
    Gustave FONTENOT v. TRADERS & GENERAL INSURANCE COMPANY and Town of Ville Platte.
    No. 4811.
    Court of Appeal of Louisiana. First Circuit.
    May 18, 1959.
    Rehearing Denied June 24, 1959.
    
      Gold, Hall & Skye, Alexandria, for appellants.
    Fusilier & Vidrine, Ville Platte, for ap-pellee.
    Before LOTTINGER, TATE and HOOD, JJ.
   LOTTINGER, Judge.

This is a suit for workmen’s compensation for the total and permanent disability of petitioner, Gustave Fontenot. The suit was filed against his employer, the Town of Ville Platte, Louisiana, and its compensation insurer, Traders & General Insurance Company. Subsequent to the filing of the petition, petitioner died, and his surviving wife was substituted as petitioner herein. The Lower Court rendered a judgment in favor of petitioner and the defendants have filed this appeal.

The petition alleges that the then petitioner, Mr. Gustave Fontenot, had worked for the Town of Ville Platte for a period of approximately two years prior to September 7, 1956. While working as a manual laborer in the public park operated by the said town of Ville Platte, petitioner on September 7, 1956, slipped while cleaning the swimming pool and injured the left side of the head and face as well as his left shoulder. He continued working for a period of approximately ten days after which the pains became so severe that he saw his family physician, Dr. R. E. Dupre, who placed him in the hospital at Ville Platte.

The record discloses that Mr. Fontenot remained in the Ville Platte hospital for a period of approximately three months after which he was discharged and returned to his home where he remained for approximately five weeks. Mr. Fontenot was then hospitalized at Charity Hospital in New Orleans for an additional period of approximately five weeks, returned home, and later returned to Charity Hospital, where he died on April 10, 1957. Subsequent to the death, Mrs. Eula Brou Fontenot, the surviving spouse in community with the deceased, filed a petition wherein she claims to be substituted instead of her husband as petitioner and seeks her benefits under the compensation law as surviving dependent spouse, at well as any compensation which may have been due to the deceased.

After trial on the merits, the Lower Court rendered a judgment in favor of the petitioner, Mrs. Fontenot, and against the defendants. The defendants have appealed. Subsequent to the appeal, Mrs. Fontenot has filed a motion wherein she informs the Court of her remarriage on August 27, 1958, and asks that the judgment below be modified to limit the compensation awarded her as surviving widow accordingly-

The record, as a whole, discloses that prior to the date of the accident, during the year 1954, the deceased was operated on by Dr. Edgar Paul Breaux, a general surgeon practicing in Lafayette, Louisiana. At that time, Dr. Breaux removed a hard mass from the left side of the neck of the decedent.

At that time, Dr. Breaux advised the patient that he should return for monthly-checkups, and that radical surgery should be performed to the area for the purpose of removing any malignant tissues. During the month of January, 1955 the decedent was sent to Charity Hospital in New Orleans where he received a prophylactic radical neck dissection, which is a more radical operation than the one performed by Dr. Breaux. Subsequent to this operation at Charity Hospital, the decedent returned home, where he resumed his employment in the city park at Ville Platte. The evidence discloses that periodically during that time he returned to Charity Hospital for checkups.

On or about September 7, 1956, the decedent was engaged in cleaning the swimming pool when the alleged accident occurred. There was algae on the bottom of the pool, and while decedent was using a two-inch hose pipe he slipped and fell on his left side. The evidence discloses that he received a brush burn on the left side of his face on or near the scar which had been caused by the radical surgery.

Although there were a number of people helping to clean the pool, the only eyewitness who testified was the decedent’s brother, Jules Fontenot, who was a member of the City Council of Ville Platte and who was just standing by examining the work which was being performed. Jules Fonte-not testified that upon seeing the deceased fall, a Mr. Wiggins started to go and help him up, but that deceased said that he could get up alone, which he did, and deceased continued working. The decedent continued to do his normal work for a period of ten days, when he was admitted to Dr. Dupre’s hospital on September 17, 1956.

