text:
    Flint H. GARRISON, Individually and on Behalf of his Minor Children, Gary, Evelyn, Rita and Curtis Garrison; and Ursula Garrison, wife of Flint H. Garrison, Plaintiffs-Appellees v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS et al., Defendants-Appellants-Appellees.
    No. 14573.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.

      Johnson, Johnson & Johnson by Don H. Johnson, Monroe, for defendant-appellant, State of Louisiana through the Department of Highways.
    Thomas V. Gardner, Jr., Asst. City Atty., for defendant-appellee, City of Monroe.
    Brown, Wicker, Lee & Barnes by Robert A. Lee, Monroe, for plaintiffs-appellees.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

This is one of three suits, arising out of the same accident, consolidated for trial purposes. Our reasons for judgment in all three suits will be set forth herein. However, a separate judgment will be rendered in each of the other consolidated suits.

After trial of the consolidated suits for damages arising out of an intersectional collision between two vehicles, the district judge found that the sole legal cause of the accident was the negligence of the State Department of Highways which had responsibility for the maintenance of a malfunctioning traffic light. The State appealed these judgments, contending that (1) the accident was caused by the negligence of one of the involved drivers; (2) the City of Monroe, another defendant, had responsibility for maintaining the particular malfunctioning traffic light and also for safeguarding the intersection when the signal was malfunctioning; and (3) the damages awarded were excessive.

The accident occurred on Sunday morning, March 7, 1976, at about 9:00 o’clock at the intersection of U.S. Highway 80 (a mul-tilane highway running generally east and west) and U.S. Highway 165 by-pass (a multilane thoroughfare running generally north and south) in Monroe. Traffic at the intersection was controlled by semaphore signals facing drivers in their respective lanes, with five separate fixtures positioned at points over the intersection.

Just prior to the accident Sue Combs, accompanied by her small daughter, was approaching the intersection from the south, driving north on Highway 165 bypass. At the same time Ursula Garrison, with four of her children as passengers, was nearing the intersection from the east, driving west on Highway 80. Mrs. Combs testified that, since the light on the traffic signal facing her was green, she proceeded into the intersection and had crossed three of the four traffic lanes when her car was struck on the right side by the front of the Garrison automobile. On the other hand, Mrs. Garrison claimed that she was also facing a green light on the signal governing her right outside traffic lane as she entered the intersection.

As a result of this accident, suits for damages were filed on behalf of the owners and occupants of the Combs vehicle and the Garrison automobile against the State of Louisiana, through the Department of Highways (“State”) and the City of Monroe (“City”), alleging that the accident was caused by a malfunctioning traffic light for which both defendants were responsible. State Farm Mutual Automobile Insurance Company, as subrogee for property and medical payments to the Garrisons, sued the State, the City, Sue Combs and her insurer, Heritage Insurance Company of America. The State and the City third-partied each other, contending that the other defendant was responsible for maintaining the traffic signal which was allegedly malfunctioning.

The trial judge made the factual finding that both Mrs. Combs and Mrs. Garrison faced green lights as they entered the intersection; that the traffic signal facing Mrs. Combs was malfunctioning; and that the State had sole responsibility for maintaining this traffic signal and was liable for its malfunctioning.

The issues raised on this appeal will now be discussed separately.

Legal Cause of the Accident

The State concedes that the traffic signal facing Mrs. Combs was malfunctioning but argues that the defect consisted of displaying red and green lights simultaneously; that Mrs. Combs was negligent in proceeding into the intersection when confronting this configuration; and that her negligence was the cause-in-fact of the accident. Cited in support of this position is American Road Ins. Co. v. Montgomery, 354 So.2d 656 (La. App. 1st Cir. 1977) which held a driver negligent for entering an intersection when faced by both a green and a red light.

Our examination of the record leads us to the conclusion that either the traffic signal facing Mrs. Combs or that facing Mrs. Garrison, or both, could have been malfunctioning at the time of the accident.

