
    Mason L. LINDSEY, Plaintiff and Appellee, v. HARTFORD ACCIDENT & INDEMNITY COMPANY and Cities Service Oil Company, Defendants and Appellants.
    No. 1425.
    Court of Appeal of Louisiana. Third Circuit.
    June 2, 1965.
    Rehearing Denied June 24, 1965.
    Jones, Kimball, Harper, Tete & Wether-ill, by William R. Tete, Lake Charles, for defendants-appellants.
    Nathan A. Cormie, Lake Charles, for plaintiff-appellee.
    
      Before FRUGE, HOOD and CULPEP-PER, JJ.
   CULPEPPER, Judge.

Defendants appeal from a judgment on the merits awarding plaintiff workmen’s compensation benefits for total and permanent disability.

The issues are (1) the occurrence of an accident or injury, (2) any disability caused by the alleged accidents and (3) defendant’s special plea of prescription.

The general facts show that plaintiff was employed as an operator of a regenerative caustic unit in the oil refinery of defendant, Cities Service Oil Company. He watched the gauges, climbed towers, turned valves with wrenches, and, in emergencies, had to perform these duties quickly and under strenuous conditions. We think the evidence clearly shows plaintiff’s duties involved strenuous physical labor.

The first issue is whether any accident is proved. Our jurisprudence is settled that plaintiff bears the burden of proving an accident by the preponderance of evidence. Guillory v. New Amsterdam Casualty Co., 244 La. 225, 152 So.2d 1 (1963). Also, the testimony of plaintiff alone may be sufficient to prove an accident, provided there is nothing to discredit him and provided his statements are supported by the surrounding circumstances. Brister v. Great American Insurance Co., et al., La.App., 171 So.2d 769 (3rd Cir.1965) and the cases cited therein.

Plaintiff contends he sustained his initial back injury in January of 1962 when, during an emergency created by the bursting of a frozen water line, he “shimmied” up a pipe to close a valve and fell 12 or 15 feet to the floor “flat footed”. Plaintiff testified the immediate pain in his back was such that he had to lay down for a few minutes. However, no other witness saw the accident, plaintiff did not report the incident, as required by company rules, and he did not seek medical attention or lose any time from work.

The next accident alleged in plaintiff’s petition was in March of 1962, he injured his back again while pulling on a wrench. During the trial plaintiff gave no details of this alleged accident. However, the records at the plant first-aid station show that on March 19, 1962 he reported there for “pain in back” and a drug was prescribed. The record also shows that from March 9, 1962 to March 15, 1962, plaintiff was under the care of Dr. H. S. Snatic for a condition diagnosed as “prostatic low back pain”. Also, plaintiff drew “sick benefits” from his employer for the period, March 12, 1962 through March 18, 1962. Here again, there were no witnesses to the accident and no report' was made to the employer. Also noteworthy is Dr. George P. Schneider’s statement that on December 6, 1962 plaintiff gave him a history of having strained his back while at work several times, including an episode in March of 1962.

The next alleged accident was in October of 1962. Plaintiff testified he strained his back “real bad closing a valve off overhead, * * * ” Again there were no witnesses to the accident, plaintiff made no report of it, and lost no time from work. However, the plant first-aid station record shows that on October 13, 1962 and again on November 1, 1962 plaintiff went there for “pain in back” and a drug was prescribed. Also, the history taken by Dr. Schneider on December 6, 1962 shows plaintiff “stated his last episode of injury occurred while turning a valve in October, 1962. * * * ”

As noted above, plaintiff’s first visit to Dr. Schneider, an orthopedic specialist, was on December 6, 1962. Dr. Schneider’s report of this initial examination merits partial quotation:

“The above patient was initially seen by me on December 6, 1962. At that time he stated that about March, 1962, he strained his back while at work and had had repeated episodes of back pain and catching and re-injury since that time. He stated his last episode of injury occurred while turning a valve in October, 1962 and he complained of back pain going into both hips and thighs as far as his knees. He stated his discomfort had been so severe at times he would be unable to straighten up after periods of working in a bent over position and at other times would be unable to bend his trunk without low back pain. He stated he had been on muscle relaxents at intervals, apparently prescribed by his company physician.
* * * * * *
“OPINION: It is my feeling that this patient was suffering from a progressive degenerative process at the level of the Sth lumbar intervertebral disc very possibly as a result of multiple episodes of injury to his lower back. He was accordingly placed on a routine of conservative treatment including the use of a lumbo-sacral support and medication.”

