
    James L. MARTIN v. PALA, INC. and Aetna Casualty & Surety Company.
    No. 82 CA 0829.
    Court of Appeal of Louisiana, First Circuit.
    April 6, 1983.
    On Rehearing Sept. 26, 1983.
    Patrick W. Pendley of Freeman & Pend-ley, Ltd., Plaquemine, for plaintiff-appellant, James L. Martin.
    John W. Perry, Jr. of Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendant-appellee, Pala, Inc., and Aet-na Casualty & Surety Co.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action brought by James L. Martin for workmen’s compensation against Pala, Inc., the employer, and Aetna Casualty & Surety Company, its workmen’s compensation insurer. Mr. Martin’s medical expenses while in the Rhodes J. Spedale Hospital in the sum of $4,882.30, and workmen’s compensation weekly benefits in the sum of $3,108.00 through August 25, 1980, were paid voluntarily by Aetna. The accident causing the alleged disability occurred about March 7, 1980. Mr. Martin brought the present action for additional workmen’s compensation benefits on the basis of total and permanent disability, and additional medical expenses. The trial court rendered judgment for defendants, dismissing plaintiff’s suit. It appears from the briefs of counsel on appeal that Mr. Martin has since died. However, the record does not so indicate. We affirm the decision of the trial court.

Mr. Martin was employed as an electric welder by Pala, Inc. On the date of the accident, he stepped onto a plank of plywood in a ditch to weld a pipe. The plywood shifted, and Mr. Martin, who was 70 years of age, fell, pulling his flank. Mr. Martin experienced pain for several days after he fell but attempted to work. Finally, he consulted Dr. James A. Freeman, a physician and surgeon, believing he had aggravated a preexisting scar resulting from the removal of kidney stones. The scar was found not to have reopened. He was advised to use a heat lamp. The pain became so severe that Mr. Martin was placed in the hospital. On undergoing tests, Mr. Martin was found to have multiple myeloma, which, basically speaking, is a cancerous condition of the blood. It is believed by the physicians who gave medical testimony that this condition hindered the healing process of the flank. The pain persisted and grew worse. After several months, it was discovered that Martin had a massive malignant epidural tumor affecting the T-ll nerve root on the left. Surgery was performed to excise the tumor. The medical testimony agrees that (1) the myeloma and the malignant tumor were unrelated, and (2) neither condition was caused by the fall Martin suffered while at work.

On November 20, 1980, Aetna received a written report from Dr. Derwood Facundus stating that he had examined Martin on October 28, 1980, and that the pain attendant upon the fall had disappeared. The other medical testimony confirms that his favorable result ensued upon removal of the epidural tumor.

Mr. Martin’s condition remained stable for several months and he was without pain. Then back pain developed. The medical testimony attributed the back pain to the combined effect of the myeloma and recurrence of the tumor. At the time of the trial, December 22, 1981, Martin was on the verge of death, if the verbal statement presented by his counsel when the case was submitted is correct. The case was submitted on depositions, affidavits and other documentary evidence. As we have stated, the trial court rendered judgment dismissing plaintiff’s suit.

In Haughton v. Fireman’s Fund Am. Ins. Companies, 355 So.2d 927 (La.1978), plaintiff fell while at work, and broke his thigh bone. It was discovered that the bone was made brittle by multiple myeloma, which was Mr. Martin’s condition in the present case. The plaintiff in Haughton was unable to return to work, although his testimony differed as to whether the fall or the myeloma was the cause of the disability. The court stated:

When there is an accident and a resulting disability without any intervening cause, it is presumed that the accident caused the disability. This simple guide, plainly stated in Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969), we affirmed in Johnson v. The Travelers Insurance Co., 284 So.2d 888 (La.1973) and reaffirmed in Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La.1974). The presumption is not irre-buttable, but its effect is to shift the burden of proof to the defendant. This burden was not enforced by the courts below, and the defendant has failed to prove that Haughton’s accident did not cause his disability.” (355 So.2d 927, 929)

The judgment of the Court of Appeal, which had affirmed the trial court, was reversed, and compensation benefits were awarded by the Supreme Court.

