
    Artie VEULEMAN, Plaintiff-Appellee, v. BITUMINOUS CASUALTY CORPORATION, Defendant-Appellant.
    No. 2568.
    Court of Appeal of Louisiana. Third Circuit.
    Feb. 14, 1969.
    On Rehearing May 22, 1969.
    Rehearing Denied June 18, 1969.
    Gold, Hall & Skye, by James D. Davis, Alexandria, for defendant-appellant.
    John P. Godfrey, Many, for plaintiff-appellee.
    Before TATE, FRUGÉ, and MILLER, JJ-
   TATE, Judge.

Mrs. Artie Veuleman sues the compensation .insurer of her employer. The trial court awarded her compensation for total and permanent disability.

The defendant insurer appeals. Its most substantial contention is that no residual disability is proved.

Although the defendant also contends the accident at work is not proved, the preponderance of the evidence shows:

Mrs. Veuleman was a cashier-checker at a supermarket grocery. While at work on July 5, 1967, her right inner thigh was struck by a grocery buggy shoved by a customer. As a result of the injury to a large blood vessel, the vein sustained a thrombophlebitis, diagnosed as such by the attending physician the next day. When the condition worsened and spread along the vein over the next ten days, the physician hospitalized Mrs. Veuleman for twelve days.

At the time of the trial in March, 1968, some nine months later, Mrs. Veuleman was still under treatment. Her attending physician was of the positive opinion that a! return to work subjected her to definite and appreciable risk of a reoccurrence of the thrombophlebitic condition. He stated, however, that the condition was no longer symptomatic and that he intended to cease further treatments in the next month or so.

The defendant-appellant contends that the trial court erred in awarding compensation for residual disability, since the attending physician admitted that the claimant was (almost) cured from the thrombophle-bitis and that his only reason for advising against a return to work was the possibility of a recurrence. Reliance is further placed upon the testimony of two specialists who minimized even this possibility.

We are unable to accept the contention that no compensation for legal disability is allowed unless the claimant is actually and presently physically unable to perform the duties of his employment. We think the general principle applicable to be:

“The law does not expect, and it does not contemplate, that a worker, in order to make a living, must work in pain, or that he do so when it will materially increase not only the hazards to his own health and safety, but also to those of his fellow employees.” Brannon v. Zurich General Accident & Liability Ins. Co., 224 La. 161, 69 So.2d 1, 3. See also: Glidden v. Alexandria Concrete Co., 242 La. 625, 137 So.2d 894; Reed v. Calcasieu Paper Co., 233 La. 747, 98 So.2d 175; Malone, Louisiana Workmen’s Compensation, Section 274 (1951; 1964 pocket part).

As a corollary to this principle, an employee is considered legally disabled where, by reason of the accident, his susceptibility to reactivation of these symptoms is demonstrably increased by his return to work. Malone, at Section 274 (p. 143, 1964 pocket part). As stated by this court, “A residual condition' is legally disabling and compensable if, as a residual from an accidental injury, the possibility of a reoccurrence of a disabling condition upon a return to work is substantially increased as a result of the accident, as compared with the danger of such occurrence being caused by performance of the work before the accident.” Mitchell v. Travelers Insurance Co., La.App. 3d Cir., 136 So.2d 143, 144, certiorari denied. See also: Guidry v. Michigan Mutual Liability Co., La.App. 3d Cir., 130 So.2d 513; Finn v. Delta Drilling Co., La.App. 1st Cir., 121 So.2d 340, certiorari denied.

The defendant-appellant persuasively suggests, however, that a different legal principle is established by LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So. 2d 779, Noted 28 La.L.Rev. 144 (1967). There, a sandblaster, who had contracted silicosis, was held not entitled to compensation for disability. The court so concluded because the worker had returned to work and could perform his duties without pain or danger to his health, other than the possibility of a recurrence of his occupational disease.

The court there held that, under the occupational disease provision of our statute (LSA-R.S. 23:1031.1; as added by Act 532 of 1952), an employee is entitled to compensation only if actually disabled by the occupational disease. The court stated that, under this provision, “it was never envisioned that compensation would be due unless or until disability occurs.” 193 So. 2d 782. That is, the mere possibility of increased susceptibility to an occupational disease does not entitle one to compensation under the occupational disease provision of our workmen’s compensation statute.

