
    John L. GOODROW v. HARTFORD ACCIDENT & INDEMNITY CO.
    No. 219.
    Court of Appeal of Louisiana. Third Circuit.
    April 17, 1961.
    Rehearing Denied May 9, 1961.
    Dissenting Opinion May 26, 1961.
    Certiorari Denied June 22, 1961.
    Gist, Murchison & Gist, by DeWitt T. Methvin, Jr., Alexandria, for defendant-appellant.
    Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before SAVOY, HOOD and CULPEP-PER, Judges.
   SAVOY, Judge.

This is a suit for workmen’s compensation brought by plaintiff against the insurer of his employer, Campti Butane Company, Inc., for total and permanent disability at the rate of $35 per week. The trial court awarded plaintiff total and permanent disability at $35 per week.

The evidence disclosed that on the 2nd of April, 1959, while in the course of his employment, plaintiff sustained an injury to his back.

The defendant admits that plaintiff was hurt while in the course of employment, but defends this suit on the grounds that the trial judge should not have awarded plaintiff compensation for the reason that under the medical testimony adduced at the trial, plaintiff was disabled for a period of only forty-five weeks for which compensation has been paid.

Dr. Charles E. Cook and Dr. Heinz K. Faludi testified on behalf of plaintiff. Dr. P. M. Davis, Jr., and Dr. Ray E. King testified on behalf of defendant.

Dr. Cook is engaged in the general practice of medicine and surgery in Natchi-todies. He is the family doctor for the plaintiff. He testified that on April 2, 1959, plaintiff visited his office stating that he had received a back injury while working for his employer, Campti Butane Company, Inc., on that date. After an examination of the patient, the doctor concluded he had received a moderately severe strain of his lumbar muscle area. He prescribed physiotherapy. After two or three days of treatment, plaintiff failed to respond to said treatment so he was hospitalized, placed in traction and given doses of relaxing drugs. He remained in the hospital for approximately three days, was discharged, and then was seen by the doctor at intervals. He had plaintiff fitted with different types of corsets and back braces during his treatment. Dr. Cook admitted that he had not seen plaintiff from January, 1960, until May, 1960, at which time he considered plaintiff still disabled to do his regular work.

Plaintiff was referred by Dr. Cook to Dr. Davis. Dr. Davis is an orthopedic surgeon. He first examined plaintiff on May 7, 1959, and diagnosed the plaintiff’s condition as a sprain of the lumbosacral spine. Plaintiff reported back to his office on July 3, 1959, and on this occasion, Dr. Davis felt that the condition which plaintiff complained of would subside within a month to six weeks. Dr. Davis was positive in his findings that there was no evidence of a ruptured inter-vertebral disc. He found the patient’s back was aggravated by a short leg on the right, and for that reason, his back had not cleared as it should have in a short period of time. Dr. Davis saw plaintiff the last time on February 12, 1960. He stated that on this examination plaintiff was wearing a corset for his back, but that there was no evidence that the corset had been worn at all. There were no calluses or thickening of the skin about the abdomen as would have been present had the patient worn the corset regularly. He also found that both of plaintiff’s legs were scratched, and plaintiff stated that he had been hunting a great deal and walking through the woods. He stated that the scratching of his legs was obtained while hunting. Dr.. Davis made X-rays of plaintiff’s back, made-a complete physical examination, and was. of the opinion that on that date plaintiff had completely recovered from his injury.

Dr. Faludi, a neurosurgeon, saw plaintiff" one time, namely, March 22, 1960. Plaintiff' was referred to Dr. Faludi by his attorney.. Dr. Faludi stated that there was a possibility that plaintiff might have a small herniated disc between L-5 and S-l on the left side. He felt, however, that these findings, were not very strong as far as nerve root compression was concerned, and recommended that a myelogram be performed in-, order to establish this diagnosis more definitely. However, the plaintiff did not return, stating that he was apprehensive about-going through the procedure and was never-seen by the doctor thereafter.

Dr. King, an orthopedic surgeon, examined plaintiff at the request of defendant on May 13, 1960. He had X-rays made-of the lumbosacral spine and also of the-pelvis showing the right hip. It was his; opinion that the films were negative for bone or joint pathology. X-rays of the-right hip showed a dislocation of the hip. Plaintiff explained to the doctor that this, had happened when he was three years-of age. It was the doctor’s opinion after having completed the examination that there was nothing wrong with plaintiff which would prevent him from doing the work he was doing prior to the accident.

Considering the testimony of the experts in the field, namely, Dr. Davis, Dr. Faludi and Dr. King, this Court is of the opinion that on the last examination of plaintiff, which was May 13, 1960, he had completely recovered from his injury of April 2, 1959.

Plaintiff was referred to Dr. Davis at the request of his family physician, Dr. Cook. He examined plaintiff on three different occasions, and was in a better position to evaluate plaintiff’s condition than that of the other two experts who saw him -only one time. Dr. King could find nothing wrong with plaintiff on his examination of May 13, 1960, and Dr. Faludi’s testimony was of a negative nature. His examination was on March 22, 1960, and he admitted that the findings were not very strong as far as nerve root compression was -concerned and recommended a myelogram.