With respect to the signal on Highway 80 facing Mrs. Garrison’s traffic lane: Just after the accident, Wallace Bostelmann said he was driving west on Highway 80, approaching the intersection from the east, when he noticed that the signal facing him appeared to be functioning in an erratic manner. After the accident Thomas Boyte, Monroe police officer, directed westbound traffic on Highway 80 at the intersection. He noted that, for a sustained period of time, the signal facing this traffic displayed a green and red light simultaneously. Robert Bynum, an electrician for the State Department of Highways, testified that, in response to a complaint, he checked the signal in question on Thursday, March 4, 1976, and found a loose wire in the disconnect hanger which caused the light to blink on and off when the wind was blowing. Bynum stated that he corrected this defect.

With respect to the signal on Highway 165 by-pass facing Mrs. Combs’ traffic lane: Bostelmann testified that he stopped at the accident scene for 15 or 20 minutes and then went around to observe the signal facing northbound traffic on Highway 165 by-pass. He noted that the light was changing sporadically, at times going rapidly from red to green and from green to red without displaying the amber caution light. He never saw the green and red lights displayed simultaneously.

Charles Pitarro stated that he was driving west on Highway 80 between 8 and 8:30 o’clock on the morning of the accident. Faced with a green light, Pitarro started to enter the intersection when a car coming from his left, traveling north on Highway 165 by-pass, drove across the street in front of him as though that vehicle also faced a green light.

Officer Boyte testified that on Saturday, the day before the accident, he observed the signal at the intersection facing northbound traffic on Highway 165 by-pass displaying the green light in an erratic manner. This was reported to the Monroe Police Department radio center.

Richard Baker, a mechanical engineer, stated that on the Friday prior to the accident he was driving north on Highway 165 by-pass and noticed that the traffic signal facing him before entering the intersection appeared to be malfunctioning, since it was changing rapidly from green to red without displaying the amber caution light.

John Cheek, who was working at that time as an electrician for the State Highway Department, testified that he “pulled maintenance” on the control box (which regulated and operated all traffic signals) at this intersection on Thursday, March 4, 1976. Cheek replaced contacts which were burned and also replaced a chipped cam which controlled the green arrow that permitted traffic traveling west on Highway 80 to turn south on Highway 165. Cheek returned the next day, in response to a message that someone had reported a traffic signal malfunction at this intersection, but detected nothing amiss with the lights.

Cheek was also contacted about the malfunction at the time of the accident and visited the scene early that Sunday afternoon. He watched the signals operate for about an hour but saw no apparent malfunction. Then he noticed that the center light facing northbound traffic on Highway 165 by-pass started performing erratically, showing a red display and then a simultaneous green display for about three seconds. Opening the control box, Cheek discovered that lobe # 3 of the cam which controlled the functioning of this particular signal was broken. With replacement of this cam the malfunction appeared to be corrected.

Malcolm Matthews stated that he was traveling in the right lane of Highway 165 by-pass on the morning of the accident and had stopped at the intersection when faced with a red light, preparing to turn right onto Highway 80. He noticed a car pass on his left and enter the intersection, where it collided with another vehicle. Matthews acknowledged that he did not know the color of the light facing Mrs. Combs (driver of the car passing on his left) as she entered the intersection.

The State argues that, although Mrs. Combs was faced with a malfunctioning traffic signal, the lights displayed were simultaneously green and red. Consequently, she should have recognized that this signal was not functioning properly and was negligent for proceeding into the intersection under the circumstances.

Obviously the evidence was conflicting on this factual issue. Matthews witnessed no malfunction of the traffic signal facing him. Cheek described the malfunction upon which the State based its argument. On the other hand, Bostelmann observed the erratic movement between red and green which had been seen on previous days by Officer Boyte and Baker.

