
    Martin McNUTT, Jr. v. H. B. HUGHES CONSTRUCTION CO. and the Travelers Ins. Co., or the Travelers Indemnity Co.
    No. 1085.
    Court of Appeal of Louisiana. Fourth Circuit.
    July 1, 1963.
    Dissenting Opinion July 2, 1963.
    On Rehearing Feb. 3, 1964.
    Writ Refused March 31, 1964.
    Thomas E. Cheatham, New Orleans, Burglass & Burglass, Harry A. Burglass, Metairie, for plaintiff-appellant.
    Pat W. Browne, Jr., of Jones, Walker, Waechter, Poitevent, Carriere & Denegre, New Orleans, for defendants-appellees.
    Before YARRUT, SAMUEL and CHASEZ, JJ.
   CHASEZ, Judge.

Martin McNutt, Jr., filed suit against H. B. Hughes Construction Co., and Travelers Insurance Company to recover workmen’s compensation benefits for permanent total disability. Defendants admitted that plaintiff had suffered an accident but averred that his injuries were completely cured 19 weeks after the accident, and that after that time plaintiff was able to return to the identical duties of his former occupation. Plaintiff was paid maximum compensation during those 19 weeks.

From a judgment rejecting plaintiff’s demands on the merits, plaintiff brings this appeal.

The injury plaintiff suffered was the result of a mishap while he was cutting brush with an axe on February 1, 1961; the handle of the axe twisted in his hands with some force when the axe struck some unexpected wood or other hard substance. Fie continued at his work until February 4, 1961, when he was referred to physicians because of swelling in his lower left arm and wrist.

Thereafter for 19 weeks he was treated for teno-synovitis, the treatment being for the most part physical therapy supplied by a therapist in Texas, where plaintiff’s family resides.

After his discharge by the Texas doctor to whom the company doctors in New Orleans had recommended him, plaintiff again attempted employment similar in character to that in which he was engaged when the accident occurred. His testimony is that he was unable to exert force with his left hand in certain positions, because of pain and a reflex action which caused his hand to open and his grip to relax.

He thereafter placed himself in the care of Dr. Nick J. Accardo, an orthopedic surgeon, whose testimony in this case is that plaintiff presented a residual disability involving approximately 25% loss of function of his left wrist, in his opinion due to pre-existing osteoid osteoma having been exposed, by traumatic fragmentation of the cortex covering the osteoma, resulting in the pain and reflex reaction upon certain movements and pressures of the bones of the wrist. This condition cannot reasonably be expected to be remedied, not even by surgery.

The District Court noted the irreconcilability of the expert testimony in reference to the several X-ray pictures which showed some abnormality, described by Dr. Accardo as aforesaid and by defendant’s experts as a pseudo-cyst of no significance. The court below considered the testimony of Dr. Meyer D. Teitelbaum, an expert radiologist, as being entitled to greater weight than that of the other experts on the interpretation: of the X-rays. The District Court thus-adopted the view that the abnormality' shown was a pseudo-cyst, which the experts, testified does not cause pain or is not knowni to cause pain.

We agree, of course, that the opinion of an expert radiologist ought to be-accorded greater weight on the question of X-ray interpretation than the opinion of orthopedic surgeons. However, we cannot reconcile the judgment of the District Court-dismissing plaintiff’s suit with the other-evidence in the record. Plaintiff was injured and disabled; his testimony that he has pain and a reflex loss of power in his-hand upon certain movements is not contradicted by any direct evidence, although' one of defendant’s expert orthopedic surgeons, Dr. Russell C. Grunsten, testified that the softness of muscle in those movements; could be attributed either to “a weakness; in the muscles, a defect in the muscular nerve supplied to it, or a voluntary restriction on the part of the patient, and I cannot distinguish between these two things”; and' Dr. Grunsten also testified “although under-situations of farced extension, even with-passive stress against the thumb, there is; noted some reflex action of the outcropping, musculature.”

Our overall view of the record persuades us that plaintiff’s injury of February-1, 1961, has left him with a residual disability which prevents him from engaging-in employment similar to that he enjoyed at the time of the injury, and that the disability is permanent.

The evidence shows that the plaintiff is; a heavy duty equipment operator in the construction business. However he worked' for the defendant as a common laborer.