For the reasons assigned, the judgment of the district court is amended so as to ..grant plaintiff compensation at the rate of $35 per week, commencing April 2, 1959, and ending May 13, 1960, subject to credit for compensation heretofore paid, together with interest at the rate of five per cent per •annum on each past due installment from its due date until paid. Defendant is 'to pay all costs of court.

Amended and affirmed.

On Application for Rehearing.

En Banc. Rehearing denied.

TATE, Judge

(dissenting from refusal to grant rehearing).

Under the practice of this court, applications for rehearings are decided by the •entire court, rather than only by the panel which heard the appeal. Although the writer was not a member of the panel which •originally decided this case, I have read and studied the entire record in connection with the pla-intiff-appellee’s application for rehearing; and I must respectfully dissent from the majority’s refusal to grant a re-Tiearing herein. With due respect to my learned and conscientious brethren of the majority, if the original decision of this case is indeed correct, then the other courts ■of appeal have for several decades been incorrectly affirming awards of compensation to claimants disabled by back injuries.

The trial court found the plaintiff to be ■totally disabled. In my opinion, the preponderant medical evidence, and all the lay testimony (which the majority opinion did mot see fit to mention) proves this disability.

The plaintiff is a 36-year-old workingman who has been engaged in hard manual labor since he was 15 years of age, despite a childhood hip injury which produced a permanent shortening of his right leg and a severe limp, which all physicians herein admitted contributed to the extended duration of his disability. The plaintiff had had no difficulty in providing a living for his wife and two children, except for an unrelated disability in 1957. At the time of the present accident in April 1959, he was performing his heavy manual duties without difficulty.

The fact that the plaintiff received a severe wrenching injury to his back in April is not denied. Two physicians who saw him during that time found him to be disabled, and the defendant insurer without complaint paid him compensation for total disability through 45 weeks. The question is whether the plaintiff has a residual disability by reason of back pain.

Two doctors definitely concluded, substantiated in part by obj ective findings, that the plaintiff was disabled because of continued back pain.

Dr. Charles Cook, his family physician for approximately five years before the accident, who was also the attending physician for the present disability, treated the plaintiff professionally approximately twenty times between April and December of 1959, and thereafter saw him irregularly until making another formal examination of the plaintiff on May 10, 1960, eight days before the present trial. This doctor was positive that the claimant is now disabled from performing heavy labor by reason of his back condition, whereas the plaintiff had not been so disabled prior to the present accident. As objective corroboration of the plaintiff’s complaints of pain, this doctor visually noted the atrophy of the patient’s lumbar muscles in May of 1960 as compared with the condition immediately following the accident in April of 1959. See Tr. 140-141.

In addition, Dr. Henz Faludi, a neurosurgeon, examined the claimant on May 22, 1960 and made certain partly objective findings (including “slight muscular spasms in the left lumbar reflex”, Tr. 246) indicative of a small disc herniation (Tr. 254— 256), as the result of which this specialist reached the definite conclusion that the plaintiff “still was considerably disabled” (Tr. 248) because of low back pain.

Against this impressive medical evidence, the defendant produced the testimony of two doctors. Dr. R. E. King, orthopedist, saw the claimant once (and then five days before the trial), and whose testimony could best be summarized as stating that he found no “definite objective symptoms of disability” Tr. 275). Dr. P. M. Davis, orthopedist, had found the plaintiff disabled by reason of a lumbosacral sprain on his examinations of May 2 and June 30, 1959; however, on his last examination of February 12, 1960, it was his opinion that the plaintiff had recovered from his injury.

It is noteworthy, however, that Dr. Davis admitted that he found an additional atrophy in the right thigh on the occasion of his last examination as compared with his earlier examinations (see Tr. 220-221), and that he also admitted that on the occasion of one of his examinations he found a diminished ankle reflex which is sometimes indicative of a ruptured disc (Tr. 233). Both Dr. Davis and Dr. King admitted that patients with disc injuries often suffered pain only intermittently and had periods of remission produced by rest, which could however be immediately aggravated into painfulness by activity. See Tr. 225-226, 280-281.

In addition to the medical testimony, the testimony of the claimant, his wife, an employer, three neighbors and relatives, and his pastor, all testified from their personal knowledge that, whereas the plaintiff had been a good worker before the accident, the claimant now gave every indication of being disabled, sometimes being required to stay in bed, walking and moving differently than before, and otherwise behaving corroborative of his own complaints of pain. This evidence, incidentally, shows that, despite his disability, the claimant tried on at least three occasions to earn a living for his wife and children, but was unable to do so because of a recurrence of the back pains.

What to me is grievous error in the majority opinion is the almost impossible burden it places upon compensation claimants to prove their claim of total disability by reason of a back injury, such as a herniated disc. By the veiy nature of the injury, as even the physicians testifying for the defendant herein agreed, the symptoms become latent and there is a remission of pain following rest, although the disability is immediately reactivated by exertion. Physicians who examine the patient in the later stages of the disability naturally ofttimes do not find objective symptoms of the undoubted disability. In small disc injuries such as the present, ultimately the proof of the pain is merely corroborated by small and fleeting objective symptoms, but the finding of disability essentially depends upon the truthfulness of the claimant, as viewed in the context of the medical opinions and his entire working history.

