
    Joe T. HUFFMAN, Plaintiff-Appellee, v. AETNA CASUALTY & SURETY COMPANY, Defendant-Appellant.
    No. 738.
    Court of Appeal of Louisiana. Third Circuit.
    Feb. 5, 1963.
    On Rehearing April 23, 1963.
    Certiorari Refused June 14,1963.
    
      Gold, Hall & Skye, by Leo Gold, Alexandria, for defendant-appellant.
    Polk, Foote & Neblett, by Robert B. Neb-lett, Jr., Alexandria, for plaintiff-appellee.
    Before TATE, FRUGÉ, SAVOY, HOOD and THOMPSON, JJ.
   FRUGÉ, Judge.

This is a suit for workmen’s compensation by Joe T. Huffman against his employer’s insurer, Aetna Casualty & Surety Company. From a judgment awarding plaintiff compensation at the maximum statutory rate for total and permanent disability, defendant has appealed to this court.

At the time of the alleged accident, plaintiff was employed by Asplundh Tree Expert Company. On September 13, 1960, he slipped on an incline and fell against the side of an embankment, striking his back on a spray can which was strapped to his back. There is no dispute that the accident used upon arose out of and in the course of plaintiff’s employment. Additionally, neither party disputes that plaintiff’s remuneration was sufficient to entitle him to receive workmen’s compensation at the maximum rate if he was in fact permanently and totally disabled.

The issue presented for determination by this court is entirely factual in character and involves simply the degree of plaintiff’s disability.

On the day following the accident, plaintiff was examined by Dr. C. J. Schexnaidre, who diagnosed his condition as an acute lumbar muscle sprain and contusion of the lower back. Subsequently, plaintiff was examined by Dr. T. E. Banks, Jr., an orthopedic surgeon, who, at the time of the trial testified for defendant that he was of the opinion that plaintiff had recovered from his injury. Later Dr. Banks testified by deposition that plaintiff was disabled, stating that plaintiff definitely had muscle spasm in his back. It is noteworthy that Dr. Banks saw and examined plaintiff on numerous occasions, namely November 29, 1961, December 2, 1961, December 6, 1961, December 20, 1961, and February 26, 1962.

Numerous other doctors examined plaintiff, some agreeing with the diagnosis of Dr. Schexnaidre and Dr. Banks, while others could find no evidence of back pathology. The court could review all of the medical testimony in this opinion but feels that no useful purpose would be served thereby. Nevertheless, a brief summation of the findings of these doctors will be set forth below.

Dr. Edleman examined plaintiff on October 31, 1961 and reported that he found no evidence of disability. Dr. Faludi, who examined plaintiff on December 7, 1960, found that plaintiff had suffered a severe back sprain and possibly a ruptured disc. It is noteworthy that Dr. Faludi was unable to state the exact period during which plaintiff would be disabled. The same opinion was also manifested by Dr. Banks. Finally, Dr. Hatchett, who saw plaintiff on two occasions, found no evidence of a back injury, although he did not feel that plaintiff was exaggerating his complaints.

We are mindful that plaintiff must bear the burden of proving the extent of his disability with a reasonable degree of certainty. Johnson v. Southern Industries Company, La.App., 77 So.2d 750. Nevertheless, after reviewing all of the evidence introduced at the trial of this case, we are of the opinion that plaintiff is disabled within the meaning of the workmen’s compensation act; although there is some doubt in our mind whether he is suffering from a back sprain or from a ruptured or herniated disc. In reaching this conclusion, we realize that there is conflicting medical testimony. However, the lay witnesses who testified on this matter stated that they had observed plaintiff both before and after his accident and that plaintiff showed difficulty in moving about and exhibited symptoms of suffering from a back condition. Additionally, we have the uncontradicted testimony of plaintiff in this regard. That such testimony should be considered, where there is conflicting medical testimony, is well established under our law. Champagne v. Houston Fire and Casualty Insurance Company, La.App., 85 So.2d 106; Otis v. Board of Com’rs of Port of New Orleans, La.App., 62 So.2d 866. In further support of this conclusion, we note that Dr. Banks saw and examined plaintiff on numerous occasions while the other doctors made their diagnosis after only one or two visits by plaintiff. See Rosenquist v. New Amsterdam Casualty Company, La.App., 78 So.2d 225; Walker v. Monroe, La.App., 62 So.2d 676. We therefore find that the trial court did not commit manifest error in finding that plaintiff was totally and permanently disabled within the meaning of the workmen’s compensation act.

Counsel for appellant urges that he was denied the right to have the plaintiff examined by a doctor of the defendant’s choice. Whatever merit there may have been to this contention at the time of the first trial, the record nevertheless reflects that when the case was reopened for further evidence the defendant was given the full opportunity to have any further medical examinations of the plaintiff. We therefore find no merit in this contention of the defendant-appellant.