We do not believe the decision to be applicable to the present situation. In the first place, it was concerned with application of the more limited occupational disease provision of our statute, which involves special problems and special rules. See Malone, Section 218 (1964 pocket parts).

In the second place, the decision did not overrule nor even refer (except obliquely) to the well-established jurisprudence cited above, which holds that a worker is regarded as disabled if a return to work definitely involves danger to his health because of a greater susceptibility to reinjury resultant from the prior accident at work. In fact, the Supreme Court apparently accepted this as still a governing principle. At 193 So.2d 781, footnote 2, the court distinguished the LaCoste situation from that governed by decisions such as Johnson v. Travelers Insurance Co., La.App. 1st Cir., 99 So.2d 372 (where it was held that compensation for disability should be awarded to an employee who remained away from work because a return would endanger his health).

With regard to the present facts:

Mrs. Veuleman was a cashier-checker at a supermarket grocery. She had been employed by the store for eleven years at the time of the accident. The evidence essentially shows that a supermarket cashier, with only occasional breaks, remains on her feet in a confined space during the entire eight-hour work-day.

The evidence further indicates that Mrs. Veuleman’s work needed skill and experience for its performance. She is thus regarded as disabled if, as a result of her work-injury, she is unable to return to work to perform the duties of her regular occupation. Branno v. Zurich General Accident & Liability Ins. Co., 224 La. 161, 69 So.2d 1; Smith v. Travelers Insurance Co., La.App. 3d Cir., 174 So.2d 241 (summarizing principles).

Mrs. Veuleman is 54 years of age and about 175 pounds in weight. Her attending physician, Dr. Fraser, was of the firm opinion that a return to her work requiring her to stand for long periods of time would endanger her health by subjecting her to the definite possibility of a recurrence of a thrombophlebitis.

Although he thought there was only a 1% chance of a fatal complication if she returned to work, Tr. 231-32, nevertheless he was firmly of the conviction that there was a definite likelihood of the throm-bophlebitic condition recurring if she returned to work requiring her to be on her feet all day long, and that such a return would involve definite danger to his patient’s life and health.

This medical witness felt that this possibility of recurrence was appreciably increased by her prior thrombophlebitis, which predisposed her to recurrence. Tr. 191, 227, 230. He noted that her excess weight and physical condition also enhanced the possibility of a recurrence, the possibility of which had been definitely increased because of the prior thrombo-phlebitis.

In countering this testimony, the defendant relies upon the testimony of two surgeons. These specialists, based upon a single examination each of the lady eight months after the accident, were of the opinion that there was no residual from the thrombophlebitis. They were further of the opinion that a near-surface (superficial vein) thrombophlebitis, such as Mrs. Veuleman sustained, did not involve any substantial risk of a serious recurrence— one of them estimated that the chances were as little as one in a thousand, Tr. 83.

Neither specialist denied, however, that Mrs. Veuleman had sustained the throm-bophlebitis diagnosed by Dr. Fraser. Both found some symptoms of tenderness or pain in the area of the former thrombo-phlebitis, Tr. 66-67, 95-95, although they ascribed the cause to muscular involvement or varicosity of the veins rather than thrombophlebitic residual. The substance of the surgeons’ testimony is that a near-surface (superficial vein) thrombophlebitis is nowhere near as dangerous or serious as a deep-vein thrombophlebitis. See footnote 3 above. They themselves saw no reason why Mrs. Veuleman could not return to work without substantial danger of a serious recurrence.

The defendant suggests that the trial court erred to accept the general practitioner’s opinion of residual disability over that of the two specialists. We are unable to agree.

The attending physician had seen and treated the lady over an extended period of time, whereas they had examined her only once. Further, the general practitioner in question, the chief physician of a four-doctor clinic and hospital, was shown to have extensive experience in internal medicine and in treating thrombo-phlebitis in many patients over many years, whereas no such qualifications were developed as to the surgeons’ testifying as specialists.