Plaintiff remained under Dr. Schneider’s treatment and went on sick leave from December 6, 1962 to about June 1, 1963, drawing 12 weeks full pay and thereafter one-half pay. Then, on Dr. Schneider’s recommendation, plaintiff returned to work, with the reservation that he perform no strenuous labor. On June S, 1963, plaintiff was examined by Dr. J. W. Crookshank, the plant physician and medical director. His diagnosis was essentially the same as that of Dr. Schneider, i. e., a narrowing of the intervertebral space between L-5 and S-l, caused either by a progressive degeneration or a herniation of the disc.

Plaintiff contined to work until a few days after the last alleged accident on September 12, 1963, when he tripped over a wire and fell against a large floor fan. This accident was seen by a fellow employee, Dudley Carver, who testified that plaintiff “ran into” the fan and then held his back and appeared to be in pain. Following this accident plaintiff worked a day or two and then was off a few days and finally went back to Dr. Schneider on September 19, 1963. A report by Dr. Schneider, dated October 26, 1963, states the following :

“It is my feeling after prolonged follow-up and repeated examination of this patient that although he is able to carry out a limited work regimen to the extent that there may be almost complete remission of his manifestations, both subjectively and clinically, I feel that he will be unable to continue at any job requiring any strenuous activity without exacerbation of his problem arising. At times his low back flare-ups have been spontaneous in origin and I feel that this plus repeated low grade injuries indicates the inability of the patient to perform manual labor. I feel, as noted, that the ultimate solution to his problem is spinal fusion, but prior to this I feel that lumbo-sacral myelography should be performed to preclude any underlying disc protrusion, which if it presents, should also be treated at the time fusion is carried out.”

Plaintiff did not return to work after September 19, 1963 and his employment was terminated.

Dr. Crookshank, the plant physician and medical director, examined plaintiff on October 16, 1963 and again found the narrowed intervertebral space at L-5. But Dr. Crookshank was of the opinion plaintiff could return to work, though admittedly with pain and discomfort and the possibility of further episodes of injury.

On November 14, 1963 plaintiff was examined by Dr. Charles V. Hatchette, an orthopedic specialist, whose findings and diagnosis were essentially the same as those of Dr. Schneider, and who was of the opinion that plaintiff was disabled to perform any strenuous labor.

In support of its contention plaintiff has not proved an accident, defendant points out there were no witnesses, except plaintiff himself, to the alleged accidents of January, March and October of 1962; that plaintiff did not report any of these accidents to his employer, as required by plant rules well known to the plaintiff; that he didn’t lose any time from work immediately following these accidents, except a few days in March of 1962.

Defendant also argues strenuously that plaintiff fabricated the accidents in 1962 and "staged" the accident on September 12, 1963 as part of a scheme to be absent from work and draw almost full pay in sick benefits, while at the same time earning an equal amount working as an insurance adjuster. Defendant argues plaintiff was “building up" a back case in order to claim workmen’s compensation if the employer discovered he was doing other work while on sick leave, in violation of company rules.

Although these circumstances certainly tend to discredit plaintiff, there are others strongly corroborating him. Most important is the expert medical testimony. The history given Dr. Schneider at an unsus-picious time in December, 1962 describes at least the accidents in March and October, 1962. The later history in October, 1963 describes the accident of September 12, 1963. The very nature of plaintiff’s back trouble, i. e., a degenerative condition probably caused by multiple injuries, strongly supports the accidents. Of course, the accident of September 12, 1963 was verified by an eye witness. It was clearly proved. Also, there is no evidence of any low back trouble before January of 1962.

Considering all of the circumstances, including the finding of facts by the trial judge, we think the accidents were proved.

Defendants’ next argument is that plaintiff’s degenerative back condition antedated the alleged accidents and was not caused or worsened by them. Defendants suggest that the trouble may have started with an automobile accident in which plaintiff was involved in 1956 or another in which he was involved in 1957. The latter injury led to litigation which plaintiff compromised for $3,250. However, there is no testimony whatever that plaintiff injured his back in the 1956 accident. As to the 1957 accident, the testimony of plaintiff is definitely corroborated by Dr. Schneider that plaintiff suffered only a “whiplash" injury to the neck and shoulders and did not injure his low back. Defendant’s attempt to show plaintiff’s present condition originated in these earlier automobile accidents is without merit.

There is no evidence that plaintiff suffered any back trouble before the first on the job accident in January of 1962. The medical testimony clearly shows that these work connected episodes of injury caused or at least worsened plaintiff’s degenerative back condition, until it finally developed into total disability. It is our conclusion plaintiff’s disability was caused or at least aggravated by the accidents.

Defendant’s special plea of prescription'is based on LSA-R.S. 23:1291 requiring that the employee give notice of the injury to the employer within six months after the date thereof. Of course, this argument pertains only to the accidents of January, March and October of 1962, because plaintiff did give notice to defendant within six months after the injury on September 12, 1963. In any event, the landmark case of Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218 (1952) holds that when a claimant sustains successive on the job injuries, but continues to work, prescription does not - begin to run until the injuries manifest themselves into a condition of total disability. This answers defendant’s plea of prescription.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants appellants.