After carefully examining the record we cannot state that the trial judge was clearly wrong in his fact finding that both Mrs. Combs and Mrs. Garrison faced green lights as they entered the intersection just before their collision. Further, the State did not prove that either driver, faced with a green light and having no warning of the malfunctioning traffic signal, was negligent by virtue of failing to maintain a general observation of the controlled intersection. See Gaspard v. Stutes, 380 So.2d 201 (La. App. 3rd Cir. 1980); Champagne v. McDonald, 355 So.2d 1335 (La.App. 3rd Cir. 1978).

Since both parties faced a green light, the signal or signals were obviously malfunctioning. Regardless of the mechanical or electrical defect or failure which caused this malfunction (a substantial portion of the record is consumed by speculation on this question), we agree with the trial judge that the sole legal cause of the accident was the malfunctioning traffic signal or signals.

Liability for the Malfunctioning Traffic Signal or Signals

The record shows that the traffic signals and control equipment at this intersection of two state highways, installed in 1969, was the property of the State. There is no question but that on the date of this accident the State was primarily responsible to the public for the proper maintenance of these traffic signals.

A governmental authority that undertakes to control traffic at an intersection has a duty to the motoring public to exercise a high degree of care in maintaining the devices installed for traffic control. Lochbaum v. Bowman, 353 So.2d 379 (La. App. 4th Cir. 1977).

According to a log maintained by the State in Baton Rouge, the maintenance work performed on the traffic signals at this intersection on Thursday, March 4,1976 was the first since 1972. One or more of the signals again malfunctioned on the following Saturday and Sunday, the day of the accident. The precise nature of the malfunction that caused green lights to face both Mrs. Combs and Mrs. Garrison was not determined. It seemed to be corrected by the work performed on Sunday after the accident. Be that as it may, we agree with the apparent conclusion of the trial judge that the State had notice of a malfunction of some nature in the signals at this intersection on Thursday and that there was a continuing malfunction on Sunday which caused this accident. Therefore, the trial judge correctly held that the State was negligent in failing to properly maintain these traffic signals and to correct the malfunction after receiving adequate notice.

However, assuming that the State had no prior notice of the malfunction which was present on the day of the accident, we find that the State was strictly liable for this malfunction under La. Civil Code Art. 2317 and the rationale of Jones v. City of Baton Rouge, 388 So.2d 737 (La. 1980) and Shipp v. City of Alexandria, 395 So.2d 727 (La.1981). As pointed out in the latter case:

“An injured party seeking damages under art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect, that is, that it occasioned an unreasonable risk of injury to another, and that his injury was caused by the defect. Once these elements are proven, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.”

Here the traffic signals were in the custody of the State. At least one of the signals was malfunctioning. This malfunction caused an unreasonable risk of injury to the motoring public who entered this intersection' in the sense that it constituted a “trap”. The injuries sustained in this accident were caused by the described malfunction. The State did not prove that the accident was caused by the fault of the victims, by the fault of a third person, or by an irresistible force. Therefore, the State was strictly liable for the accident and resulting injuries even if it had not been guilty of negligence under La.C.C. Art. 2315.

Whether the City is also liable for the accident under the circumstances of this case, as contended by the State, presents a more troublesome question.

The State argues, first, that if it is liable for damages sustained by the claimants in these cases, it should have judgment on its third party demand against the City under the terms of a maintenance contract executed by those two public bodies.

According to the record, the State and the City entered into a standard maintenance contract, effective for one year beginning July 1,1975, renewed thereafter on an annual basis, covering designated state highways in Monroe. This contract provided in part that “the municipality shall . . . maintain and operate traffic signals ...” Included among the specified signals were those at the intersection in question. Under the contract the City agreed to hold the State harmless from any damage claims arising out of the City’s negligent failure to properly maintain the property covered by the agreement.