The trial court was thus entitled to accept the opinion of the attending physician over that of the specialists. The trier of fact may always give great weight to the testimony of a treating physician, while in resolving conflicts of medical testimony the probabilities and improbabilities of the statements of the respective medical witnesses must be considered in the light of their capacity, opportunity or incentive for observation, experience and specialty, and the amount of corroboration, if any, afforded their opinion by the facts and circumstances of the particular case. Lotz v. Jamerson Hardware Store, La.App. 4th Cir., 211 So.2d 391; Johnson v. R. P. Farnsworth Co., La.App. 1st Cir., 186 So. 2d 405; Thomas v. Hartford Accident & Indemnity Co., La.App. 3d Cir., 162 So.2d 391.

Under the trial court’s finding of medical fact, the claimant’s disabilty is com-pensable: As a result of the injuries received from the accident, the hazard to the plaintiff’s life and health would be substantially greater if she returned to work after the accident, as compared with such danger from the performance of her duties prior to the accident. McKnight v. Clemons, La.App. 1st Cir., 114 So.2d 114, 116, certiorari denied.

Therefore, finding no error in the trial court’s determination of residual disability indefinitely preventing the claimant from returning to the duties of her employment, we affirm its award of compensation for permanent and total disability. The defendant-appellant is to pay the costs of this appeal.

Affirmed.

On Application for Rehearing

En Banc.

SAVOY, Judge.

We granted this application for rehearing to determine whether an award for workmen’s compensation benefits for total and permanent disability was erroneously affirmed in favor of the plaintiff upon the first hearing; counsel for defendant insurer strenuously contending that Mrs. Veule-man failed to prove that she was suffering any residual disability.

Although there is considerable doubt as to whether or not Mrs. Veuleman was actually injured during the course of her employment, we will resolve that doubt in her favor as did the trial court and proceed to examine the evidence in the record to see if it supports the position that Mrs. Veuleman is totally and permanently disabled under the Louisiana Workmen’s Compensation Act.

Dr. Bernard L. Kaplan testified by way of deposition that he conducted a physical examination of plaintiff’s leg in the area exhibiting pain. During the course of his examination he applied a tourniquet above the groin, thus extending the vein for examination. He stated that Mrs. Veuleman did not complain of pain associated with the vein, and it was his opinion that her pain probably represented some muscular pain. He indicated that she did not have throm-bophlebitis at the time of the examination (March 20, 1968) although he readily admitted that she possibly did have thrombo-phlebitis at an earlier date. He further thought she was not disabled at the present time and any prior trouble had been with regards to a shallow vein known as the saphenous as contrasted to any deep vein trouble. When questioned as to the severity of thrombophlebitis of a superficial vein he responded, “ * * * Superficial vein thrombophlebitis is really a very minor condition.” He testified as to the possibility of a thromboembolism as being highly unlikely and did not think it should be considered in a superficial vein thrombophlebitis as a possible complication. Dr. Kaplan also testified that it is commonly taught that it is not necessary to anticoagulate a superficial vein thrombophlebitis in order to take precautionary measures against possible pulmonary embolism when dealing with a superficial vein thrombophlebitis. When asked what he does for his patients with an obvious case of thrombophlebitis of the greater saphenous vein, he answered that he would possibly have them wear elastic stockings for a while, but would not put them on coagulants. He also stated that he would have them elevate their feet while at rest and do certain amounts of exercise.

Dr. M. E. Gutierrez also testified by deposition. He indicated that his specialty was general surgery, and that he examined Mrs. Veuleman on March 12, 1968, at the instance of the Louisiana Department of Education, Division of Vocational Rehabilitation Disability Determination. A complete physical examination was conducted with the only positive findings being a mild degree of varicose veins (mild to moderate) primarily in the right leg. His examination for a residual for thrombophlebitis although conducted was negative. Dr. Gutierrez stated that although he could not say whether or not Mrs. Veuleman had throm-bophlebitis in the superficial veins of the right leg on July 5, 1967, or for some time thereafter, he was of the opinion that she did not have phlebitis and was not in his opinion disabled, the varicosity being symptomatic and stripping indicated. He thought she should be tapered off her anticoagulants and could return to her former occupation with an elastic support. When asked whether or not the fact that Mrs. Veuleman had suffered a superficial thrombophlebitis would predispose her to a reoccurrence, he answered possibly, his answer being contingent upon the presence or absence of other conditions.

