
    Axion McGEE, Plaintiff and Appellee, v. AUGENSTEIN CONSTRUCTION COMPANY, Inc., Defendant and Appellant.
    No. 479.
    Court of Appeal of Louisiana. Third Circuit.
    Jan. 29, 1962.
    Rehearing Denied Feb. 21, 1962.
    Certiorari Denied March 28, 1962.
    Plauche & Stockwell, by Fred H. Sievert, Jr., Lake Charles, for defendant-appellant.
    Charley Quienalty, Lake Charles, for plaintiff-appellee.
    Before TATE, SAVOY and CULPEP-PER, JJ.
   CULPEPPER, Judge.

This is an appeal by Augenstein Construction Company, Inc. from a judgment awarding the plaintiff, appellee, Axion McGee, maximum weekly compensation during disability not to exceed 400 weeks beginning as of December 21, 1959, subject to a credit of $1400 for compensation payments previously made for the period, December 21, 1959, through September 27, 1960. Said judgment likewise cast defendant for medical expenses totaling $1,110.33, plus penalties of 12% on the approved portion of the bill of Dr. Peter A. Viglia, in the amount of $846. Plaintiff has answered the appeal, requesting the additional award of penalties and attorney’s fees on all amounts recovered and in the alternative penalties and attorney’s fees on all medical expense, and in the further alternative, attorney’s fees as to the award for the medical charges by Dr. Peter Viglia.

The issues presented by appellant’s assignment of errors, are (1) the occurrence of an accident on December 7, 1959, (2) plaintiff’s disability beyond September 27, 1960, to which date defendant paid weekly compensation, (3) whether plaintiff’s disability, if any, beyond September 27, 1960, was permanent or temporary, (4) the award for medical expenses and (5) the award of penalties on the bill of Dr. Peter A. Viglia in the sum of $846.

Addressing ourselves first to the issue of the occurrence of an accident or accidents, we find plaintiff contends that, in the course and scope of his employment as a winch truck driver for defendant, he sustained an accident on or about November 2, 1959 while attempting to crank a welding machine, at which time he twisted his back causing pain and injury. Plaintiff further contends that, after certain treatment, he returned to perform light duty in said employment and on December 7, 1959, he sustained another accident when the truck which he was driving rolled over a concrete pipe guard and dropped a distance of about 8 inches, causing his back to be jerked. It is plaintiff’s position that as a result of the injuries received in these two accidents he sustained total and permanent disability. In a well considered written opinion our learned brother below disposed of the issue as to the occurrence of these accidents by the following reasoning which we adopt as our own:

“Since the employer seriously disputes the happening of either accident, it is necessary that the Court first determine whether or not plaintiff had one or both of the alleged accidents in the course of his said employment. The evidence clearly establishes the fact of an accident on November 2, 1959, while plaintiff was engaged in cranking a welding machine and slipped and caught himself with his left hand and claims he felt a severe pain in the area of his back. Plaintiff described the nature of the accident, stating that it occurred shortly after the beginning of work on that date, that he reported to the company office and notified his foreman, Mr. Albert Durant, Sr., about the accident, and that the foreman sent him to the first aid station, where he was seen by Dr. J. W. Crookshank. Dr. Crookshank confirmed the examination of plaintiff on that date, mentioned plaintiff’s complaint of pain in the back and in the abdominal area, and reached a tentative diagnosis relating to a possible kidney stone or acute pancreatitis. Dr. Crookshank also referred to the fact that an accident report had been filed with the company in relation to plaintiff’s visit to the first aid station on that date. Mr. Durant, plaintiff’s foreman, confirmed the immediate report of the first accident, stating he later drove the plaintiff to Lake Charles, during which trip plaintiff decided to consult another doctor on that same day. The fact of the first accident was also confirmed by R. D. Frazier, who worked with plaintiff, as well as by Dr. Harry S. Snatic, whom plaintiff consulted during the afternoon of the date of the accident, and who treated plaintiff for the back injury until November 7, 1959, when he released the plaintiff to return to his work with plaintiff’s full approval. Dr. Snatic testified that his findings were compatible with the history of the injury given him by plaintiff, and he concluded that he had sustained an injury to his muscles in the upper lumbar area of the back.
“Mr. Durant, the foreman, testified that plaintiff returned to work three or four days after the accident of November 2, 1959, with instructions from Dr. Snatic for light duty work, and he put plaintiff to work on a compressor, and later put plaintiff back to work on a winch truck, which developed to be the only work available, and it was accepted by the plaintiff. As mentioned above, the fact of the first alleged accident was clearly established, with resulting injury to plaintiff in the lumbar area of the back.
“The second accident was described by plaintiff much the same as alleged in his petition, but without the confirmation of the happening thereof by fellow employees.” “Mr. Frazier testified he knew of the plaintiff’s winch truck being stuck, but knew nothing of .any injury then sustained by plaintiff. Mr. Durant, plaintiff’s foreman, testified he did not know of any second accident causing injury to the plaintiff until a few days prior to the trial of the case. Mr. Walter Doucet knew of the truck accident, having pulled plaintiff’s truck out after it ran over the pipe support, but explained that plaintiff was standing by his truck when that was done and that he did not recall that plaintiff told him of having been injured in that accident. Later, Mr. Doucet was recalled to testify.and stated that plaintiff had told him he was hurt at the time, and the witness explained that he did not see plaintiff receive any injury and was mistaken in his original testimony to the effect that plaintiff had made no complaint whatsoever to him. After his truck was pulled out, plaintiff testified it was almost time for lunch, and he went to the company office and requested the chief clerk, Mr. K. J. Trahan, to make an appointment for him with Dr. Peter A. Viglia, and the appointment was arranged for five o’clock P.M. on that same day. Plaintiff did report to Dr. Viglia, who testified that he first examined plaintiff on December 7, 1959, and that plaintiff gave him a history of the two accidents, one on that date and a prior accident on November 2, 1959, substantially the same as testified to by plaintiff himself. Plaintiff maintained that he advised Mr. Durant and Mr. Tra-han of his second accident, but each denied that it had been reported to him. Mr. Trahan did recall the request of plaintiff on December 7, 1959, in relation to the appointment with Dr. Viglia.
“The record shows that Dr. Viglia treated the plaintiff for injury in the back, except for short periods of time, from December 7, 1959, through September 27, 1960. After his first examination, the plaintiff testified that he did not return to work for about a week after the alleged second accident, and that he worked two or three days and was then “laid off” and was never called back to work. Mr. Trahan testified that the records of the company show that plaintiff worked only a total of eight hours during the week in which the alleged second accident occurred, and it may be assumed that he was credited with eight hours work on December 7, which is the date plaintiff says the second accident occurred. Company records show that plaintiff worked 26 hours during the following week and that his employment was terminated on December 17, but that subsequently he was called back to work for short periods and his employment was finally terminated on December 28, 1959, along with six other operators.”
“Although the evidence indicates very strongly that Mr. McGee’s fellow employees were unaware of any injury sustained by him on December 7, 1959, and denied that he reported any injury or complained of such, it was established that the winch truck operated by Mr. McGee on that date was involved in an accident, the nature of which is circumstantial corroboration of Mr. McGee’s testimony that he was severely jolted in that accident, causing pain in the area of his back. The evidence does not establish that he consulted Dr. Viglia about his injured back on that same date and was found to have symptoms confirmatory of a recent accident of the type he described. All of the medical histories related by the various doctors who examined and/or treated him confirmed the fact of two accidents in the course of his employment, one in November and the other in December of 1959, and these facts and circumstances have caused this Court to conclude that the plaintiff sustained one or two accidents causing injury to his back, for which he was subsequently examined and/or treated by several competent doctors.”

Defendant’s next contention is that plaintiff has not proved he was disabled beyond September 27, 1960, to which date weekly compensation was paid. In discussing this issue we find, at the outset, the evidence establishes that plaintiff sustained an injury to his back in 1947 diagnosed as a ruptured disc at the Lr4 interspace, for which recommended surgery was declined by plaintiff who was paid workmen’s compensation for a total of 400 weeks for disability resulting from that accident. Plaintiff testified that following the 1947 injury he returned to his farm in Evangeline Parish, and after two or three years, no longer needed medical treatment. The evidence shows that in 1955 plaintiff moved back to Lake Charles where he engaged in various employments requiring strenuous physical labor until the accidents which occurred in November and December of 1959 while working for the defendant. Plaintiff first worked laying ceramic tile for a period of four to six months, then he was employed by a gas appliance company delivering appliances and driving a truck, next he worked for several months for the maintenance division of the State Highway Department. All of these various work engagements involved heavy manual labor, and the fact that he did perform such labor without complaint or indication of any disability for the Highway Department was corroborated by Mr. Phillip Fontenot, who was his foreman for a period of six to seven months. In about July of 1957 plaintiff went back to general construction work, as an operating engineer for the defendant and he performed heavy manual labor in that employment, driving a winch truck and maintaining welding machines, until the accidents in November and December of 1959. His ability to perform this work for the defendant was confirmed by the testimony of his superiors and his fellow employees.