The lay testimony submitted by petitioner was given by Mrs. Fontenot, the substituted petitioner, Mr. O’Neal Fontenot, who was a fellow worker of decedent, and Jules J. Fontenot, the brother of decedent. The sum and substance of this lay testimony is to the effect that deceased did his work well and never complained of pain prior to the accident. None of these parties knew that the decedent had a cancerous condition until after he had died; this includes his wife, who testified that she never did know that he had a cancer and from her testimony, it appears that she did not know that her husband had died from cancer until the time of the trial.

Mr. Burney Daigle, the lay witness who testified by deposition on behalf of plaintiff, stated that he was the superintendent of city park. He testified that the decedent did his work well, however, he did sometimes complain of pain in his stomach, chest or neck, however, Mr. Daigle stated that all the other workers complained of pain at one time or another, and he finally admitted that the other workers complained more than decedent.

Dr. R. E. Dupre, a general practitioner and surgeon, who practices in the town of Ville Platte, was the only medical expert who testified on behalf of petitioner. Dr. Dupre testified that decedent saw him on September 17, 1956, at which time decedent gave him a history of the accident occurring on September 7th. At the time, the only objective symptom which Dr. Dupre found was a brush burn on the left side of the face. He stated that decedent also complained of pains in the neck, left shoulder and left side. Dr. Dupre put decedent in the hospital, as he was running a low grade fever, where decedent remained for approximately eighty days, according to the testimony of Dr. Dupre. During this period of hospitalization, Dr. Dupre testified that X-rays were taken shortly after the admittance of decedent and disclosed that decedent had bronchial pneumonia involving both lungs; that he had “some fluid, a little fluid, suggestive fluid in the left lung, and a little spot of atelectasis in his left lung.” The X-rays were sent to Dr. Roma-gosa for examination. Dr. Dupre stated that while the decedent was hospitalized his complaints were mainly of the chest and arm. He discovered a half-inch lump around the vocal box and while in the hospital the decedent complained of ankylo-sis, which is a fixation of the bone joint resulting in the inability of the patient to open his mouth. Dr. Dupre testified that there was no evidence of malignancy while decedent was a patient in his hospital. Dr. Dupre further testified that in his opinion trauma can aggravate a dormant cancer condition, and he believed that the trauma did shorten decedent’s life a great deal. Shortly after admittance to the hospital, decedent’s fever ran rather high, then subsided, and again went up. At the time of his discharge from the hospital, he had a little bit of fever.

Henry Guillory was the only lay witness who testified on behalf of defendants. Mr. Guillory testified to the effect that he was a coworker of the decedent, however, he was not present at the time of the accident. He further testified that the decedent generally did his work well, however, on occasions he did complain that his arm was hurting and that he was not feeling good. He testified that he would help decedent with his work on certain occasions.

Three medical experts testified on behalf of defendants, namely, Dr. William Lewis Meuleman, a specialist in orthopedics, Dr. Edgar Paul Breaux, a specialist in surgery, and Dr. Jerome J. Romagosa, a specialist in radiology. Dr. Meuleman testified that he examined the decedent on January 9, 1957, at which time decedent gave him a similar history as that related above, however, he stated that the accident had occurred on August 17, 1956. At the time of the examination, Dr. Meuleman testified that the decedent complained that he could not eat properly because of pain in the left side of his head and face, and that because of his inability to eat properly, he had recently lost approximately fifty pounds. He found a very hard mass, about the size of a pecan, over the area of the voice box which was eroded and crusted over. The decedent told Dr. Meuleman that this mass was present prior to the accident, however, it had gotten larger since the accident. Dr. Meuleman stated that he examined the X-rays which had been taken by Dr. Dupre shortly after the admission of the decedent to the Dupre hospital, and that these X-rays showed a malignant condition. At that time, Dr. Meuleman told Dr. Dupre of this condition and further told him that the “patient does not have too much life expectancy.” Dr. Meuleman testified that the condition at the time he examined him, as well as the resultant death of decedent, followed the normal course of events for that particular type of cancer, and that there was no relationship whatsoever between the injury and the subsequent death. Dr. Meuleman stated that the malignant condition existed prior to the date of the accident, and this opinion was based upon his seeing Dr. Dupre’s X-ray which was made almost immediately after the accident. He further testified that the history of the patient from the date of entry into Dr. Dupre’s hospital to the time he left, including the subsequent death, is compatible with a cancerous process. Although Dr. Meuleman testified that cancer can be aggravated, he also testified that this particular injury did not aggravate the cancerous condition of the decedent.