Plaintiff’s version of his employment and' the manner in which he was injured appears, in his testimony as follows:

“A. They told me they could give me a job as a heavy-equipment operator, they had a man who was leaving their employment and would create a vacancy for me, and if I wanted to work on the crew in the meantime and pick up expenses, that was all right, so I took it.
“Q. What were your wages?
“A. A dollar an hour, but we were working on that particular kind of work, we were getting paid for 12, 14, sometimes IS hours a day.
“Q. How many days a week?
“A. Seven days a week.
“Q. So, your actual salary at the end of the two weeks was approximately what?
“A. I don’t recall the exact amount that I received. I did work each of those weeks in excess of 80 hours.
“Q. Well, it was well in excess of $60.00?
“A. Yes, sir.
“Q. Give us the circumstances surrounding that, would you please?
“A. We were clearing a right-of-way on a well location for Shell Oil Company, and I was having to clear brush with an axe. In chopping these limbs off the trees and things out of the way, the axe twisted in my hand and before I could release the darned thing, it had twisted my arm so bad for an hour or two, actually, I couldn’t use it, and then it seemed to get all right and I went on and worked the balance of the week.
“However, the foreman or pusher, as they call him, did realize that I had a bad arm. I had told him about it, and he managed to see he assigned me to work that I could handle with the sore arm.
Approximately when did that happen, what day of the week? a
Tuesday or Wednesday, the early part of the week.
Did your arm improve or get better ? Ol
It hurt me; it bothered me all along until Saturday, and shortly after our lunch period on Saturday, I noticed that my hand and everything was tingling kind of like it was asleep or something, and I pulled my work glove off, and my hand was swollen and my hand and arm was almost double its normal size, and I showed it to them and they took me to the doctor.
What doctor was that? ¡O
I think his name was Calhoun. He was in this little town just below Buras. >
Empire ? ¡o
Below Empire. >
What did he do? <o
He X-rayed my arm and checked to see if it was broken, because at the time, he thought possibly it was on account of the swelling, and since I had to come back up here to receive my treatment and everything, he just tied it in a splint and put it in a sling, and told me to come to a doctor in Gretna. >
This was on Saturday? lO
Yes, sir. >
When did you see the next doctor? p
On Monday. >
What doctor was that? p
Dr. Logan. >
You were taken to Dr. Logan by the foreman ? p
"A. The company sent me to him; they told me he was their company doctor.
“Q. How long did Dr. Logan treat you?
“A. I don’t want to say this positively, but it was in the neighborhood of a couple of months or a little better than that, about two and a half months, roughly.
“Q. What type of treatment did he give you ?
■“A. Well, first he gave me a shot, some kind of hormone shot that he thought would relieve it, and gave me ultra-sound treatment, and when that didn’t do any good, he put it in a cast. He kept it in a cast for three weeks, I believe, the first time, the first time. He took it out and put it in a half cast, and wrapped it, and they would take it out three times that week, and they gave me three treatments with the sound machine, and they put it back in the cast.
“Q. He put it in that cast several times ?
“A. So many times, to tell the truth, I can’t remember exactly how long each time, but they had it in and out of the cast several times, and finally, he wasn’t satisfied with the progress at all, and he sent me over to see a Dr. Soboloff, and Dr. Soboloff looked at my arm and talked to me, and wrote Dr. Logan a letter, telling him he thought he was giving me the right treatment.
“That’s about all the examination amounted to.”

The defendants produced medical evidence only in this matter.

In addition to his own evidence the plaintiff presented the evidence of Dr. Nick Accardo, an orthopedist. Dr. Accardo testified that plaintiff’s complaints of pain are justified and that plaintiff would always experience pain in his left hand, arm and wrist when engaged in any type of manual labor which requires considerable effort.

Accordingly the judgment appealed from is reversed, and judgment is hereby rendered in favor of plaintiff, Martin McNutt, Jr., and against defendants,- H. B. Hughes Construction Co., and The Travelers Insurance Company, in solido, for workmen’s compensation benefits in the amount of $35.00 per week for a period of not exceeding 400 weeks beginning February 4, 1961, subject to credit for 19 weeks compensation already paid, with interest at 5% per annum on all past payments; and for medical expenses not to exceed $2500.00 and the expert fee of Dr. Nick J. Accardo which is fixed at $150.00.

It is further ordered that defendants shall pay all costs.

Reversed and rendered.

SAMUEL, Judge

(dissenting).

The sole question before this court being whether or not plaintiff had recovered from the effect of his injury, I find it necessary to dissent from the majority opinion and decree which reverses on that question of fact.

The only lay testimony in the record is given by the plaintiff himself. He says that he continues to suffer pain. The medical testimony is in conflict only on one point, i. e., whether the x-rays reveal a pseudo-cyst or an osteoid osteoma. Plaintiff had recovered from the teno-synovitis for which he was treated and there is no conflict as to the characteristics of, and differences between, the pseudo-cyst and the osteoid osteoma. The latter is an uncommon, benign tumor of bone seen, for the most part, in children and young adults (plaintiff was 44 years of age); it could cause the pain of which plaintiff complains. The pseudo-cyst is a relatively common lesion having no clinical significance, producing no symptoms and causing no disability or pain.