The above discussion of the 1947 accident and plaintiff’s recovery therefrom is not for the purpose of indicating that the accidents which occurred in November and December of 1959 aggravated the pre-ex-isting 1947 injury, because even Dr. George P. Schneider, the only orthopedic specialist called by plaintiff, testified there was no relationship whatever between plaintiff’s present disability and the 1947 ruptured disc. Dr. Schneider testified that plaintiff’s present disability is causally related only to a compression fracture at the L-2 level. The sole purpose of our discussing the 1947 injury is to show that plaintiff had recovered from said injury and returned to strenuous physical labor for several years preceding the accidents which occurred in 1959.

To prove disability, plaintiff called two expert medical witnesses. The first was Dr. Peter A. Viglia, a general practitioner, who examined plaintiff immediately after the accident of December 7, 1959. Dr. Vig-lia’s initial diagnosis was muscle strain of the upper lumbar area for which he prescribed diathermy and medication. Dr. Viglia continued to see and treat the plaintiff and finally called in consultation Dr. George P. Schneider, a specialist in orthopedics, who examined the plaintiff on January 21, 1960. It was only after Dr. Schneider expressed the opinion that plaintiff had a compression fracture at L-2, that Dr. Viglia re-evaluated the x-rays which had been taken by him and also concluded from these x-rays and from the physical examination that the claimant had a compression fracture at L-2. Dr. Viglia continued to see claimant until as late as February of 1961 and expressed the opinion that plaintiff could not return to the strenuous physical work which he was doing at the time he was injured.

Dr. George P. Schneider first examined Mr. McGee on January 21, 1960 at the request of Dr. Viglia and from x-rays and a physical examination he diagnosed a “slight left lateral compression fracture at L-2”.

Although Dr. Schneider also found a congenital defect at L-S, he expressed the opinion that this congenital defect was not involved in the present symptoms. As stated above, Dr. Schneider was also definitely of the opinion that if Mr. McGee had sustained a ruptured disc at L-4 in 1947, this also was not in any way involved in the present symptoms. He first expressed the opinion that the findings were of a mild nature requiring only conservative treatment which he thought would lead to eventual recovery within three to four months from the date of his initial examination. Subsequent examinations reflected no substantial change in his opinion except in the tightness and stiffness of muscles as a result of nonuse. Following an examination of the claimant on August 5, 1960, Dr. Schneider rendered a report of date September 12, 1960, stating that the only remaining symptoms of the injury were tightness in the erector spinae muscle masses of the back and the hamstring musculature in both legs and marked discomfort on direct palpation over the injured lumbar vertebra. In said report Dr. Schneider recommended “that the procedure of choice was the resumption of his usual activities” which should rehabilitate the said muscles within six to eight weeks after his said examination of August 5, 1960. It was after receipt of this report that the defendant stopped weekly compensation payments on September 27, 1960, which was approximately eight weeks after Dr. Schneider’s examination of August 5, 1960. However, the claimant did not return to work involving strenuous physical activities and consequently his muscles were not rehabilitated. Dr. Schneider expressed the opinion that perhaps there was an anxiety factor in addition to the weakness of the muscles and that “the two factors combined are sufficient to continue his disability for a rather indefinite period of time.” However, under cross-examination, Dr. Schneider expressed the opinion that as far as the physical symptoms were concerned Mr. McGee would recover therefrom after approximately six to eight weeks of gradually increased activity, although at the outset, because of the weakness in his back muscles and his hamstring musculature he would experience some discomfort. We quote the following from Dr. Schneider’s testimony:

“Q. Doctor, can you with any reasonable medical certainty give us a time when this could be accomplished by Mr. McGee returning to his work and resolving the tenseness in his muscles in his back and hamstring muscles in his buttocks?
“A. Unfortunately we are very limited in our ability to return individuals to limited employment. I feel that would be the ideal situation for Mr. McGee, and, if this could be carried out by a responsible and cooperative employer, that in a period of approximately six to eight weeks on light employment, he could progressively advance to the state where he could resume his usual type employment. This is a variable and is based on my previous experience with similar type problems. It may be longer; it may be less. This is an approximation.
“Q. Doctor, from your experience, with reasonable certainty, would the approximation be much more than three months? You said six weeks to eight weeks.
“A. I feel that under the circumstances described, that that should be an adequate period of time. '
“Q. And with reasonable medical certainty, if Mr. McGee returned to work, progressively harder work, over that period of time, that he would resolve the physical factors that are now in his back, in the erector spinae muscles and the hamstring muscles.
“A. Yes, sir.”

The defendant first called as expert medical witnesses, Dr. Donald E. Robinson and Dr. Frank H. Marek, both specialists in radiology, who testified that after examining and rechecking thoroughly numerous x-rays, they were of the positive opinion that there was no compression fracture at L-2. These two doctors admittedly made no thorough physical examination and based their opinions on an examination of the x-rays. The defendant also called Dr. Jerome W. Ambrister, a specialist in orthopedics, who examined plaintiff on February 26, 1960 and again on February 10, 1961, and concluded that there was no fracture or dislocation at the L-2 level. Dr. Ambrister was of the opinion that plaintiff could return to his former employment of operating a winch truck, although he did find that Mr. McGee had slight limited motion of his back due to nonuse of the muscles.

Defendant also called Dr. Charles V. Hatchett, an orthopedic surgeon, who had seen and treated plaintiff for the 1947 ruptured disc at L-4. Dr. Hatchett examined Mr. McGee on January 17, 1961 and expressed the opinion that any present difficulty experienced by Mr. McGee is caused by nerve root compression from the old ruptured disc sustained in 1947. Dr. Hatch-ett testified that even if plaintiff had aggravated the old disc injury in November or December of 1959, he had recovered therefrom and that as of the date of his examination in January of 1961 Mr. McGee’s-back was in the same condition as it was-before the 1959 injury. Dr. Hatchett expressed the positive opinion that there was-no fracture at the L-2 level nor any symptoms referable thereto.

It is the contention of the defendant that even under the testimony of Dr. George P. Schneider, the only orthopedic specialist who testified for plaintiff, Mr. McGee’s present complaints are referable solely to a compression fracture at L-2 from which he has completely recovered except for the tightness and stiffness of muscles due to nonuse and that the plaintiff has simply refused to follow the recommendation of Dr. Schneider that he return to strenuous activities in order to rehabilitate these muscles. The defendant cites Fouchea v. Maloney Trucking & Storage, Inc., 108 So.2d 273, 277 (Oxdeans App.1959) in which the court held as follows:

“Plaintiff contends that if he has to endure pain in the course of his work he must be considered totally disabled because the law does not exact that an injured workman must return to work under the handicap of severe pain. We agree that this is a correct statement of the law as would be applied in a case where the pain is caused by the injury itself, but we do not agree that where the injury has been completely healed and the workman’s condition is the result only of a long disuse of the injured member that he can refuse to return to work because of slight pain and thus not cooperate with the physicians by taking the prescribed work therapy.
“We are convinced that exercise is all that can improve plaintiff’s ability to work, and we agree with what the Second Circuit Court of Appeal said in •Coats v. Windsor, 167 So. 483, 484:
“ * * it can make no difference whether the exercise he takes is idle ■exercise or used in a gainful occupation, so. long as the exercise is not too strenuous.’
“Other cases in which was discussed the duty of an employee to cooperate in the treatment given him by returning to work and exercising the injured member where such activity would be beneficial to his condition are O’Niel v. M. W. Kellogg Co., Inc., La.App., 190 So. 182; Costello v. French Market Ice Co., La.App., 159 So. 466, and Daste v. Gwin, 13 La.App. 378, 128 So. 41, decided by this court.”