Since the contract did not state with specificity precisely what the City was to do in “maintaining” traffic signals, testimony was adduced at the trial pertaining to the understanding of the parties on this point and the actual practice of the parties under this phase of the maintenance agreement. The following colloquy occurred between the City Attorney and Ronald McNeely, Assistant District Engineer for the State Highway Department in the Monroe area, relating to the State’s understanding of the City’s duties under the contract:

“Q. Are you aware — okay. Are you aware of any verbal agreement between the State Highway Department and the City of Monroe that is not expressly written out in the body of the contract?
A. There is a mutual agreement. I am not aware of the exact verbal exchange or where this came about but there is a mutual agreement.
Q. A mutual agreement. What is the mutual agreement in reference to? What does it have reference to?
A. Basically that the City of Monroe will provide electricity for the signals.
Q. Okay. That is one.
A. Will replace bulbs, fuses.
Q. Okay.
A. And do whatever other maintenance that they feel like they can do.
Q. You refer to it as minor maintenance on the lights?
A. Normally it is, yes, sir.”

La. Civil Code Art. 1956 provides:

“When the intent of the parties is doubtful, the construction put upon it (the contract), by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.”

The court in Robertson v. Handy, 354 So.2d 626 (La.App. 1st Cir. 1977) was faced with the problem of determining whether, under a similar maintenance agreement, the State or the City was liable for maintaining the shoulders of a state highway covered by the contract. In resolving this issue, it was pointed out:

“. . . (t)he evidence in the case makes it clear that both the State and the City understood the maintenance contract to require the City to maintain the shoulders. . . . Although the contract may be susceptible of the interpretation urged by the City herein, the conduct of both parties during the existence of the contract makes it clear that they intended that the shoulders be maintained by the City.”

In these cases it was shown that both the State and the City understood the City’s responsibility under the maintenance agreement with reference to traffic signals was limited to the performing of minor repairs, such as replacing bulbs and fuses. Since this was not the nature of the malfunction which occurred on the day of the accident, the City is not liable under the contract for the damages sustained by these claimants.

The State argues, in the alternative, that the City is solidarily liable with it for damages because City employees failed to safeguard the intersection after receiving notice of the malfunction. The record does not support this position. The City dispatch officer testified that he received a report between 8:30 and 9:00 o’clock on the morning of the accident of a traffic signal malfunction at this intersection. An officer was immediately sent to the location but apparently did not arrive before the accident. The dispatcher also promptly notified Van Westbrook, a State employee, of the reported malfunction. Within two minutes after this telephone call the dispatcher received notice of the accident. In his deposition testimony Westbrook corroborated the testimony of the City dispatcher. Therefore, it was not proven that the City was negligent in this respect as charged by the State.

For these reasons, we find that the trial judge correctly absolved the City of liability in these cases.

Quantum

The State argues that the awards made by the trial judge for personal injuries sustained by the parties involved in the inter-sectional collision were excessive.

Only after making the finding that the record supports that the lower court abused its wide discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Discussing appellate review of general damage awards, the court in Reck v. Stevens, 373 So.2d 498 (La.1979) stated:

“. . . (t)he initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive ... or insufficient . . . Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

With these guidelines in mind, we now consider the nature of the injuries sustained by the individuals involved in the intersec-tional collision. Unfortunately, our task is complicated by the paucity of medical evidence in the record pertaining to the claimed injuries.

Curtis Garrison

This youngster, six years of age at the. time of the accident, suffered a fractured jaw and a severe facial laceration. The jaw injury required extensive oral surgery, entailing hospitalization for a week. The large cut across his face left a permanent', disfiguring scar. A clinical psychologist who examined Curtis stated that the child was developing a faulty self image because of his scar and that his neurotic condition (manifested by bedwetting) would probably become worse in the future.

In light of these circumstances, we do not find that the trial judge abused his broad discretion in his general damage award of $40,000 for Curtis’ injuries.

Rita Garrison

This young lady, who was 14 years of age at the time of the accident, sustained bruises on both legs below the knees, with superficial scarring. She also had two chipped front teeth which apparently required no dental repair work.

, In view of the relatively minor nature of these injuries, entailing minimal pain and discomfort, we find that in awarding the sum of $10,000 the trial judge abused his broad discretion.