Dr. Edgar Paul Breaux, a general surgeon specializing in surgery, of Lafayette, Louisiana, testified that he first examined the decedent on August 23, 1954. Dr. Breaux stated in his deposition that he found a hard mass on the left neck. The patient was referred to Dr. Breaux by Dr. Dupre, and the patient told Dr. Breaux that he had had this mass on his neck for approximately a month. Dr. Breaux recommended an operation, and said operation was performed by him on September 2, 1954, at which time Dr. Breaux, having found a malignancy, advised decedent of two possible courses, either to do a prophylactic radical neck dissection at that time or wait until a gland appeared and then do a radical neck dissection. The patient returned to Dr. Breaux monthly thereafter until approximately the time that he entered Charity Hospital in New Orleans for the radical surgery. Dr. Breaux testified that at the time he performed the operation, the decedent had a condition known as adenocarcinoma of the neck, which is a malignant disease of the salivary gland involving the glandular tissue of this gland. The five year cure of this disease, according to Dr. Breaux’ opinion, would be less than SO per cent. In January, 1955 a mass appeared at the upper end of the cervical chain, at which time decedent was suffering from headaches and sinus trouble, and the patient went to New Orleans for the radical surgery. Dr. Breaux testified that death with pulmonary metastasis almost three years after the original cancer was discovered is in keeping with the natural history of this type of cancer. He stated further that trauma does not cause the spread of cancer, and would have no relationship with this type of cancer. The spread into the lungs, as shown by the evidence, is normal. Dr. Breaux was of the opinion that the death of Mr. Fontenot was of normal causes and had no relationship to the alleged accident.

Dr. Jerome J. Romagosa was the third medical expert testifying on behalf of defendants. He was a specialist in radiology, and has extensive practice in the interpretation and treatment of cancer. On November 21, 1956, at the request of Dr. Dupre, Dr. Romagosa examined the X-rays which had been taken by Dr. Dupre shortly after the admittance of deceased into Dr. Dupre’s clinic. He stated that he found lesions in the lung, however, at the time he did not know whether they were purely inflammatory or malignant. On January 9, 1957, Dr. Meuleman sent the patient to the witness for X-rays and these X-rays showed that the cancer had spread to the lungs of the patient, mostly in the right lung. The X-rays of Dr. Dupre had shown cancer of the lungs, originating in the salivary gland. Dr. Romagosa testified that the injury had nothing whatsoever to do with the malignant process, and that the process was present for a good period of time. He stated that the injury could aggravate the operative condition but that it would not aggravate the cancerous process. He testified that Dr. Dupre’s X-ray showed that the process was fairly well developed, and that it had been started prior to the time of the alleged accident. Dr. Romagosa stated that regardless of the fall the course of the cancer would have been the same, that it just so happened that the natural course of the disease appeared coincidental with the accident.

So, we have three medical experts being of the firm opinion that the injury or the fall of decedent had nothing to do with the cancerous condition of the decedent. The only conflicting medical testimony is that of Dr. Dupre, who is a general practitioner. The other three doctors who testified are specialists who deal with cancer, and it must be considered that Dr. Breaux, a specialist in surgery, and Dr. Romagosa, a radiologist, are specialists in treating the particular type of cancer from which the decedent was suffering. The rule is that, although the opinions of the patient’s general practitioner must be given great weight, his opinion must yield to the conflicting .opinions of specialists who are testifying in their particular field of practice.