In answer to this contention, plaintiff argues that both Dr. Viglia and Dr. Schneider, who were the treating physicians, have expressed the opinion that Mr. McGee cannot resume his former employment without enduring substantial pain and that he is therefore deemed totally and permanently disabled. See Reed v. Calcasieu Paper Co., 233 La. 747, 98 So.2d 175 and the many authorities cited therein. Plaintiff also cited Brannon v. Zurich General Accident and Liability Ins. Co., 224 La. 161, 69 So.2d 1, and the authorities cited therein, for the proposition that a workmen’s compensation claimant will be deemed totally and permanently disabled where he cannot return to work and at the outset perform all of the duties of the same type of employment he was doing at the time of the accident.

The case of Cummings v. Albert, 86 So.2d 727, 730 (1st Cir.App.1955) is similar to the instant case except that there apparently was a conflict in the medical testimony as to whether or not the claimant would be rehabilitated by a return to his former type of employment, and the court held, “ * * * the test is not whether a plaintiff in a compensation case is able to do light work, but is whether or not he is able to do the same work he was doing when injured, or similar work, and we are not to speculate on the time it would require for his recovery or in fact whether he would recover at all, especially in the face of the conflicting medical testimony.”

In the instant case, unlike the Cummings case, there is no serious conflict in the medical testimony. Dr. Schneider, the only orthopedic specialist who testified for the plaintiff, expressed the definite opinion that whatever disability the plaintiff now has is the result of nonuse of muscles following a compression fracture at L-2 and that these muscles would be rehabilitated after six to eight weeks of returning to gradually increased activities. Defendant’s expert medical witnesses, Dr. Robinson, Dr. Mar-ek, Dr. Ambrister and Dr. Hatchett, all testified positively that there was no compression fracture at the L-2 level. As to the testimony of Dr. Viglia, a general practitioner, who testified for the plaintiff, he simply áccepted generally the diagnosis and opinion of Dr. Schneider. Under these circumstances, claimant must rely on the testimony of Dr. Schneider, if he is to recover workmen’s compensation benefits in these proceedings. The issue with which we are presented is therefore identical to that in the case of Fouchea v. Maloney Trucking & Storage, Inc., supra, in that the injury received in the accidents in the instant case has completely healed and the claimant’s present condition is the result only of a long disuse of the injured muscles. In our opinion, under these circumstances, the plaintiff cannot refuse to return to work because of slight discomfort and thus not cooperate with his physician, Dr. Schneider, by taking the prescribed work therapy. With reference to the degree of discomfort or pain which Mr. McGee would suffer during the period of rehabilitation of his muscles, we note that Dr. Schneider testified as follows:

“Q. What is your opinion as to whether or not Mr. McGee is presently in pain?
“A. I feel it would be difficult to delineate the factor of pain. This type of process is most consistently associated with an aching factor of discomfort rather than true pain, and by his own admission the utilization of medications which I prescribed for him and the utilization of mild salicylate preparations on his part has afforded some relief to his type of discomfort, and that is also consistent with the picture that he presented.”

For the reasons hereinabove set forth, it is our opinion that plaintiff is entitled to no weekly compensation payments beyond the date, September 27, 1960 on which payments were stopped by the defendant.

In view of the above conclusion, claimant is entitled only to medical expense incurred through said date of September 27, 1960. We note that of the medical expense in the sum of $846 represented by the bill of Dr. Viglia, the sum of $144 was incurred after September 27, 1960, and this amount must be deducted, leaving only the sum of $702 of Dr. Viglia’s bill for which plaintiff is entitled to recover in these proceedings. Similarly, the lower court judgment awarded $200 for the bill of Dr. Schneider, but of this amount only $75 was incurred before September 27, 1960. The item of $19.33 for Snell’s Limb & Braces, Inc., as well as the item of $45 for Lake Charles Memorial Hospital were both incurred after September 27, 1960 and must also be disallowed. The total amount of medical expenses for which plaintiff is entitled to recover in these proceedings is therefore the sum of $777.

As regards penalties and attorney’s fees, we, like the trial court, are of the opinion that the defendant did act in an arbitrary manner in refusing and neglecting to pay the approved portion of the medical bill of Dr. Viglia. The principal excuse offered by defendant for failure to pay this bill was that it thought Dr. Viglia had made unwarranted charges for time consumed in consultation with specialists since other doctors in the area did not charge for such services. Under the evidence, this did not justify defendant’s failure to pay the bill of Dr. Viglia in said sum of $702, on which, it is our opinion, plaintiff is entitled to recover penalties of 12%. We also are of the opinion that claimant is entitled to recover attorney’s fees as regards the said medical bill of Dr. Viglia, but proportionate to the recovery in this respect, which in our opinion is the sum of $300. See the recent case of Shuff v. Liberty Mutual Insurance Company, 134 So.2d 707 (3rd Cir.App.1961, writ denied) and the authorities cited therein.