Lastly, counsel for defendant urges that plaintiff’s present complaints are due to a subsequent injury suffered by plaintiff, while on a deer hunt. We likewise find no merit to this contention. The record is absolutely void of any evidence which might tend to establish that plaintiff injured his back subsequent to his accident sued upon.

For the reasons assigned, the judgment of the trial court is affirmed; defendant to pay all costs of this appeal and of these proceedings.

Affirmed.

SAVOY, J., dissents and assigns written reasons.

HOOD, J., dissents for the reasons stated in Judge SAVOY’S dissenting opinion.

SAVOY, Judge

(dissenting).

I .respectfully disagree with the majority opinion in the instant case, being of the opinion that the results reached in the majority opinion are not consistent with the medical testimony adduced at the trial of the case in the district court.

The record reveals that prior to the accident in the instant case plaintiff had suffered and collected for three (3) injuries; two (2) accidents causing knee injuries; and the third causing a back injury. Plaintiff received a substantial settlement for the back injury case which occurred prior to the alleged back injury in the instant case, namely, the sum of $4,000.-00.

In his suit in the instant case, plaintiff alleged that on or about September 13, 1960, while in the course and scope of his employment, he was engaged in cutting, trimming and sawing trees; and while so engaged in said labors, he slipped and fell, injuring his back while carrying a tank of liquid spray strapped to his back.

The evidence reveals that no one was present when the alleged accident occurred. Plaintiff contended that because of the injury, he suffered an aggravation of a preexisting condition. He prayed for compensation for the maximum period and at the maximum rate allowed under the Workmen’s Compensation Act of this State.

Defendant denied plaintiff had suffered an injury during the course of employment with it, and alternatively alleged that if plaintiff injured his back in the manner described in his petition, plaintiff was treated by competent medical experts until such time as he was fully cured and relieved of disability and discharged by the attending surgeon as able to resume his normal employment. Still in the alternative, defendant alleged that plaintiff received compensation during his full period of disability and all medical expenses were paid up to and including the date of plaintiff’s' discharge by the attending physician.

The evidence reveals that approximately six (6) days after the alleged accident in the instant case, plaintiff secured the services of Dr. Schexnaidre, a general practitioner at Franklin, Louisiana. After several treatments by said doctor plaintiff went to Alexandria, Louisiana, and was examined by Dr. T. E. Banks, engaged in the specialty of orthopedic surgery. Dr. Banks first examined plaintiff for the injury in the instant case on September 19, 1960. After examining plaintiff, the doctor found plaintiff to be suffering from a mild sprain of the low back. He re-examined plaintiff on September 26, 1960, and again on October 12, 1960. On this last examination, Dr. Banks made the following statement:

“I felt that the patient showed continued improvement and felt that he did not have any signs of sciatic irritation or neurological damage. I felt that there was some possible over acting at the time of the last examination and felt, that because of his past difficulty with which I was familiar with his back that a neuro-surgical consultation was in order and so arranged it.”

Dr. Banks sent plaintiff to Dr. Joseph M. Edelman. Dr. Edelman is a neurological surgeon residing in the City of Baton Rouge, Louisiana. Dr. Edelman examined plaintiff on October 31, 1960. He made a physical examination and. also had x-rays taken of plaintiff’s back. The x-ray films showed a smooth irregular defect in the superior anterior margin of L4, which had the appearance of an old fracture. The doctor was of the opinion that this condition was not related to the patient’s present injury, but that it could possibly have been related to the injury to the back two (2) years before. Dr. Edelman made the following conclusions:

“It was my opinion that the patient showed no evidence of a herniated or ruptured intervertebral disk, that there was nothing to suggest the presence of nerve .root compression. These conclusions were based on the fact that the patient had no mechanical abnormality of his back and no neurological abnormality. I could assign the patient no disability at the time I saw him referable to the injury of September 13, 1960, and I felt that he was able to carry out his usual work at the time that I saw him.”

Dr. Banks saw plaintiff on November IS and December 5, 1960, at which time he discharged him as having fully recovered and as being able to return to his normal work.

Plaintiff was then sent by his attorney to see Dr. H. K. Faludi of Shreveport, Louisiana, an orthopedic surgeon, who examined him several days after his discharge by Dr. Banks, namely on December 7, 1960. The doctor found mild symptoms only, but felt plaintiff had a small herniated disc. On March 20th a myelogram was performed and said test was negative. The doctor was then of the opinion that plaintiff had residuals of a lumbosacral sprain. He last saw plaintiff on May 5, 1961, at which time he found improvement in his condition.

The instant case was heard by the trial judge on June 1, 1961, and completed on that date. The court ordered the matter to be submitted on briefs. Plaintiff was given ten (10) days after receipt of the deposition of Dr. Banks to file his brief, and defendant was granted ten (10) days after receipt of plaintiff’s brief to file his brief. On January 10, 1962, plaintiff filed a motion to re-open the case on the basis of a letter written by Dr. Banks addressed to plaintiff’s attorney dated December 8, 1961, wherein Dr. Banks stated that he had examined plaintiff on November 29, 1961, not having seen him since May, the year is not listed in the letter but I presume it must refer to the year 1961.

