Crader v. Casualty Reciprocal ExchangeCrader v. Casualty Reciprocal Exchange
Brame, Bergstedt & Brame, Joseph A. Brame, Lake Charles, for defendant-appellee.
Before CULPEPPER, SWIFT and LABORDE, JJ.
SWIFT, Judge.
In this workmen‘s compensation suit Inez Crader is seeking benefits for total and permanent disability from Casualty Reciprocal Exchange, her employer‘s insurer. Following trial on the merits judgment was rendered in favor of plaintiff awarding her weekly compensаtion from June 11 through October 9, 1980, together with unpaid medical bills and charges. Her claims for penalties and attorney‘s fee were denied. The plaintiff has perfected this appeal.1 We affirm.
The plaintiff, Inez Crader, is a 38 year old short order cook who sustained a fall at Emery‘s Restaurant in Welsh on February 10, 1979. Plaintiff alleges that she injured her lower back when she fell while carrying a box of gallon jars of salad dressing. Weekly benefits were paid beginning February 15, 1979, through June 11, 1980, at a rate of $77.00 per week. The total amоunt paid was $5,313.00. Defendant
The plaintiff continued to work and fell again on February 14, 1979. She was then treated by her family physician, Dr. Anglerill, who subsequently referrеd her to Dr. Clark Gunderson, an orthopedic surgeon in Lake Charles. Dr. Gunderson saw her on nine occasions thereafter. She was also seen by a Dr. Akins.2 At the request of the defendant, Ms. Crader was seen by Dr. Norman Morin, an orthopedic surgeon, in May and Octobеr of 1980.
The assessments of the plaintiff‘s physical condition by Drs. Gunderson and Morin varied greatly. On his original examination of Ms. Crader in Marсh of 1979 Dr. Gunderson concluded that she had a lumbar straining type injury. After subsequent visits during the period from April of 1979 through July of 1980, his opinion was the samе and he thought the plaintiff would probably still have pain lifting, bending and standing for long periods. He did not know if it would be disabling, saying that this would depend on the person. The doctor opined that the plaintiff would have a five per cent impairment, but added that a lumbar strаining injury was not necessarily permanent.
Several tests were made on Dr. Gunderson‘s orders. One was a neurological examination by a Dr. Shamiel, which included an electromyogram of plaintiff‘s right leg. Another was a myelogram performed by a Dr. Johnson. Thesе produced negative findings.
Dr. Norman Morin saw the plaintiff twice following the negative diagnostic studies by Drs. Shamiel and Johnson. On eaсh occasion this doctor felt that the plaintiff had completely recovered from her prior injury and that she was eithеr exaggerating symptoms caused by excessive weight or was a malingerer.
The plaintiff called two relatives and a friend tо support her claim of disabling pain. However, she did not present the testimony of either Dr. Anglerill or Dr. Akins. There was a conflict in thе testimony of plaintiff and her employer as to when the accident was reported and prior problems with the plaintiff‘s knee.
The principal issue on appeal is whether the denial by the trial court of an award to plaintiff either for pеrmanent total or partial disability was manifestly erroneous.
In his written reasons for judgment the trial judge stated that he was unimpressed by Dr. Gunderson‘s treatment of plaintiff. Obviously, he was not impressed by his opinion in regard to disability and with plaintiff‘s testimony in this respect.
The standard of review in such a case was expressed by this court in Guidry v. Davis, 382 So.2d 250 (La.App. 3 Cir. 1980), as follows:
“It is also well settled that the jury or trial judge may, and should, assess the credibility of experts who testify at the trial, as well as that of lay witnesses, to determine the most credible and realistic evidence and the fact finder‘s determination of the credibility of those witnesses will not be disturbed unless found to be clearly erroneous. Green v. State, Southwest Louisiana Charity Hosp.; 309 So.2d 706 (La.App. 3 Cir. 1975), Monette v. Aetna Cas. & Sur. Co., 352 So.2d 423 (La.App. 3 Cir. 1977). After weighing and evaluating all of the medical evidence, and in most cases the lay testimony, relating to the injuries sustained by a plaintiff, the jury or trial judge may accept or reject the opinion expressed by any medical expert, depending upon how he is impressed with the qualifications and the testimony of that expert. Touchet v. Fidelity and Casualty Co. of New York, 264 So.2d 752 (La.App. 3 Cir. 1972).”
In the instant case the trial court was definitely more impressed with the qualifications and testimony of Dr. Morin and chose to accept his expert medical opinion rather than that opinion of Dr. Gunderson. Except for muscle spasms noted on earlier examinations, Dr. Gunderson‘s testimony
Presumably, the testimony of Drs. Anglerill and Akins would have been adverse to the plaintiff‘s position.
From our review of the record we cannot say that the trial court was clearly wrong.
The plаintiff‘s brief contains no mention of her claim for penalties and an attorney‘s fee, so we assume such claim has been abandoned. In any event, we do not find that the termination of compensation benefits on the basis of Dr. Morin‘s medical report was arbitrary, capricious or without probable cause.
For the foregoing reasons, the peremptory excеptions filed in this court by appellee are overruled and the judgment of the trial court is affirmed. All costs of this appeаl are assessed against the plaintiff-appellant.
AFFIRMED.