For the reasons hereinabove set forth the judgment appealed from is reversed and set aside insofar as it awards plaintiff weekly compensation over and above that already paid for the period ending September 27, 1960. The judgment is amended by reducing the total amount awarded for medical expenses to $777, and by reducing the amount of Dr. Viglia’s bill, on which penalties of 12% are awarded, to $702. In addition, an attorney’s fee of $300 is awarded plaintiff. As to legal interest and in all other respects the judgment is affirmed. All costs of this appeal are assessed against the defendant.

Reversed in part, amended, affirmed in part.

SAVOY, J., concurs with written reasons.

TATE, J., concurs in part and dissents in part with written reasons.

SAVOY, Judge

(concurring).

I concur in the majority opinion rendered in the instant case for the reason that the preponderance of the medical testimony is to the effect that the plaintiff had fully recovered from his injury on September 27, 1960.

Dr. Peter A. Viglia, a general practitioner, testified on behalf of plaintiff. He was the first one to examine plaintiff after his accident. He found plaintiff had a muscle strain of the upper lumbar area. He treated plaintiff for some time and then referred him to Dr. George P. Schneider, a specialist in orthopedics, for examination and evaluation. After sending plaintiff to Dr. Schneider, Dr. Viglia was in constant consultation with Dr. Schneider and at the trial he adopted Dr. Schneider’s opinion as to the disability of plaintiff as his own.

Dr. Schneider, an orthopedic surgeon called as a witness for plaintiff, testified that upon his initial examination he found plaintiff to be suffering from a mild back injury. Upon re-examination, the doctor was of the opinion that plaintiff was suffering from a slight left lateral compression fracture at L-2.

Two well-qualified radiologists were called as witnesses by defendant, namely, Dr. Frank E. Marek and Dr. Donald E. Robinson. They testified that after having made x-rays of plaintiff’s back, they were of the positive opinion that plaintiff did not suffer a compression fracture at L-2.

Drs. Jerome W. Ambrister and Charles V. Hatchette, specialists in orthopedics, examined plaintiff and both were of the opinion that plaintiff could return to his former employment.

Even Dr. Schneider admitted that all plaintiff needed was to do some work in order to tone his back muscles. On September 12, 1960, he rendered a report of an examination made of plaintiff on August 5, 1960, in which he found that the only remaining symptoms of the injury was tightness in the erector spinae muscle masses of the back and the hamstring musculature in both legs and marked discomfort on direct palpation over the injured lumbar vertebra. In said report Dr. Schneider recommended “that the procedure of choice was the resumption of his usual activities” which should rehabilitate the said muscles within six to eight weeks after his said examination of August 5, 1960.

For the reasons assigned above, I concur in the results reached in the majority opinion.

TATE, Judge

(concurring in part, dissenting in part).

I concur insofar as the majority found that the employee was disabled by reason of accident while employed by the defendant and insofar as penalties were assessed for the arbitrary non-payment of medical expenses. But I must respectfully dissent from the majority’s refusal to award compensation for disability beyond September 27, 1960.

The majority has thus limited weekly compensation because on August 5, 1960, the attending orthopedist estimated that, with a return to work, the employee’s disability should be ended eight weeks later. As a matter of fact, however, the employee was still disabled at the time of the trial on February 14, 1961, some six months after this medical guess as to the duration of future disability; and this same attending physician still found the plaintiff to be disabled on the next two examinations prior to trial, on December 8, 1960 and February 9, 1961. (This physician specifically stated that the manifestation of disability then exhibited by the plaintiff on the eve of the trial, dated back to the initial trauma which caused the fracture, accepting the plaintiff’s subsequent complaints of pain, which were corroborated by the lay witnesses. Tr. 289).