Dr. Meuleman, Dr. Breaux and Dr. Romagosa testified to the effect that the accident would not cause nor would it aggravate the cancerous condition, which was present prior to the time of the alleged accident. It was their opinion that this condition was under way and regardless of whether decedent had an accident or not the normal course of events which followed were .already under way and would have occurred anyhow. The complaints of the decedent at the time he saw Dr: Dupre on the occasion of his admittance to Dr. Dupre’s clinic were normal for the type of cancer of which he was suffering. It certainly appears to us that the decedent received no disabling injuries as a result of the fall. Although the testimony of the lay witnesses are given great weight, the expert medical evidence shows that the history of the decedent, as shown by the evidence as a whole, was natural for a person in his condition.

For the reasons hereinabove assigned, the judgment of the Lower Court will be reversed and there will be judgment herein in favor of defendants and against petitioner, dismissing petitioner’s demand, all costs to be paid by petitioner.

Judgment reversed.

TATE, Judge

(dissenting).

I respectfully dissent. In my opinion, the conscientious and thorough majority opinion errs as a matter of law in reversing the trial court judgment. The majority is in effect holding that the eim ployee’s initial disability and his subsequent death are not compensable because, even though the employee had been symptom-free for two years before reactivation of his pain by the fall, the reactivation of the cancerous symptoms could be considered consistent with the normal progress of the disease.

Even though an employee is “already afflicted with a dormant disease that might some day produce physicial disability” a personal injury is compensable “that causes the disease to become active or virulent and superinduces physical disability,” Behan v. J. B. Honor Co., 143 La. 348, 351, 78 So. 589, 590, L.R.A.1918F, 862. As more recently stated, aggravations are compensa-ble when they “cause or contribute to a physicial breakdown or accelerate its occurrence because of a pre-existing condition,” Hemphill v. Tremont Lbr. Co., 209 La. 885, 25 So.2d 625, 627. See Malone, Louisiana Workmen’s Compensation Law, Section 232.

Further, the majority opinion overlooks the rule of law summarized by Judge (now Mr. Justice) McCaleb as organ of the court in Peppers v. Toye Bros. Yellow Cab Co., La.App.Orl., 198 So. 177, where in summarizing the settled jurisprudence, it is stated, 198 So. 182:

“[T]he courts have adopted the view that, where a person who enjoys good health suffers an accident and within a short time thereafter a dormant preexisting illness or old injury disconnected with the accident flares up or becomes active, it will be presumed that the flare up was not a coincidence and that it was set in motion as a direct result of the accident. And it is sufficient for the plaintiff, in order to cast the burden of proof upon the defendant, to show by medical testimony that there is a reasonable possibility that the result claimed for did happen.”

Even without this legal presumption which the majority did not see fit to apply, as did the trial court in arriving at the correct legal result from the virtually un-contradicted facts, I think that the evidence in this case unmistakably shows that the severe fall at work and the resulting hospitalization “triggered” plaintiff’s subsequent disability and complaints of pain.

In late 1954, by a minor operation a hard mass was removed from the left side of the decedent’s neck and found to be malignant. In January or February of 1955, major surgery was performed upon his neck to remove and prevent the spread of any further malignancy.

From February 1955 until the decedent’s accident on September 7, 1956, almost two years later, the decedent lived and worked without complaint, apparently fully cured. No traces or complaints causing suspicion of recurrence were found in the interval, despite periodic checkups by his family physician. During this interval, the decedent “did his work exceptionally well for his age”, his supervisor testified. (Tr. 172.)

While at work on September 7th, however, he suffered a rather severe accident. Due to the water pressure in a large fire-hose he was holding and the slipperiness of the pool bottom, he was flung to the concrete floor and down an 11-foot incline. Along with other effects, he suffered brush burns and contusions down the left side of his body, including over the scar-site for the former operation which became inflamed and “angry-looking”. These objective signs of the decedent’s severe fall were still evident some ten days later, when — having suffered increasingly severe complaints of pain — the employee was admitted to the hospital, where he remained for 80 days. During this interval, he suffered from what the attending physician found to be a traumatic neuritis of the body area affected by the accident and also, as a result of the chest injury received, from pneumonia which (according to the attending physician) is a not infrequent result of a blow to the chest.