Dr. S. F. Fraser was called upon the trial of the case to testify on behalf of Mrs. Veuleman as her attending physician. He said that although he considered himself a general practitioner, he dealt almost entirely with internal medicine and had occasion to see one or two cases of thrombophlebitis a month. Dr. Fraser testified that he examined Mrs. Veuleman on July 6, 1967,. at which time his examination revealed a superficial vein thrombophlebitis in the right thigh area. Up until the trial Dr. Fraser said that he would check Mrs. Veuleman every several weeks for a prothrombin determination to make certain that the clotting time of the blood did not get too low so as to endanger her. It was his opinion that Mrs. Veuleman should not return to work because of a combination of factors including her elevated blood pressure, her tendency toward obesity, and her occupation included long hours of standing thus diminishing circulation; all of which together may tend to predispose her to the thrombophlebitic problem in the future.

While we recognize the law set forth on the original hearing that “The law does not expect, and it does not contemplate, that a worker, in order to make a living, must work in pain, or that he do so when it will materially increase not only the hazards to his own health and safety, but also to those of his fellow employees”, we are of the opinion the evidence before us does not prove by a preponderance that Mrs. Veuleman would have to work in pain, or that it would materially increase a hazard to her health, should she return to work as a cashier-checker.

The final issue is the period for which benefits should be awarded. Dr. Fraser was of the opinion that Mrs. Veuleman had made a reasonable recovery as of the time of the trial (March 27, 1968) and he felt that she could perform most activity other than standing or sitting for long periods of time. Drs. Kaplan and Gutierrez both were of the opinion that as of the time of their examinations Mrs. Veuleman was not disabled.

Considering the record as a whole, we think plaintiff is entitled to no more than benefits at the maximum rate from the time of the accident up until the trial date, or a period of 37 weeks, at the rate of $35.00 per week from the date of the accident, July 5, 1967, through March 27, 1968, with legal interest upon each installment from date of delinquency until paid. In addition, all of her medical expenses incurred from the accident through the trial date amounting to $1,156.25 are to be paid by the insurer. Costs of this appeal are to be assessed against the defendant insurer.

Affirmed in part, reversed in part and rendered.

FRUGÉ, J., dissents for reasons heretofore assigned on original.

On, Rehearing

TATE, Judge

(dissenting).

The writer respectfully dissents from the majority’s reversal of the trial court on rehearing. My reasons are for the most part set forth in our court’s original majority opinion above.

However, I deem it appropriate to point out that even the new majority opinion recognizes that the attending physician, with much experience in the diagnosis and treatment of thrombophlebitis, was of the positive opinion that a return to work would endanger Mrs. Veuleman’s health and life. As noted by the original affirming majority opinion (and not contradicted by the present .reversing one), this experienced doctor also felt that the possibility of a recurrence of the dangerous thrombophle-bitic condition was appreciably increased by the prior work-caused thrombphlebitis. Tr. 191, 227, 230.

Furthermore, the new majority opinion does admit that one of the specialists (Dr. Gutierrez) who saw this lady once (after most objective surface manifestations had disappeared) admitted that the prior throm-bophlebitis would predispose her to a recurrence. This physician also admitted that it was possible the lady had suffered a deep-vein thrombophlebitis (Tr. Ill) as well as one of the near-surface ones, which both he and the other specialist admitted was a most dangerous predisposing occurrence, a “catastrophic disease” (Tr. 115), “as dangerous a disease as exists” (Tr. 105).

Dr. Gutierrez testified that superficial thrombophlebitis “usually falls into the category of a minor ailment, depending upon its severity and extent”. Tr. 105. He thought that superficial thrombophlebitis did not predispose to recurrences “unless the patient had some systemic illness”. Tr. 106. But, of course here, Dr. Gutierrez did find a systemic illness, varicosity of the veins.

The other specialist “(Dr. Kaplan) also saw the lady but once and then after the superficial (near-surface) manifestations had disappeared, he said. He did find a tenderness, which he imagined was muscular rather than venous (although the lady had never had such complaint prior to her injury of eight months earlier). This specialist felt that Mrs. Veuleman had suffered a near-surface (superficial) vein thrombophlebitis, rather than a deep-vein one. The substance of his testimony is that the former is not “as dangerous in residual”, and that doctors are “not as concerned about it” as compared with the former. Tr. 69. Having arrived (thus eight months later and on the basis of a single examination) at the conclusion that Mrs. Veuleman’s throm-bophlebitis was not of the serious variety, this young specialist then concluded that the treating physician had erroneously afforded her too intensive and extensive a condition. (This attending physician had — unlike him —examined the patient when she was fully subject to the aggravated condition.) Having determined that probably no deep-vein thrombosis had ever existed on the basis of his own belated examination, this specialist then blithely concluded that the chances that a subsequent pulmonary embolism could cause death from a recurrence of a superficial embolism were “negligible” • — ’“one out of a thousand” ! Tr. 83.