Awards in reported cases for similar knee injuries have ranged from $200 to $2,000. Procell v. Sentry Insurance Co., 320 So.2d 345 (La.App. 2d Cir. 1975); Hay v. Sears, Roebuck & Co., 224 So.2d 496 (La.App. 3rd Cir. 1969). Similarly damaged teeth have been the basis of awards of between $1500 and $2500. Andrepont v. Naquin, 345 So.2d 1216 (La.App. 1st Cir. 1977); Munson v. Kendall, 290 So.2d 787 (La.App. 1st Cir. 1974); Loyacano v. Continental Ins. Co., 283 So.2d 302 (La.App. 4th Cir. 1973); Runfalo v. Meynard, 242 So.2d 599 (La.App. 4th Cir. 1970).

We conclude that the maximum award that the trial judge could have made for these injuries without abusing his discretion was $4,000.00 and, consequently, reduce this award from $10,000 to $4,000.

Evelyn Garrison

This young lady, 16 years of age at the time of the accident, suffered a cut on the forehead, which left a small permanent scar, and superficial bruises on her legs. She conceded that the facial scar could be concealed by the use of cosmetics. A plastic surgeon testified that the scar could be removed by surgical procedure at an estimated cost of $875.

Since these injuries were not of a serious nature and resulted in little pain and discomfort, we conclude that the trial judge abused his discretion in making an award of $10,000 in general damages.

Cases dealing with bruises of this nature have been previously reviewed. Typical of the reported cases assessing damages for facial scars of this description is Lynch v. Derryberry, 339 So.2d 507 (La.App. 2d Cir. 1976) in which an award of $5,000 was reduced to $1,500 for one claimant and $2,000 for another.

With reference to these injuries, we find that in the exercise of his discretion the trial judge could have awarded a maximum amount of $6,000, and reduce the award of $10,000 to $6,000.

Gerald (Gary) Garrison

This 17 year old son of Mrs. Garrison received a whiplash injury to the neck and also suffered a minor strain of the dorsal spine. He was confined to bed for two weeks and experienced pain and discomfort as a result of his neck injury, which required him to wear a neck brace, for about four months. He went to work as a carpenter some three months after the accident. At the time of the trial he was working offshore in the oil industry.

The record shows that this young man’s primary complaint was with his neck injury, characterized by symptoms that indicated a moderately severe whiplash injury to the cervical region, but attended by no permanent residuals.

After considering the fact that no hospitalization was required for treatment of this injury and that there was no evidence of permanent disability, with the victim resuming manual labor after a relatively brief period of recuperation, we conclude that the trial judge abused his discretion in awarding $20,000 for this injury.

Of course, the reported cases involving awards for whiplash injuries to the neck are legion. Our review of those cases indicates that the damage awards for moderately severe whiplash injuries have ranged from $4,500 to $10,000. See Stoltz v. Continental Insurance Co., 231 So.2d 443 (La.App. 4th Cir. 1970); Ayres v. Great American Insurance Co., 163 So.2d 866 (La.App. 2d Cir. 1964).

In this case we have determined that the trial judge could have made a maximum award of $12,000 without abusing his discretion. Therefore, this award is reduced from $20,000 to $12,000.

Ursula Garrison

The 37 year old Mrs. Garrison sustained a knee injury which an orthopedic surgeon diagnosed as a pinched or possibly torn medial meniscus. She also had a cut on the forehead, near the hairline, which required ten stitches. This left no visible scarring. Although Mrs. Garrison resumed work a few weeks following the accident, she still complained of pain and discomfort at the time of the trial.

In view of the limited time during which Mrs. Garrison was incapacitated by her injury and the admittedly speculative nature of the physical basis for her complaint, we find that the trial judge abused his discretion in awarding $20,000 in general damages for this injury.

In Phillips v. Williams, 323 So.2d 808 (La. App. 4th Cir. 1975) the plaintiff was awarded $4,500 for an identical knee injury. It was established in Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3rd Cir. 1978) that the claimant had sustained a tear of the medial meniscus, for which $7,500 was awarded.