For almost two years before the accident of September 7, 1956, the decedent had been healthy and hard working and without unusual complaint of pain; thereafter, and always thereafter until he died, he suffered and complained of pain along and beneath the surfaces of his body involved in the accident. As a direct result of the accident, he was hospitalized for 80 days. A little over six months after the accident he was dead, never in the interval following the accident having been free from the pain which was activated by the accident.

Like the trial court, the unmistakable conclusion I draw from these facts — indeed, the common sense conclusion from them — is that the severe fall and involvement of the decedent’s body in the accident of September 7th played some significant part in reactivating pain and other disabling symptoms of the previously dormant cancerous condition. I think the District Court correctly accepted the opinion of the attending physician that the industrial trauma must under these circumstances be considered as aggravating the latent or dormant malignancy from a non-disabling into a disabling condition.

Admitting that medically the cause of cancer is not yet known, and that medical opinions differ as to whether a trauma can cause or aggravate a cancer, it was the considered opinion of this attending physician — who had attended the decedent both before and after the accident — that as a result of the work injury the employee’s physical resistance was weakened so that his body succumbed more quickly to the previously latent cancerous condition than would have been the case had there been no accident and the subsequently resulting shock, physical injuries, and hospitalization.

The majority feels free to disregard the testimony of this attending physician on the ground that he was “just” a general practitioner, whereas the other experts were specialists: an orthopedist, a general surgeon, and a radiologist. Pretermitting whether their specialties are such as to entitle their opinions to greater weight than that of a general practitioner concerning the theoretical cause of cancer or its aggravation — as to which there is considerable doubt — ; I think an examination of the testimonies of the respective medical witnesses will show that the general practitioner alone testified concerning the legal issue of this litigation.

That issue is whether the accident contributed to or caused plaintiff’s disability, by making manifest symptoms previously unnoticed or by weakening his bodily resistance to cancer or otherwise; and that issue is not whether as a matter of general medical theory the blow itself caused the cancer to spread to the employee’s lungs or caused the cancer anew, again in the scar site where it had lurked, unnoticed and causing no complaints prior to the accident.

Dr. Breaux, the general surgeon, had seen the decedent prior to his operation of February, 1955, when the cancerous growth was removed. He had never seen him in the interval since then, either before or after the accident of September, 1956. Thus the principal force of his testimony is that the employee’s death from pulmonary metastasis (spread of the cancer to the lungs) “is in keeping [with] the natural history” of his disease (Tr. 229).

Dr. Romagosa, the radiologist, never saw plaintiff in his lifetime. He did have occasion to examine x-rays of the plaintiff’s chest and was of the positive opinion that the spread to the lungs must have taken place before the accident of September, 1956. This also was the opinion of Dr. Meuleman, the orthopedist, who spoke of the relationship of the industrial accident and the plaintiff’s condition in such terms as saying that “the cancerous process * * [and] * * * eventual demise” were “not related to the accident” (Tr. 206), or saying that plaintiff’s condition (when he saw him only after the accident and after the long period of hospitalization) the normal “end result of a cancer” (Tr. 205), or opining that the plaintiff’s cancerous condition was "consistent” with the cause of death (Tr. 207).

At the risk of too frequent reiteration, it is immaterial that, medically, the cancer had spread to the employee’s lungs before the accident and that the medical cause of plaintiff’s death was the cancer. The legally relevant and important conclusions are that prior to the accident plaintiff suffered no disability because of the cancer, that subsequent to the accident he consistently suffered from complaints of pain and was disabled, and that the cause of this disability was not only the pre-existing latent cancer now manifesting itself but also certain other otherwise minor chest and neck injuries which (combined with the cancer) produced his hospitalization, weakened bodily condition, and accelerated death. His body, able to cope with the cancer before the accident, following same was no longer able to do so — whether because of a physical or mental weakening, or because of some as yet scientifically undiscovered chemical trigger reaction, is immaterial.

