fourth lamina and the fourth vertebrae produces acute pain and radiations of pain. The pain radiates to the hip and down the leg. The pain was complained of when the sciatica nerve was palpated. Hyperalgesia over the skin area of the lateral sciatic of the right side. Achilles and plantar reflexes on the right side were greatly diminished. I made a diagnosis of ruptured intervertebral disc."
Dr. Anderson, who examined plaintiff once, on March 4, 1947, more than a year after plaintiff's injury, testified that:
"Q. What were your final conclusions on this patient? A. Well, my final conclusion was, as I say, that the patient was definitely exaggerating his symptoms and that he should be investigated further for the possibility of a ruptured disc. I didn't consider that a ruptured disc had been excluded at that time, but it was impossible for me to conduct an examination that would satisfy me that it was or was not there with the lack of cooperation that I got from the patient. Now, apparently that suggestion was followed out, because the investigation was carried further, but not by me.
"Q. Was that the last time you saw him, Doctor? A. That was the only time I saw him.
"The Court:
"Q. That was the first and last time you saw him? A. Yes, sir."
Dr. Karr, who examined plaintiff on May 8, 1947, or about 14 months after he was injured, testified:
"Q. In your opinion, did Walter Stanton, at that time, suffer from a ruptured intervertebral disc? A. In my judgment, unequivocally no.
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"Q. His work was that of a laborer, digging excavations in the ground for the sinkage of tanks. Would you say that you found his condition to be such that he could normally pursue that occupation? A. Yes.
"Cross-Examination
"Mr. Culligan:
"Q. When you say unequivocally that a ruptured disc was not present, do I understand correctly that there is absolutely no doubt in your mind whatsoever that there is not a ruptured disc? A. That is correct. In this particular case, yes.
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"Q. Well, I mean that there can be no doubt in your mind as to the conditions, let us say, prior to an actual opening of the body and the actually seeing inside? A. Well, if such a doubt existed and if such a doubt had to surround every diagnosis that I ever made, I would say that it would violate all conceptions that I have ever had of medicine or the understanding of physical diagnosis and the use of clinical judgment or the application of physiological principles which are involved in making a diagnosis.
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"Q. When this patient went to you, Doctor, it was with full knowledge on your part that it was simply for the purpose of an examination and not with the idea of treatment; isn't that correct? A. Yes."
Dr. Nadler, who examined plaintiff on November 3, 1946, or about eight months after he was injured, testified that:
"Q. Based on your examination, Doctor, would you say that your findings were consistent or inconsistent with a ruptured intervertebral disc? A. I might say that, at the time that I examined him, there was certainly no conclusive evidence that this patient had any organic disease. I don't think that he evinced any of the symptoms that are characteristic of ruptured intervertebral disc.
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