We have previously discussed awards for minor facial sears.

It is our conclusion that the maximum award which the trial judge could have made here without abusing his discretion was $12,500. Accordingly, we reduce this award from $20,000 to $12,500.

Sue Combs and Cammie Combs

Mrs. Combs suffered a cervical strain, accompanied by muscle spasms, for which she received treatment from March 8 until April 5. She missed some two weeks of work. The trial judge awarded her $4,000 in general damages. Mrs. Combs’ small child, Cammie, received a contusion on the forehead, for which she was awarded $750. We do not find that these awards constituted abuses by the trial judge of his wide discretion.

Conclusion

For the reasons set forth, the judgment of the trial court is amended and that portion awarding damages is recast to read as follows:

“I
In favor of Flint H. Garrison as Administrator of the estate of his minor children as follows: For Gary Garrison, $12,-000; for Evelyn Garrison, $6,000; for Rita Garrison, $4,000; and for Curtis Garrison, $40,000.
“II
In favor of Ursula Garrison, wife of Flint H. Garrison, $12,500.

As amended, the judgment is affirmed, with costs of this appeal assessed one-half to appellant and one-half to appellees.


source: Caselaw Access Project

author: FRED W. JONES, Jr., Judge.

license: Public Domain

text:
    Sue COMBS, Plaintiff-Appellee, v. CITY OF MONROE and State of Louisiana, through the Department of Highways, Defendants-Appellant-Appellee.
    No. 14574.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.
    Johnson, Johnson & Johnson by Don H. Johnson, Monroe, for defendant-appellant, State of La. through Department of Highways.
    Thomas V. Gardner, Jr., Asst. City Atty., for defendant-appellee, City of Monroe.
    Rankin, Yeldell, Herring & Katz by Alex W. Rankin, Bastrop, for plaintiff-appellee, Sue Combs.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

This suit was consolidated with Garrison v. State of Louisiana, through the Department of Highways, et al., 401 So.2d 528 (La.App. 2d Cir. 1981), for trial purposes. The trial court rendered separate judgments in the consolidated cases. We considered the three suits together and gave our reasons for judgment in all three cases in Garrison, supra. For the reasons assigned in that opinion rendered on this date, we affirm the judgment of the trial court in this case, at appellant’s cost.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. HERITAGE INSURANCE COMPANY et al., Defendants-Appellees Appellant.
    No. 14575.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    En Banc. Rehearing Denied July 15, 1981.
    Johnson, Johnson & Johnson by Don H. Johnson, Monroe, for defendant-appellant, State of Louisiana through Department of Highways.
    Snelling, Breard, Sartor, Inabnett & Trascher by Kent Breard, Monroe, for defendants-appellees, Heritage Ins. Co. and Sue Combs.
    Theus, Grisham, Davis & Leigh by J. Bachman Lee, Monroe, for plaintiff-appel-lee, State Farm Mut. Auto. Ins. Co.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

This suit was consolidated with Garrison v. State of Louisiana, through the Department of Highways, et al., 401 So.2d 528. (La.App. 2d Cir. 1981), docket No. 14,573, for trial purposes. The trial court rendered separate judgments in the consolidated cases. We considered the three suits together and gave our reasons for judgment in all three cases in Garrison, supra. For the reasons assigned in that opinion rendered on this date, we affirm the judgment of the trial court in this case, at appellant’s cost.


author: DOMENGEAUX, Judge.

text:
    Norris D. JACKSON, Plaintiff-Appellant, v. TRI-STATE ELEVATOR COMPANY, INC., et al., Defendants-Appellees.
    No. 8113.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      William Henry Sanders, Jena, and Wilson M. Montero, Jr., New Orleans, for plaintiff-appellant.
    Dávis & Murchison, James D. Davis, Alexandria, John Sturgeon, Harrisonburg, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Norris Dale Jackson, filed suit to recover damages for personal injuries allegedly suffered when he stumbled while stepping out of an elevator which stopped above floor level in the Catahoula Parish Courthouse in Harrisonburg, Louisiana, on August 12, 1976. Plaintiff alleges that he sustained injuries to his back and neck which aggravated prior surgery to his neck and spine; he was forced to undergo additional surgery; and he suffered paralysis from the waist down, all as a result of his stumble from the unlevel elevator.