Affirmed.

HOOD, Judge

(dissenting).

I agree with the majority that plaintiff has a progressive degenerative back condition which periodically becomes symptomatic. I agree, however, that this condition was caused by a work-connected accident or that it has been aggravated by any such accident.

As pointed out by the majority, plaintiff either alleges or he testified that he injured his back on three occasions during the year 1962, in January, in March and in October. In his petition he alleges only the first two of these injuries, there being no mention at all in his pleadings of the October accident. According to the pleadings, the January accident was relatively insignificant, but the March accident, which occurred while he was pulling on a wrench, was extremely serious, resulting in injuries to his back which allegedly made it necessary for him to miss work for seven months. He confirmed this in giving a history of the accident to Dr. Schneider, his treating physician, and to Dr. Hatchette, another examining orthopedist, by informing both of those physicians that the initial onset of his back trouble was in March, 1962, when he says he sustained a straining injury to his back. He made no mention at all of the January accident to either of these doctors.

I have been unable to find any evidence at all in the record tending to show that plaintiff was involved in any kind of an accident in March. He did not even mention such an accident in his testimony. The record does show, without contradiction, that he was treated by Dr. H. S. Snatic for “prostatitic low back pain” from March 9 to March IS, 1962, but there is no suggestion by anyone that this was brought about by a work-connected accident. It is true, as noted in the majority opinion, that he drew sick benefits from March 12 to March 18, 1962, and that he reported to the first aid station on March 19, 1962, for “pain in tack,” but plaintiff himself explains that, “I came down in my back real bad” with prostate trouble, and that he stayed oft work about ten days for treatment of that condition, one week of which was vacation time. The evidence also shows that, except for the three work days which he took off because of prostate trouble, in March, plaintiff worked regularly during the entire year 1962, up to December 6 of that year. He was not required to miss work for seven months in 1962 because of a back injury as he alleges. I cannot agree with the majority in its apparent holding that plaintiff sustained any kind of injury to his back in March.

At the trial, and contrary to the information which plaintiff had given to the examining and treating physicians, he testified that the onset of his back trouble occurred in January, 1962, instead of in March, and as the result of an entirely different type of accident than that which he had related to the doctors. He stated that in January he went to the aid of other employees in an emergency, 'and in an attempt to prevent them from being injured he slipped and then dropped twelve or fifteen feet to the floor, landing on his feet. As pointed out by the majority, however, there were no witnesses to this accident, not even the employees whom he says he saved from injury, no accident or injury was reported, he lost no time from work, there apparently was no interruption in the performance of his duties on that or any of the following days, and he obtained no first aid treatment at all in January of that year. In my opinion, plaintiff has completely failed to show that an accident occurred in January, 1962, or that he sustained any type of back injury at that time.

Plaintiff also testified that he received another straining injury in October, 1962. No such accident or injury was alleged in his petition, no report of such an accident was made, no witnesses saw it occur, he missed no work as a result of that -alleged accident, and he did not inform Dr. Hatch-ette of any such injury at the time the latter examined him. The majority observes that plaintiff received first aid on October 13 and on November 1, 1962, for “pain in back.” I notice that exactly the same drug was prescribed on those occasions as had been prescribed for him when he had had prostate trouble. Plaintiff mentions the October accident only casually in his testimony, and he makes no mention of when it occurred or whether he received any first aid treatment. I agree that the showing that he did report to the first aid station for “pain in back” constitutes some support for his statement that he injured his back during that month, but in view of all the facts, and since he made no mention of treatment or first aid in connection with that asserted injury, I feel that plaintiff has failed to establish that he sustained an injury to his back at that time

Although plaintiff now contends that he sustained serious back injuries in 1962, he gave as his reasons for not reporting any of such injuries, “I didn’t know I had hurt myself like that until Dr. Schneider told me what was wrong with me,” on December 6, 1962.

After Dr. Schneider advised plaintiff to discontinue working, on December 6, 1962, it is apparent that plaintiff still did not feel that his back condition was in any way attributable to an accidental injury, because he reported no such injury. Instead, he obtained a sick leave, and he received sick benefits from December 6, 1962, until the first part of June, 1963. According to our figures, during that six month period, he received sick benefits amounting to the sum of $2,609.64.