The Louisiana Supreme Court reversed the Court of Appeal and awarded benefits, on the basis of similar reasoning, in Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829 (La.1982). In that ease plaintiff seriously bruised his upper left arm while driving a truck on the job. The plaintiff’s condition in Hammond grew steadily worse, and at last a biopsy was performed, which resulted in the physician and pathologist finding a malignant growth in the left upper arm. An operation was subsequently performed to remove the growth, and plaintiff remained disabled because he had lost almost all strength in the arm. The Supreme Court held that workmen’s compensation benefits were due on the basis of total and permanent disability, although medical testimony indicated the tumor was preexisting, but subclinical, and that the accident did not affect the eventual progression of the tumor. The Court stated that as the accident made manifest a condition previously unnoticed, and that as the worker was rendered permanently disabled, he was entitled to workmen’s compensation benefits for total and permanent disability, unless there was an intervening cause. The Court found no intervening cause and, as stated, awarded benefits.

In the present case, the pain in Martin’s flank disappeared after the removal of the epidural tumor. Pain reappeared in another location only after the passage of several months in which he suffered no pain in any part of his body. This worsening of his condition was attributed solely to the mye-loma and the return of the malignancy. We find that the operation, which ended the pain resulting from the work-related accident, broke the chain of causation beginning with that accident, and two different forces, the myeloma and the malignancy, in no way resulting from the accident, caused the subsequent worsening of Martin’s condition. In Haughton and Hammond the chain of causation was straight and unbroken. In the present case the chain of causation was broken by the operation to remove the epidural tumor and the almost immediate disappearance of pain. Thus, the accident did not produce any disability beyond the time of the operation. Any disability after that time was non-work related. It was at the time of the operation, August 25, 1980, that compensation benefits were terminated. The trial court obviously found that the “cut-off” date of August 25, 1980, was proper, and denied further benefits for the reason that disability after that time was not caused by the accident.

As the case was submitted on depositions, if we were to follow the holdings of other circuits, we would be compelled to refrain from applying the manifest error, clearly wrong test (Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)), and to decide the case as trier of fact, see Abu Ali v. Guillory, 271 So.2d 882 (La.App. 4th Cir.1973), and the cases cited therein; also Farris v. Ducote, 293 So.2d 589 (La.App. 3d Cir.1974), writ refused 295 So.2d 814 (La.1974); and Langford v. Calcasieu Parish Police Jury, 396 So.2d 956 (La.App. 3d Cir.1981). However, in our view the decision of the trial court was not merely free from manifest error, but was founded upon the irrefutable factual conclusion that disability beyond August 25, 1980, did not result from the accident and, thus, was clearly correct. The trial court did not assign written reasons for judgment. However, we hold that Haugh-ton and Hammond (the latter having been decided after the date of the trial court’s judgment) are inopposite because in the present case the chain of causation was broken, unlike Haughton and Hammond. We, therefore, find that the trial court was correct in its apparent decision not to apply Haughton to the factual situation presented to it in the present case. Because disability beyond August 25,1980, was the product of causes independent of the work-related accident, further benefits were properly denied.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.

SHORTESS, J., dissents and assigns reasons.

SHORTESS, Judge,

dissenting.

I respectfully dissent.

The real issue involved herein is whether plaintiff’s problems after his laminectomy were causally related to the accident. Our Supreme Court recently commented in Hammond v. Fidelity & Cas. Co. of New York, 419 So.2d 829 (La.1982):

“A plaintiff-employee’s disability will be presumed to have resulted from an employment accident if before the accident the plaintiff-employee was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition.” (citations omitted) 419 So.2d at 831 [Emphasis ours]

Prior to this accident, plaintiff was in good health. However, after the accident, plaintiff began to manifest problems in the flank area, where he fell, and also pain in his back and legs. After closer analysis, it was discovered that he had multiple myeloma and an epidural tumor which was surgically removed by a laminectomy performed on August 22, 1980. There is no question that this particular accident “contributed to the plaintiff’s disability by making manifest [these] symptoms previously unnoticed.” Hammond, supra at 838. Plaintiff showed marked improvement immediately following the surgery, and Aetna felt that the problems related to the flank injury were resolved, and thus discontinued benefits after August 25, 1980.