Plaintiff’s only medical expert witness was Dr. Accardo, an orthopedist, who examined plaintiff on two occasions approximately six and nine months after the accident and was of the opinion that the x-rays revealed an osteoid osteoma. Defendant’s medical experts consisted of Drs. Soboloff and Grunsten, both orthopedists, and Dr. Teitelbaum, a radiologist, all of whom testified that the x-rays revealed a pseudo-cyst. Dr. Teitelbaum gave extensive, detailed testimony during the course of which he said that in his experience he had seen only approximately six cases of osteoid osteoma whereas he had seen, also approximately, two or three hundred cases of pseudo-cyst. He was positive that plaintiff’s x-rays revealed only a pseudo-cyst. The trial court accepted the testimony of the defendant’s experts, particularly Dr. Teitel-baum, and the majority opinion agrees that greater weight should be accorded the expert radiologist in the field here involved, x-ray interpretation.

I am not only unable to find any error in the conclusion reached by the trial judge, I agree with that conclusion. As plaintiff has failed to carry his burden of proof by a preponderance of the evidence and as the medical evidence, even apparently in the view of the majority opinion, preponderates in favor of the defendant, the judgment appealed from should be affirmed. On a medical question the clear preponderance of the medical experts certainly should not be overweighed by the lay testimony of the plaintiff alone.

I respectfully dissent.

ON REHEARING

Before McBRIDE, REGAN, YARRUT, SAMUEL and CHASEZ, JJ.

McBRIDE, Judge.

The only point at issue herein is the extent and duration of plaintiff’s disability to do work of any reasonable character. He was paid compensation as for total and permanent disability for nineteen weeks, and defendants are contending that plaintiff is entitled to no more as his disability did not extend beyond said period. Whereas the majority of the panel which originally heard the case reversed the judgment appealed from notwithstanding an irreconcilable conflict in the medical testimony and awarded compensation to the claimant, we thought a rehearing was in order so we could re-examine and re-evaluate the testimony of the medical experts. This we have done.

Plaintiff, who is 44 years old, testified he continues to suffer pain and cannot return to his occupation; that because of his injury he sustained a loss of grip in the left hand, cannot fully rotate the wrist, and experiences a reflex action which brings about an involuntary opening of the hand.

Plaintiff received first aid treatment from a Dr. Calhoun and was then referred to the company’s regular physician, Dr. Logan, who put a cast on plaintiff’s left arm and wrist and administered a series of treatments. During the course of Dr. Logan’s treatments, he sent plaintiff to .Dr. Soboloff for examination and appraisal, and Dr. Soboloff approved the nature of the treatment plaintiff was receiving. Subsequently, plaintiff, desirous of returning to his home in Texas, was instructed to report to Dr. Parsons of San Antonio who, in the course of his treatment, had the plaintiff undergo physiotherapy treatments by Dr. Mary Callahan. On June 16, 1961, plaintiff was discharged by Dr. Logan and was advised to return to his normal occupation. Up until this time he was paid compensation by the employer’s surety. There is no dispute plaintiff recovered from the tenosynovitis for which he received treatment, and the question is whether he has at this time a pseudocyst or an osteoid osteoma in the left hand which causes disability. The medical evidence is in sharp conflict as to what the X-rays reveal. Dr. Meyer Teitelbaum, an experienced radiologist appearing for defendants, stated that the condition known as osteoid osteoma is a benign tumor of a bone and is uncommon, usually being found in children or young people. The other condition, pseudocyst, a lesion having no clinical significance, is common and produces no symptoms nor brings about disability or pain. Dr. Teitelbaum believed the X-rays reveal a nondisabling pseudo-cyst and quoted from the writings of medical authors, Drs. Keller and Schinz, to support his diagnosis. Although plaintiff’s right hand is not involved, Dr. Teitelbaum X-rayed that member and the plates showed that plaintiff also had a pseudocyst in the right hand. This feature of Dr. Teitel-baum’s testimony assumes some significance. Dr. Hyman R. Soboloff and Dr. Russell C. Grunsten, both orthopedists, fully concurred with Dr. Teitelbaum’s interpretation of the X-rays and they can find no basis for plaintiff’s complaints or his claimed disability.

The majority of the former panel accepted the testimony of plaintiff’s expert, Dr. Nick J. Accardo, an orthopedist, rather than the testimony of defendants’ medical witnesses. Dr. Accardo thought plaintiff’s complaints of pain are genuine and his prognosis was that plaintiff did and would experience pain and discomfort in his left hand, arm and wrist when engaged in any type of manual labor requiring physical effort. He thought an osteoid osteoma was producing the disablement.

As stated, plaintiff’s expert has taken a divergent view as to what the X-rays show. Drs. Soboloff, Grunsten and Accardo gave their opinions after examinations of plaintiff made only for the purpose of court appearance. We, as laymen, have no way of determining which theory of the physicians is correct, but whereas the law places the burden of proof on plaintiff and requires that he make out his case by a preponderance of the evidence, we feel we cannot do otherwise than to agree with the district judge that plaintiff has not successfully carried such burden. Although the rules of evidence are relaxed in workmen’s compensation cases, a claimant for compensation benefits, as does any other plaintiff, bears the onus of establishing the legitimacy of his claim.