The trial court, in my opinion, correctly found: “The evidence establishes that his disability, as of the date of trial, is total and causally connected with the accidents in the employ of defendant, with an indefinite period of recovery. Some of the medical experts expressed the opinion that Mr. McGee could return to heavy manual labor, but not without some pain and discomfort attributable to the accident in defendant’s employ. The jurisprudence establishes that a worker will not be required to resume his former employment, if performance of duties in that employment would cause him pain and discomfort of any substantial nature.”

So dissenting, I fully concede the forcefulness of the views expressed by the fair-minded majority opinion and that there is much seeming equity in such result. Nevertheless, I do not think that compensation should be denied an employee, admittedly disabled at the time of trial from the performance of the hard work in which injured at the time of the accident, simply because of a speculation that the employee might have recovered his ability to perform hard work in six or eight weeks if he had returned to it and gradually increased his exertions.

This result is contrary to the established jurisprudence. As a precedent, it may accomplish much mischief,, disrupting the present practice of employers continuing to pay compensation to injured employees so long as disabled, rather than terminating compensation to disabled employees until after the court decides whether or not the disability might have been terminated earlier.

(It should be noted that the employer is not substantially prejudiced by a judgment awarding an injured employee compensation for total disability, because the employer may always reopen the judgment, when— and if — the employee’s disability is ended.)

I.

In the first place, despite the theoretical medical opinion, in fact the employee continued to perform light janitorial work and has been engaged in it from the accident up until the trial of February 14, 1961. If work therapy were actually so beneficial, I am unable to see why the constant motion and the performance of the lighter tasks should not have resulted in an improvement of the employee’s condition, when in fact it did not do so.

As Judge (later Justice) Odom long ago commented under similar circumstances, when refusing to limit compensation to a specified period for an employee actually disabled at the time of trial: “The court must not speculate as to how long a person will be disabled. The greatest experts in the land cannot tell how long it will take a wound to heal. They can no more do that than a surgeon can tell whether an operation will prove fatal or be a success. Any opinion which might be given by a physician as to how long a patient will be disabled from a certain wound or condition of a member of the body would necessarily be speculative. An expert might be able to guess more accurately than a layman, but his opinion would be a guess after all.” O’Donnell v. Fortuna Oil Co., 2 Cir.,, 2 La.App. 462 (1925), 464.

This principle I thought, previously to-the recent decision of another circuit relied upon by the majority, had become a settled rule in workmen’s compensation proceedings. Contemporaneously with the decision relied upon, in fact, the First Circuit had rejected contentions similar to those here accepted by the present majority, when in Cummings v. Albert, La.App., 86 So.2d 727, 729 (certiorari denied), the court stated:

“As to defendants’ related defense based on the testimony of Dr. Mosely, that if Cummings tried light work,, his working ability should or might return despite his present residual disability, we stated in Watson v. Floyd Electric Company, Inc., La.App. 1 Cir., 75 So.2d 361, at page 365 (writ denied), rejecting similar contention:
“ ‘The question to be determined is whether or not the plaintiff, at the time he refused to accept light work or the employer refused to give him light work, was able to do and perform the type of work that he was doing at the time of the alleged accident.’
“Or as stated by our brothers of the Second Circuit in Brown v. International Paper Co., La.App., 58 So.2d 557, at page 560:
“ ‘Defendant relies largely on the medical testimony of Doctors Hamilton and Rawls, both of whom were of the opinion that plaintiff's condition was such that if he did engage in light work, it would restore full function of his arm within six weeks, and at most, twelve weeks. But the test is not whether a plaintiff in a compensation case is able to do light work, but is whether or not he is able to do the same work he was doing when injured, or similar work, and we are not to speculate on the time it would require for his recovery or in fact whether he would recover at all, especially in the face of the conflicting medical testimony.’ ”

If a disabled employee’s right to compensation is under the present circumstances limited to the physician’s estimate of the time it would take for the employee to recover if he returned to work, the employee is in fact faced with an impossible situation. Leaving aside the reluctance of many employers to hire any man who has had back trouble in the past even when he was completely recovered from it, we must recognize the practical difficulty in the way of the employee if he seeks to carry out the physician’s advice.