While plaintiff was on sick leave, Dr. Crookshank, Medical Director for plaintiff’s employer, questioned his right to continue to receive sick benefits on the ground that plaintiff was not following his own doctor’s instructions. After some negotiations with plaintiff, the latter returned to work for his employer on or about June 8, 1963. He testified that at that time he was not disabled but was able to resume his full employment. In addition to his own statement to that effect, the fact that plaintiff was not disabled in June, 1963, is established by the testimony of Dr. Schneider and by that of Dr. Crookshank, both of whom examined plaintiff immediately before he returned to his employment. If plaintiff had had any disability relating to his employment prior thereto, it is apparent that he had fully recovered by June 8, 1963.

Plaintiff testified that after he returned to work in June, 1963, he performed “exactly the same job,” and that he got along all right on that job during the entire period from about June 8 until September 12, 1963, when he claims that he sustained a disabling accident. The record shows that plaintiff did not report any injury or disabling back condition during that thirteen week period of employment.

Contrary to plaintiff’s testimony, Dr. Schneider testified that he examined plaintiff on August 1, 1963, and he determined at that time that plaintiff “had an acute recurrence of his low back pain with radiation into the right lower extremity as far as the calf,” which condition the doctor described as a “rather severe episode or recurrence.” He states that this recurrence was a “spontaneous thing,” and that “there was no specific mention of any trauma which precipitated it." Dr. Schneider further testified that when he next examined plaintiff, on September 19, 1963 (one week after the alleged disabling accident occurred), “his objective findings were not as acute as they were in August.” According to Dr. Schneider’s testimony, therefore, the condition of plaintiff’s back was better immediately after September 12 than it was shortly before that time, indicating to me that plaintiff had been steadily recovering from the acute condition found on August 1, 1963, (which condition was not in any way related to his employment) and that he continued to improve on and immediately after September 12, in spite of the alleged accident which occurred on that date.

While I do not question that plaintiff bumped into the housing of a fan on September 12, 1963, as he says he did, it appears to me that that accident was of a most insignificant nature, and, aside from the fact that no injury has been shown, it seems highly improbable that it could have caused any injury. Plaintiff did not fall, he did not strike his back, he missed no time from work, he continued with his work or other activities without interruption, and he did not bother to see a doctor until he was actually pressed into doing so by his employer’s attempts to verify his physical condition and employment status. Also, plaintiff apparently did not attach much significance to the September 12 incident at the time he was examined by Dr. Hatch-ette two months later, because he did not even mention the accident which he now says occurred on that date in the history which he gave that doctor.

With reference to- the employer’s attempts to verify plaintiff’s physical condition and employment status, I note that a representative of the employer called at plaintiff’s home on September 17 and on September 18, 1963, in an effort to see him, but was unsuccessful on both occasions. Plaintiff went to Dr. Schneider the next day, September 19. The employer wrote to plaintiff on September 26, advising him, among other things, that they had determined that he was working for another firm, that that disqualified him from employment by the defendant company, and that unless he could produce an acceptable reason his employment with the company would be terminated. It was only after that letter was received by plaintiff that he, for the first time, informed his employer that he had gotten hurt on the job on September 12, 1963.

Plaintiff concedes that during the month of March, 1963, while he was on sick leave, he strained and suffered pain in his back when he lifted his little girl at a rodeo. It seems to me that injury, together with the non-work-connected episode or flareup which occurred in July or August, 1963, are the only “accidents” or “incidents” which have been proved and which in any way could have caused plaintiff’s degenerative back condition to become symptomatic. No accident or incident of any kind has been shown to have occurred during the course of his employment which can be related to his present back complaints.

There are two other circumstances which have influenced me to some extent in this case. One is that since 1959 plaintiff has had other employment while working for Cities Service Oil Company, that being contrary to the employer’s policy. He first had his own insurance agency, and then since 1960 or 1961 he has been employed as an insurance adjuster, in addition to working for Cities Service. His earnings at this outside employment have been substantial, amounting to about $3,000.00 in 1962, and between eight and nine thousand dollars in 1964. In view of the relatively large income he received from this outside employment, I think there is a logical basis for defendants’ argument that plaintiff had a motive in obtaining as many sick leaves as possible so he could devote his full time to this rather lucrative other work while drawing sick benefits from his employer at the same time. Also, being an insurance adjuster, he obviously was familiar with claims for workmen’s compensation benefits, and he knew that injuries sustained during the course of employment should be reported promptly. The other circumstance which appears to me to be of some significance is that when plaintiff returned to work in June, 1963, it was necessary that he work a minimum of thirteen weeks before he would again become eligible for full sick benefits. He worked exactly that minimum period of time, not reporting a back episode which occurred during that period, and then he applied for sick benefits again immediately after becoming eligible for the full amount of such benefits. 1

Since I feel that plaintiff has failed to show that the present condition of his back is in any way related to his employment, I respectfully dissent from the majority opinion.

On Application for Rehearing.

En Banc. Rehearing denied.

HOOD, J., is of the opinion that a rehearing should be granted.  