My brethren of the majority may feel that the lady incurs a negligible risk by returning to work, since only one out of a thousand persons is likely (if indeed the first occurrence was only an outer-vein complication) to suffer a recurrence by returning to work. This recurrence, however, admittedly subjects the patient to a high risk of death through the clot and traveling to the heart through the bloodstream. What my brethren seem to overlook is that the attending physician (who has treated Mrs. Veuleman over the years and who has treated her constantly since the thrombophlebitic incident) is of the firm opinion that Mrs. Veuleman herself is that one in a thousand who does suffer danger of death through subjecting herself to the risk of a recurrence of the thrombo-phlebitis by returning to her work requiring her to stand long hours on her feet.

I am the last to deny that the extremely skillful advocacy by the appellant’s able counsel is most persuasive. Indeed, our learned and conscientious trial brother, who saw and heard the witnesses, was so much impressed by it that he granted a rehearing and carefully re-examined the record and the law, following his initial award of total and permanent disability.

Nevertheless, just as upon careful reexamination he reinstated the award with full written reasons (Tr. 299-302, affirming his original opinion, Tr. 282-295), so in my opinion should we do likewise. Compensation cases should be determined on facts and medical evidence as reasonably evaluated by the trier of fact, not on the basis of clever legal analyses of the guesses of medical theoreticians who have no basis upon which to judge the seriousness and depth of the original thrombophlebitis of this patient, whom they saw but once and then only months later.

As a matter of fact, even under the majority’s discussion of the facts and the medical evidence, its reversal of the trial court flouts, as a matter of law, the recent clarification of the compensation law afforded by our Supreme Court in Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (March 31, 1969). There, in reversing this court’s determination that the work-trauma’s acceleration of arteriosclerosis was not sufficiently proven, the court stated: “The residual condition from an accidental injury which substantially increases the possibility of recurrence of a disabling or death-dealing episode is legally disabling and is compensable under our Workmen’s Compensation law. * * * The courts should not offer to an accidentally injured employee the alternatives of either returning to work at unreasonable, even unconscionable risk or becoming dependent upon public support. Workmen’s compensation is a creation of the Legislature for the very purpose of localizing the economic responsibility in such a situation.”

Here, Mrs. Veuleman is told by her attending physician that she should not return to work, at the risk of a dangerous recurrence of her thrombophlebitis if she does so. Even the most optimistic estimate of a contrary medical specialist admits that the risk of a fatal recurrence is at least one in a thousand. In actual fact, she cannot and will not return to work because of the medically-based fear of a fatal recurrence. Yet we deprive her of compensation, apparently on the basis of innuendo in legal brief and of our theoretical re-diagnosis of her disease.

I respectfully dissent.

Rehearing denied.

TATE, J., dissents. FRUGÉ, J., votes for rehearing. 
      
      . We do not regard this contention as substantial. The accident is proven by the testimony of the plaintiff herself, corroborated by complaints to two co-employees at work and to members of her family the same day, and by consistent medical history starting that night and thereafter. The employer mainly relies on time-cards, which the record indicates are of doubtful accuracy, and his own unsubstantiated memory of discrepancies in history. The trial court’s thorough and well-reasoned opinion disposed of these factual contentions, and its determination will not be disturbed, based as it is essentially upon an evaluation of credibility.
     
      
      . Thrombophlebitis is the formation of a plug or clot in a blood vessel, causing inflammation and cording of a vein or veins.
     
      
      . The seriousness of a deep-vein throm-bophlebitis results from the great possibility that a blood clot will break loose and block a vessel in the lung or heart, causing death. The evidence reveals that this danger is much less in the case of a near-surface (superficial) vein throm-bophlebitis such as the claimant sustained. How much less is one of the issues of this appeal.
     