Dr. Breaux, the specialist testifying for defendant, frankly stated: “No one knows the cause of cancer.” He himself, as well as Dr. Romagosa, did not believe that trauma could ever cause or aggravate cancer, although admitting that many other equally eminent doctors did not agree with such opinion. I do not think it proper to accept the testimony of these two specialists as outweighing that of the decedent’s personal family physician, who alone of the medical witnesses had the occasion to observe and to treat the employee both before and after the accident during the interval between the major surgery of 1955 and the employee’s death in 1957, and who testified from equally reputable medical theory that the accident aggravated the •employee’s latent cancerous condition into disability and accelerated his death.

The present majority opinion is in conflict with at least six other court of appeal opinions, which held a death or disability resulting from cancer compensable when as here the symptoms thereof were latent and unnoticed prior to the accident but became manifest immediately and continuously thereafter: Pixley v. Employers’ Mut. Liability Ins. Co., La.App. 2 Cir., 102 So.2d 113; Taylor v. Mansfield Hardwood Lbr. Co., La.App. 2 Cir., 65 So.2d 360; Vautrot v. Maryland Cas. Co., La.App. 1 Cir., 32 So.2d 500 (non-malignant tumor); Custer v.. Higgins Industries, La.App.Orl., 24 So.2d 511; Causey v. Kansas City Bridge Co., La.App. 1 Cir., 191 So. 730; Broussard v. Union Sulphur Co., 5 La.App. 340. These cases correctly applied the presumption that in such circumstances, the aggravation of the pre-existing cancer is presumed to have resulted from the industrial accident, even though many medical specialists do not concur that such is as yet medically proven.

The unfairness of the present result is illustrated by a comparison of the denial of recovery in the present case with the af-firmance of recovery in cases of disability arising by reason of traumatic neurosis.

In the latter type of cases, a disability is held compensable when because of an accident an employee’s attention is centered upon imaginary ailments to the point where neurotically he is unable to work. In the present case, the employee had been untroubled by the latent cancerous condition during the two years following his major surgery; as far as he and the world were concerned, he was among the 50% completely cured as a result of such surgery. As a result of the accident, however, his attention was centered on the left side of the body and on the scar-site of the previous surgery, and he suffered severe and constant and disabling pain. Because the majority finds that the cause of these pains was, not an imaginary ailment, but a (previously unnoticed) pre-existing truly serioits condition, the employee’s disability is held to be non-compensable!

In my humble opinion, my esteemed brethren of the majority have fallen into error on this occasion by overlooking that the test of compensability is not whether the aggravation of a pre-existing condition can be scientifically proven to have occurred as a chemical or test-tube truth; instead, the judicial inquiry should be whether, as the result of a work-accident, the previously non-disabling disease now produces disabling symptoms. The test is not whether the accident aggravated the cancerous condition itself by causing the dread cells to multiply or spread faster; the test is instead whether as a result of the accident the symptoms are now manifest so that the employee, previously outwardly healthy, now suffers pain and is no longer able to carry on his duties. That is, compensable aggravation is measured in relation specifically to external disability to perform former duties (rather than by reference to medical speculations concerning the general nature of cancer). And by that yardstick, the widow of the decedent should recover.

I respectfully dissent from the majority’s reversal of the district court judgment awarding compensation herein. 
      
      . Under commonly accepted definitions, the first specialist is primarily concerned “with the correction of deformities of the limbs, spine, etc.”; the second, “with mechanical or operative measures for healing diseases, injuries, or deformities”; and the third, “with the use of radiant energy in the diagnosis and treatment of disease”. Maloy, Medical Dictionary for Lawyers (2d Ed., 1951), pp. 428 (“Orthopedics”), 525 (“Surgery”), and 481 (“Radiology”). (Italics ours.)
     