Dr. Banks examined plaintiff on May 25, 1961, and his conclusions were the same as those of December 5, 1960. He attributed some weakness in the trunk muscles to inactivity and use of a corset prescribed by Dr. Faludi. Dr. Banks recommended that the corset be discarded, and that plaintiff go back to work.

The trial judge, apparently not satisfied with the medical testimony in the case, on his own motion had plaintiff examined by Dr. Charles V. Hatchette, an orthopedic surgeon practicing at Lake Charles, Louisiana. Dr. Hatchette examined plaintiff on January 5, 1962, and March 2, 1962. On January 5, 1962, he made a physical examination of plaintiff and also had x-rays taken of his back. After the examination, Dr. Hatchette could find no evidence of disability. He re-examined plaintiff on March 2, 1962, and found an acute inflammatory condition of the glandular element of the left groin which resulted from a skinned leg resulting from plaintiff falling two (2) weeks prior to the last examination. Dr. Hatchette did not find plaintiff’s condition to have changed since his first examination.

Dr. Banks examined plaintiff on February 26, 1962, and found him to have muscle spasm in his back. This was a continuation of the pain in the examination of November 29, 1961. Dr. Banks admitted that prior to the examination of November 29, 1961, he had not seen plaintiff professionally for a period of six (6) months.

I am of the opinion that the plaintiff has not proven his case with that certainty required by law. I am convinced that the preponderance of the medical testimony is to the effect that plaintiff had recovered from any injury which he received on September 13, 1960, on December 5, 1960, when plaintiff was discharged by Dr. Banks. If plaintiff has any disability at this time, I am convinced it has no relation to the injury of September 13, 1960.

For the reasons assigned, I respectfully dissent.

On Rehearing,

Before TATE, FRUGÉ, SAVOY, HOOD and RUSSELL, JJ.

FRUGÉ, Judge.

We reach the same conclusion on rehearing as set forth in our original opinion on this matter. For the reasons assigned therein, the judgment of the trial .court is affirmed; defendant to pay all costs of this appeal and of these proceedings.

Affirmed.

SAVOY, J., dissents for the reasons assigned in his dissent set forth in the original opinion.

HOOD, J., dissents for the reasons assigned by SAVOY, J.

On Motion to Revise Judgment of April 23, 1963.

En Banc.

PER CURIAM.

Following rendition of the opinion of this court on rehearing on April 23, 1963, able counsel for the defendant-appellant has filed a motion requesting us to revise such judgment in order to reserve specifically his right to apply for further rehearing, further noting that we did not specifically dispose of a motion to remand filed by said counsel on March 7, 1963, following the original opinion of this court on February 5, 1963.

Under Rule XI, Section 3, Uniform Rules of the Courts of Appeal (1961), 8 LSA-R.S.: “When a case has been decided on rehearing another application for a rehearing will not be considered unless the applicant has not theretofore been granted a rehearing, or unless the court has expressly reserved the right to apply for another rehearing.”

Pretermitting whether or not we have the authority to consider the motion now filed with us (since we have heretofore granted defendant-appellant’s previous application for rehearing as to our first opinion and did not in our second opinion reserve it any right to apply for further rehearing), all issues were fully considered both on the original hearing and on the rehearing. We therefore saw no need to reserve the right of the defendant-appellant to apply for further rehearing.

In deference to counsel’s suggestion, we will further note that of necessity the motion to remand was overruled as without merit when we reinstated our original opinion in this matter, after the arguments on rehearing.

The motion to revise is therefore denied.

Motion denied.

CULPEPPER, J., recused.

On Further Application for Rehearing.

En Banc.

PER CURIAM.

On February 5, 1963, we rendered an original opinion herein affirming the trial court judgment. Thereafter, on March 13, 1963, we granted an application for rehearing filed by said defendant-appellant. Following argument on rehearing, we then on April 23, 1963, rendered an opinion reinstating our original judgment. In this decision we did not reserve any right of the defendant-appellant to apply for further rehearing.

Under Rule XI, Section 3, Uniform Rules of the Courts of Appeal (1961): “When a case has been decided on rehearing another application for a rehearing will not be considered unless the applicant has not theretofore been granted a rehearing, or unless the court has expressly reserved the right to apply for another rehearing.”

Under this court rule, we cannot and will not consider the further application for rehearing submitted by the defendant-appellant with regard to our decision on rehearing, since we did not reserve this party the right to apply for further rehearing after the case was decided on rehearing following the granting of the defendant-appellant’s first application for rehearing.

Application for rehearing not considered.

CULPEPPER, J., recused.  