Here, for instance, the injured employee must ask for a job in these terms:

“Dear Mr. Would-Be Employer:
“I have recently had a rather serious back injury, but my doctor tells me that, although I am still disabled and will suffer pain when I work, I will nevertheless recover my former ability to perform hard duties in six to eight weeks if I go back to work.
“I am therefore applying for a job with you, not only to provide food for my family, but also because this work over a period of six to eight weeks will very probably (my doctor says) result in my recovery. Of course, during the first weeks you must give me only the lighter duties, gradually increasing the range of my work until I finally am able to perform my full work without pain.
“I will appreciate your favorable consideration,
“Yours respectfully,
“A. Claimant.”

If he replied at all, of course, the employer would probably reject the application and reply that he is in business to make a profit and not to provide medical therapy. (And it is to be wondered why some sort of supervised physical therapy could not accomplish the same results as the work-therapy, if indeed the employee’s recovery of his ability to work could be accomplished so readily, and why the employer did not tender same.)

II.

Aside from its application of the incorrect legal standards and its conflict with the opinions of the First and Second Circuits, I think the majority opinion has not realistically viewed the employee’s complaints of continued pain with relation to his work record prior and subsequent to the accident.

Following recovery from the effects of his 1947 accident, the claimant was able to return to his usual occupation of operating engineer in July of 1957. At the time of the accident he was paid $3.30 per hour, with weekly earnings in excess of $130.00.

In addition, one year before the present accident, the claimant secured part-time evening employment as a janitor. (The earnings-he thus received were in addition to his substantial wages as an operating engineer and welder.) Following the accident, the claimant was able to perform only his janitorial duties, and, according to his co-workers, only the lighter ones as compared to his ability prior to the industrial accident, needing help after the accident with lifting of furniture and other heavier duties.

It seems to me that, unmistakably, we have here an individual who, before the accident, was ambitious enough to secure part-time work additional-to his highly paid job as an operating engineer. It he were not disabled, it is almost inconceivable to me that he would voluntarily renounce high earnings of over $130.00 per week, just for the disputed right to receive weekly compensation of $35.00.

I may add that the suggestion that the preponderance of the medical evidence does not support disability is, it seems to me, contrary to the established jurisprudence, which is to the effect that disability is not determined by the number of medical opinions, but rather by the opinions of those doctors who are especially well qualified to ascertain the truth of the question, allowing weight to lay testimony in the event of conflicting medical evidence.

Here both attending physicians were firmly of the opinion that the plaintiff had sustained a compression fracture in his injury of December, 1959; they had opportunity to see the plaintiff many times, to ascertain the consistency of his complaints over an extended period of time, and to determine whether these complaints, in connection with x-ray any other obj ective findings, supported their medical diagnoses. These medical opinions of continued disability are corroborated by the uncontradict-ed lay testimony.

To me, it seems to be naive to say that a couple' of radiologists who viewed x-ray pictures could just by them determine that there was no compression fracture, when other qualified physicians examining x-rays of the back at the time of and after the accident, reached the opposite conclusion, taking into account the plaintiff’s history and complaints immediately after the injury and following.

After all, x-ray pictures are just a tool to help in medical diagnosis; they should not be substituted for the fully considered and carefully weighed opinion of an attending orthopedist, when the latter has, in addition to the blurred markings on the x-rays, been able to consider the consistent complaints and other symptoms of a living, breathing human being over an extended period of time.

Likewise, the opinion of a medical expert who examined the claimant only once or twice, and then only in connection with the litigation, is obviously entitled to far less weight than the considered opinion of the attending physicians who saw and treated the claimant many times over an extended period.

III.

It is also to be noted that because of the work-caused condition the employee actually incurred substantial medical .expenses, including for a brace, which the majority disallows because incurred after the cut-off date of the theoretical end of the disability (as if the injured employee had been able to secure employment and as if the return to work had resulted in the end to the employee’s disability within the estimated time). While the majority’s disallowance of further medical expenses beyond the cut-off date is certainly logical, accepting its initial premise that the compensation should be limited to eight weeks beyond the date of the physician’s estimate, nevertheless in my opinion the Louisiana compensation act requires that the employee be furnished such actually incurred and reasonable medical expenses undeniably resulting from the injuries received at work, irrespective of whether the employee is still entitled to disability compensation. LSA-R.S. 23 :- 1031, 1203.

In summary, therefore, while fully recognizing that there is much merit in the majority’s views, I am unable to concur in them and therefore must respectfully dissent.

On Application for Rehearing.

En Banc. Rehearing denied.

TATE, J., dissents.  