Our trial brother correctly made this evaluation and found the claimant to be disabled. I will not mention the formerly respected doctrine that the factual findings of the trial court should not be reversed on appeal in the absence of manifest error, a •well-settled rule of our jurisprudence which the majority without reference discards as an unnecessary check upon the omniscience of appellate judges reviewing a cold record. I will simply state that there are several well-settled principles of evaluating testimony in compensation suits which the majority opinion incorrectly ignored or failed to apply when it reversed the trial court’s finding that the claimant was disabled, such as:

The testimony of attending physicians who see and treat a claimant many times should not be disregarded, and should be given far greater weight than the testimony of a medical expert who sees the claimant only once or twice and then primarily for purposes of litigation. Where the medical evidence is conflicting, the courts should resort to lay testimony in an effort to resolve the conflict. (Herein, the majority did not even refer to the uncontradicted testimony of six lay witnesses.) Positive testimony of examining physicians who find objective evidence of disability is of more weight than negative testimony of other physicians who on isolated occasions found no symptoms of disability; and the testimony of physicians examining the claimant on different dates should be reconciled where possible, and examinations with negative findings should be evaluated — where other examinations produce positive findings — in their proper perspective when the medical evidence indicates that the disability is of -an intermittent nature with periods of remission, of symptoms. Perjury is not imputed to apparently credible witnesses, and a claimant is stigmatized as a malingerer only upon clear and convincing proof. (Here, all the physicians admitted that the claimant was cooperative and apparently truthful.)

Among the decisions which applied these principles and reversed lower courts, which had failed to apply them and had therefore improperly dismissed claims for compensation by reason of back disability are: Stringer v. Brown Paper Mill Co., 224 La. 964, 71 So.2d 343; Istre v. Molbert Brothers Poultry and Egg Co., La.App. 3 Cir., 125 So.2d 436, certiorari denied; Shaw v. F. & C. Engineering Co., La.App. 1 Cir., 120 So.2d 523, certiorari denied; Mitchell v. Morgan Roofing Co., La.App. 1 Cir., 118 So.2d 492, certiorari denied; White v. Calcasieu Paper Co., La.App. 1 Cir., 96 So.2d 621, certiorari denied; Fee v. Calcasieu Paper Co., La.App. 1 Cir., 89 So.2d 434; Hebert v. Hartford Acc. & Indemn. Co., La.App. 1 Cir., 88 So.2d 243. See also, e. g.: Cockrell v. Penrod Drilling Co., 214 La. 951, 39 So.2d 429; Miller v. United States Fidelity & G. Co., La.App. 2 Cir., 99 So.2d 511, 512, certiorari denied; Turner v. Southern Industries Co., La.App. 1 Cir., 88 So.2d 238, certiorari denied.

Under these cases, the trial court in the present case may well have been reversed by the reviewing courts in question had it failed to award the claimant compensation for total disability, in view of the preponderating medical evidence and uncontradicted lay testimony, and the complete absence of any indication that the plaintiff was malingering or a perjurer. For it is to be remembered that the only times any doctors did not find objective symptoms of disability were on Dr. Davis’ examination of February 12, 1960 — this doctor nevertheless finding an atrophy on such occasion, and also having found the claimant to be disabled on two prior examinations — and on Dr. King’s examination of May 13, 1960. At every other medical examination, in-eluding Dr. Cook’s latest on May 10th — and this doctor had also seen the claimant frequently over an extended period of time— and Dr. Faludi’s on March 22nd, the examining physicians found the claimant to be disabled.

Feeling strongly that error therefore has been committed and that grave injustice will result, I must therefore respectfully dissent from the rehearing’s denial by my esteemed, conscientious, and learned brethren of the majority. 
      
      . See his testimony at Tr. 275-276:
      “A. I concluded that the patient was not presenting positive findings of an injury to an intervertebral disc in the lumbar region of the spine. He had increased strain on the lumbo-sacral due to the shortening of the right leg, and I felt that back pain could very well be due to that particular thing and that he would be benefited by wearing a lift on his right shoe to balance his pelvis and to equalize his leg lengths. I found motion in his low back to be full, no palpable muscle spasm and no sensory or reflex changes in his legs, and I felt his symptoms were largely subjective in nature and felt that he could do the work he did prior to his injury as far as Ms orthopedic examination, was concerned and I was not able to find any definite objective evidence of disability due to residuals from a low back injury.” (Italics mine.)
     
      
      . The claimant told the examining physicians that he had attempted unsuccessfully to work, and he also frankly stated that he did not wear the corset regularly because it was so painful, and I am just unable to agree that the scratches on the plaintiff’s leg — sustained while hunting or attempting to work in the woods— or his failure to wear the corset are sinister indications that the claimant was a malingerer or a perjurer, or that the substantial positive testimony of two physicians that the plaintiff was disabled should be disregarded because of them.
     