After hearing and seeing the physicians testify, the trial judge adopted the testimony of the defense experts as the predicate for his judgment. He was in the superior position to weigh the testimony and to assess the veracity to be accorded thereto, and we can think of no good reason why the evidence produced by defendants should be discarded and that of Dr. Accardo and the plaintiff accepted in its place and stead. True, mere numerical numbers of experts are not sufficient for a determination of a decision in any case and the court must take the over-all picture of all the circumstances. We are impressed with Dr. Teitelbaum’s testimony, as it must be considered in light of the fact that he is a recognized expert in the field of radiology and it should be accorded considerable weight. We think defendants’ evidence outweighs that of plaintiff.

The situation here is similar to that found in Codifer v. Shell Petroleum Corporation, La.App., 152 So. 133, wherein our predecessors said:

“There is, therefore, only the statement of the plaintiff himself, corroborated to some extent by Dr. Fenno, as against the testimony of Drs. Landry, Edrington, Stone, and Men-ville, with the result that there is an overwhelming preponderance of medical testimony unfavorable to the contention of plaintiff. The plaintiff in a compensation case must make his case reasonably certain. Haddad v. Commercial Motor Truck Co., 150 La. 327, 90 So. 666; Furlow v. Maison Blanche Co. et al., 2 La.App. 351, 354; Stevens v. Ohio Oil Co., 3 La.App. 81; Wilson v. Harris Oil Co., Ltd., 3 La.App. 195; Purvis v. Ware Const. Co., 5 La. App. 684; Dennis v. Fortuna Oil Co., 5 La.App. 709; King v. Rapides Packing Co., Inc., 5 La.App. 424; Reynolds v. Hotel Youree Co., 6 La.App. 790; Hinton y. Louisiana Cent. Lumber Co. (La.App.2d Cir.) 148 So. 478; Gradney v. Standard Fruit & S. S. Co. (La. App.) 144 So. 541; Lee v. Southern Slirety Co. (2d Cir.) 14 La.App. 393, 123 So. 502, 127 So. 36.”

There is no manifest error in the judgment rendered below.

For the reasons assigned, our original decree herein is recalled and set aside, and it is now ordered, adjudged and decreed that the judgment appealed from is affirmed.

Original decree recalled; judgment affirmed.

CHASEZ, Judge

(dissenting).

I am constrained, for the reasons set forth in the opinion originally rendered by this Court, to dissent from the majority view on rehearing.

The plaintiff-appellant in this action is not a malingerer. His testimony and the testimony of Dr. Accardo very clearly set forth that he still suffers pain as a result of the injury sustained by him as an employee of the defendants-appellees, and, at least, until the time of the trial of this lawsuit, was unable to work.

The record indicates that the injury occurred on February 2, 1961; that after having been treated by the doctors of his employer and being discharged from therapy treatment in Del Rio, Texas, he returned to New Orleans and was examined by Dr. Nick J. Accardo, a doctor of his selection who specializes in orthopedic surgery, during the month of July 1961. Suit was filed in this matter on August 29, 1961.

There is no doubt about the conflict of testimony between the experts in this matter. The doctors of defendants-appellees apparently treated the plaintiff-appellant for tenosynovitis from which they believe the patient has recovered. Dr. Accardo states that the plaintiff-appellant was suffering from an osteolythic lesion on the carpal scaphoid bone (another term being osteoid osteoma) from which he has not recovered. Dr. Teitelbaum disagrees with the findings of Dr. Accardo and states that X-rays disclose the plaintiff-appellant has a pseudocyst, a common lesion having no clinical significance that produces no symptoms and does not bring about disability or pain.

Since the plaintiff-appellant, Martin Mc-Nutt, Jr., still has pain, it would appear that the diagnosis of a pseudocyst would be erroneous and that he is still suffering from the tenosynovitis or from the osteo-lythic lesion.

It does not matter what causes his pain. As stated by the Courts:

“ * * * The mere fact that a compensation claimant is unable to specifically identify or indicate the type of injury he has sustained does not preclude a recovery of compensation. The test is disability vel non and not the nature of the injury.” Johnson v. Atlantic and Gulf Stevedores, 102 So.2d 518 at page 520, and the decisions therein cited.

I deem it unnecessary to quote decisions of the Court to the effect that where the medical evidence is in conflict the testimony of a claimant and lay testimony should be accorded great weight.

The only evidence produced by defendants-appellees in this matter is the evidence of their doctors, which is contrary to the medical evidence of plaintiff-appellant.

The original decree rendered herein should be reinstated.  