
    John L. BRACEY, Plaintiff-Appellant, v. ALEXANDRIA TRANSFER AND STORAGE COMPANY et al., Defendants-Appellees.
    No. 5737.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    
      Larvadain & Scott by Edward Larvadain, Jr., Alexandria, for plaintiff-appellant.
    Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendants-appellees.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff appeals from a judgment rejecting his demand for total and permanent disability benefits under the Louisiana Workmen’s Compensation Act. We affirm.

Plaintiff was employed by defendant, his work consisting of the moving of furniture, appliances and other household furnishings. On October 23,1974, he was injured when a freezer fell and fractured his right ankle. Following this injury plaintiff was treated by Dr. John T. Weiss, an orthopedic surgeon, who diagnosed an undisplaced fracture of the medial malleolus of the right ankle. The ankle was immobilized with a long leg cast, which remained until December 19,1974. Thereafter, Bracey wore elastic hose, however, because of continued swelling he was placed in a short leg cast on February 6, 1975. This cast was removed some 14 days later after which his condition improved to the extent that on April 3, 1975, Dr. Weiss recommended that plaintiff resume “light work”. On the following day Bracey returned to work for defendant and was assigned light duties. The record is not clear as to how long plaintiff worked after he was re-hired however, presumably he worked until sometime in September 1975 when he was discharged.

The record leaves no doubt but that when plaintiff was discharged in September of 1975 he was not disabled by reason of the previous injury to his right ankle. Dr. Weiss testified that his ankle was well healed and that the minimal disability of the right leg, i. e., 10%, would not prevent his return to full employment.

On September 9, 1975, plaintiff complained to Dr. Weiss about his left knee. Dr. Weiss’s examination of plaintiff on this occasion prompted an initial diagnosis of osteoarthritis. Dr. Weiss suggested that plaintiff submit to surgery in order that the bowing of his left knee be corrected. Plaintiff agreed and was subsequently admitted to the hospital. As a result of certain preoperative tests it was determined that plaintiff was not suffering from osteoarthritis but rather from a condition alternately referred to as “genu valgum” or “Charcot joint”. Dr. Weiss in his deposition clearly stated that this condition was secondary to a venereal disease of long standing and that surgery would not help, but rather it would make the condition worse. Plaintiff was discharged from the hospital and has never returned to work. There is no question but that as a result of the condition of plaintiff’s left knee, which according to Dr. Weiss will become progressively worse, he is totally and permanently disabled.

Plaintiff asserts that he is entitled to compensation for total and permanent disability from his former employer on alternate grounds: (1) that his disability is com-pensable because it resulted from heavy lifting or other strenuous efforts which caused or contributed to the physical breakdown of a pre-existing condition, citing Cutno v. Neeb Kearney & Company, 237 La. 828, 112 So.2d 628 (1959) and Hemphill v. Tremont Lumber Company, 209 La. 885, 25 So.2d 625 (1946); and, (2) in the alternative, that as a result of the October 1974 ankle injury he was forced to shift his weight to his left leg which put more stress on that extremity which in turn caused an acceleration of the disabling condition. The trial judge rejected both contentions. We agree.

Plaintiffs first contention is without merit. There is no evidence in the record, medical or otherwise, which would support a finding that plaintiff’s left knee broke down in September 1975 because of heavy lifting or other strenuous effort. Plaintiff had not performed any heavy work for some eleven months prior to that date because of his ankle injury. Although plaintiff did return to light duty in April of 1975 he admittedly did no heavy work his duties consisting of packing cartons with dishes etc. Additionally, the medical testimony (Dr. Weiss being the only medical witness) does not support the conclusion that heavy work caused or contributed to the disabling condition in plaintiffs knee. The above being considered the cited cases are clearly inapposite.

Plaintiffs second contention is equally without merit. Although plaintiff urges that the testimony of Dr. Weiss indicates a causal connection between the ankle break and acceleration of the left knee condition, a fair reading of Dr. Weiss’s testimony indicates that such a causal connection is not within the realm of medical probability. As stated by the trial court:

“In essence what Dr. Weiss testified to was that if a shifting of weight did occur, it possibly could have hastened or accelerated the condition in the left knee. However, he did not testify that it did. On the contrary, Dr. Weiss further explained that the condition was certain to arise anyway, and without the disabling ankle injury, the onset could have been hastened just as much by a continuation of heavy lifting and strenuous work.”

Throughout Dr. Weiss’s testimony, when questioned regarding this causal connection, he stated that the ankle break made no “significant difference” in the development of the knee problem. While it is true that as a result of repeated questioning Dr. Weiss stated there was a possibility of acceleration or aggravation, i. e., some few weeks or two or three months, give or take one to two, a reading of his entire testimony substantiates the trial judge’s position that the condition complained of was not referable to plaintiff’s employment. As recently set forth in Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974):

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971); Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197,177 So.2d 286 (1965); Hogan v. T. J. Moss Tie Co., 210 La. 362, 27 So.2d 131 (1946); White v. E. A. Caldwell Contractors, Inc., La.App., 276 So.2d 762 (1973); Richard v. Guillot, La.App., 271 So.2d 719 (1972); Nellon v. Harkins, La.App., 269 So.2d 542 (1972).” (Emphasis supplied).

For the above and foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge

(dissenting):

I dissent, being of the opinion that the trial court erred as to the applicable law and that the judgment should be reversed. The plaintiff is entitled to benefits for total and permanent disability and to penalties and attorney’s fees for failure to pay compensation from January 22,1975 to September 19,1975. In order to explain my views, I will discuss both the facts and the law.