However, plaintiff’s problems were not resolved. The most pertinent information in this record regarding his condition after surgery was the deposition of Dr. Frederic T. Billings, the cancer specialist who continued treating plaintiff for his problems. Dr. Billings stated that plaintiff’s back pain lessened after the operation in August. He stated that after his radiation treatment in September, he was “really symptom free,” and a report in October stated that plaintiff had “rapid and complete relief of his pain following surgery,” which Billings described as incredible. However, his chronology of plaintiff’s condition after August was as follows:

“And I wrote in my office notes on September 9 — September the 8th, says, ‘Appetite is improving. Pain is better but still present. Now he has pain of the right hip.’ On September 26th, ‘Doing better. Back pain better.’ October 15th, ‘Weight increasing, eating well, feeling better. Postnasal drip. Feels good otherwise. Back pain improved.’ October 22nd, ‘Back pain better.’ November 5th, ‘Feels better.’ December 17th, ‘Pain in back radiating to the left flank. Picked up an acetylene bottle.’ January 21st, ‘Some shortness of breath. No fever or cough.’ And I guess that was following his discharge from the hospital.”

On October 22, plaintiff also began chemotherapy for his myeloma. On December 17, plaintiff complained of pain in his back radiating to the left flank, the area injured in the accident. Plaintiff was again hospitalized in January of 1981 for pneumonia, which patients suffering from multiple myeloma are prone to contract. In April of 1981, plaintiff was hospitalized for increasing pain at the upper end of his laminecto-my scar, and from this point his back problems never substantially subsided before the date of his death.

Dr. Billings stated that his “bottom line” was that he did not feel the fall exacerbated the tumor, but that it clouded the diagnosis of plaintiff’s problems. He further admitted that the kidney stones, myeloma, or the tumor could have independently caused the back pain, or a combination of all three, plus the fall; that plaintiff’s back hurt more after the fall; that the fall was more incidental than the diagnosis; that he did not think the fall exacerbated the tumor, but it could have; and that any of plaintiff’s conditions could have been exacerbated by trauma and gone undiagnosed until trauma. Billings stated that he felt the reason for the persistent pain after the surgery was the epidural carcinoma and that the January and April hospital stays were not related to the accident. However, he also commented, “it’s hard to know whether or not he would be where he’d be if only the fall were the problem.”

The Supreme Court stated in Hammond, supra:

“When the doctors speak of cause they are essentially speaking of etiology — the origin of disease; what initially causes a disease. When courts and lawyers speak of cause they are concerned with the question of whether the particular incident in question contributed to the plaintiff’s disability by making manifest symptoms previously unnoticed. ‘Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.’ Haughton v. Fireman’s Fund American Insurance Companies, 355 So.2d 927, 928 (La.1978).
“Furthermore, ‘[i]t is immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standards of accidental injury is a disabling factor . . .. ’ Parks v. Insurance Company of North America, 340 So.2d 276, 281 (La.1976). See Allor v. Belden Corp., supra [393 So.2d 1233] at 1237 [La.1981]; Bertrand v. Coal Operators Casualty Co., supra.” 419 So.2d at 832-833.

Plaintiff was a relatively healthy individual before this accident. Afterwards, symptoms manifested themselves, which did not sufficiently subside after August 25, 1980, so as to allow a segregation of the causal connection between the accident and these subsequent problems. Plaintiff felt better and then worse, but never completely relieved of symptoms. The facts surrounding plaintiff’s medical history support a finding that the accident was a legal cause of plaintiff’s problems. There was certainly a reasonable possibility of a causal connection between the accident and the disabling condition. Hammond, supra. I would find Aetna responsible for payment of benefits through plaintiff’s death.

Accordingly, I dissent.

ON REHEARING

PER CURIAM.

After a thorough reconsideration of the facts and law of this case, we adhere to our original recitation of facts, as amplified by the dissent, but now find that the analysis and factual conclusions set forth in the dissent are correct. Plaintiff is, therefore, entitled to recovery.

The original opinion of this court is set aside and the judgment of the trial court is reversed, and the cause remanded to determine the period of disability before death.

ORIGINAL OPINION SET ASIDE, JUDGMENT REVERSED, AND CASE REMANDED.  