Bracey’s work involved the lifting and moving of heavy furniture and appliances. He was injured on October 23, 1974, when a freezer fell and fractured his right ankle. It is undisputed that Bracey has never returned to the full performance of his former duties. His treating physician, Dr. John T. Weiss, an orthopedic surgeon, recommended “light work” on April 3, 1975. Defendants paid Bracey compensation for 13 weeks at $65 per week through January 22, 1975, or a total of $845 plus medical expenses of $412.74. Bracey returned to “light duty” April 4, and received neither compensation nor salary for the ten weeks between January 22 and April 4. No mention is made by the trial court of the ten-week gap. Dr. Weiss discharged Bracey on September 19, 1975, but recommended treatment by another physician.

The trial court concluded that Bracey is not disabled as a result of the ankle injury, which Dr. Weiss said caused a 10% residual impairment of the right leg. According to the reasons for judgment, the trial court found the “compensation or salary” (Tr. 49) paid for Bracey’s light work prior to his discharge by his employer, were ample to compensate for this injury. The wages paid were fully earned, according to the record, and the defendants are not entitled to claim them in lieu of compensation. Madison v. American Sugar Refining Company, 243 La. 408, 144 So.2d 377 (1962). There is no question whatsoever that Bra-cey is entitled to compensation from January 22, 1975 until September 19, 1975 and for penalties on this amount plus attorney’s fees.

Bracey is presently disabled and, according to the medical evidence, the problem with his left leg will get progressively worse. The basic question on appeal is whether his condition was caused by the accident.

Bracey’s present inability to perform the duties of his former occupation was attributed by Dr. Weiss and the trial court to a pre-existing venereal disease, previously asymptomatic, which has affected Bracey’s left knee, resulting in a Charcot joint. Bra-cey attributes the problem with his left knee to an attempt to shift his weight from his injured right ankle. Dr. Weiss, whose deposition is the only medical evidence, said this was possible:

“Because there could be a slight increase in stress.” (TR. 42)
* * * * * *
“. it could conceivably have caused a minimal amount of stress on the knee that he might not have had otherwise.” (TR. 43)
ifc Sfc if! * * Jf!
“. . .it might have shown up two or three months sooner . . . . Progressed it, . . (TR. 45)

The only medical evidence is the deposition of Dr. Weiss. He initially saw Bracey on the date of the accident, October 23, 1974, when he diagnosed an undisplaced fracture of the medial malleolus of the right ankle. The ankle was immobilized with a long leg cast, which remained until December 19. Bracey was then instructed to wear an elastic hose. He continued to have swelling — more in February than the doctor expected. Bracey was placed in a short leg cast on February 6, 1975, which was removed February 20 when he was returned to the elastic hose and instructed to wear a “steel shank lace up shoe”. The swelling continued through March to April 3, when Bracey still had some swelling, but Dr. Weiss recommended his return to light work at that time. Dr. Weiss continued to see Bracey until September 19, 1975 when he gave him a 10% disability of the right leg but recognized that he was suffering from a disabling condition of the left knee due primarily to a venereal disease. Dr. Weiss emphasized that Bracey would have become disabled through the knee condition regardless of the ankle injury. However, he also recognized that the ankle injury may have accelerated the development of the disabling knee. He also added that some of the prolonged edema (swelling) of the ankle was connected with the disease.

It is true that Dr. Weiss continually used the terms “might” and “possible” in connection with the acceleration of the knee condition by the ankle fracture. However, my study of his entire deposition convinces me that he found a causal relationship. An important fact, in my analysis, is that Bra-cey never regained the ability to return to his previous employment; he has been continuously disabled from the date of the ankle fracture.

According to the uncontradicted testimony of Bracey and two co-workers, Willie Davis and Milmon Frazier, Bracey had no complaints about his legs and no problem with the heavy lifting required by his job until the accident. Bracey had worked at the same job for seven years without difficulty. The presumption in such a case is that the accident caused the disability. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La., 1973). The trial court erred as a matter of law in failing to apply this presumption.

“. . .a claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, provided that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disability condition.” Bourque v. Monte Christo Drilling Corporation, 221 So.2d 604 at 606 (La.App. 3 Cir. 1969).

Coverage is afforded under the compensation act if disability results from an accident which accelerates [or, as Dr. Weiss put it, “progressed”] the onset of a pre-existing disease. Porter v. Augenstein Construction Company, 280 So.2d 861 (La.App. 3 Cir. 1973).

If Bracey’s, fractured ankle caused, precipitated or accelerated the disabling Char-cot joint, he is entitled to total and permanent benefits.

“It 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 (La., 1976).

The line of cases exemplified by Prim v. City of Shreveport, 297 So.2d 421 (La., 1974), was relied on by the trial court and is urged by counsel for defendants. The present case is distinguished from Prim in that there was no indication that a work-related accident had caused or accelerated plaintiff’s stroke in Prim. The medical testimony was to the contrary, that is, the stroke could not have been caused by the minor injury to the leg. Here, Bracey was disabled as a result of the ankle injury for almost a year; he was placed in a cast for two months and then on a second occasion for three weeks. He never returned to his full duties. According to plaintiff, his leg continued to swell when he attempted light work. This was confirmed by his co-worker, Frazier.

Accordingly, I would hold that Bracey is entitled to a judgment for total and permanent disability benefits. In view of the failure to pay compensation from January 22, 1975 until September 19, 1975, penalties and attorney’s fees should be granted for that period. Following September 19, 1975 there was a reasonable dispute as to causal connection and penalties would be inappropriate.

I respectfully dissent. 
      
      . There is no other testimony in the record except Weiss’ deposition.
     