The jury returned a verdict in favor of Aetna Life & Casualty Company (Aetna), the Catahoula Parish Police Jury’s liability insurer, and the only defendant remaining in.this lawsuit. The trial court then dismissed plaintiff’s claim with prejudice.

Plaintiff has appealed assigning the following errors: (1) Refusal of the judge to recuse himself; (2) Commission of reversible error by the court during voir dire; (3) Failure to grant a continuance; and (4) A jury verdict which is inconsistent with the law and the facts.

Alleged errors (1), (2) and (3) have already been rejected in a decision previously rendered by this court on plaintiff’s motion to remand. See Jackson v. Tri-State Elevator Company, Inc., 398 So.2d 199 (La.App. 3rd Cir. 1981). Our decision here will be limited to a consideration of plaintiff’s assigned error No. 4: Was the jury verdict inconsistent with the law and the facts?

The jury rendered its verdict in Aetna’s favor without indicating its reasons for so doing. However, in order to decide the case in Aetna’s favor, the jury must have concluded that one or more of the following statements was true: (1) The elevator in the Catahoula Parish Courthouse was not defective; (2) Plaintiff’s fall from the elevator did not cause any injuries, including paralysis; it did not aggravate any previous surgery to plaintiff’s neck or spine; nor did it necessitate further surgery; or (3) Plaintiff’s fall from the elevator was caused by his own fault in not observing that the elevator was higher than the surrounding floor.

PACTS

The only eyewitnesses to the alleged incident were the plaintiff himself and Jim Ratcliff, who accompanied the plaintiff to the Catahoula Parish Courthouse. Each man testified that he had never been to this particular building so both were unfamiliar with its layout. They asked for directions to a judge’s office and a construction worker directed them to the elevator because the judge’s office was on the second floor.

According to their testimony, plaintiff and Mr. Ratcliff entered the automatic elevator on the ground floor and rode to the second floor. There the door opened, closed partially and then reopened. Mr. Ratcliff then held the door open with his hand so it would not close while they disembarked from the elevator. Plaintiff exited first, but he stumbled and fell against a wall about three feet from the door of the elevator. He did not fall down. Mr. Ratcliff hurriedly followed in an attempt to help prevent plaintiff from falling.

Both plaintiff and Mr. Ratcliff turned around and noticed that the floor of the elevator was stopped several inches above the level of the second floor. After concluding their business on the second floor, plaintiff and Mr. Ratcliff re-entered the still unlevel elevator and rode to the ground floor where the elevator leveled properly. They left the building without telling anyone of plaintiff’s mishap in the elevator.

1. Was the elevator defective?

Most witnesses who were familiar with and had ridden upon the elevator for several months before the accident allegedly occurred testified that they knew from personal knowledge that the elevator frequently stopped above or below the level of a designated floor. That this elevator malfunctioned was commonly known to most who operated and rode on the elevator with any frequency. Only one witness who regularly rode the elevator testified that he never knew the elevator to stop above or below a floor.

It is uncontested that the police jury was the body responsible for maintaining the elevator. The evidence in the record demonstrates that the elevator was last repaired in January of 1976 by Tri-State Elevator Company, Inc. On that occasion, however, Tri-State was called to repair the elevator because it would not operate at all, not because it failed to level properly.

The jury was instructed that the owner or custodian of a defective thing is liable for injuries caused by the defect. However, the owner or custodian can escape liability by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. La.C.C. Art. 2317; Marguez v. City Stores Company, 371 So.2d 810 (La.1979).

For a plaintiff to successfully recover under Art. 2317 he must prove: (1) that the thing which caused the damage was in the care and custody of the defendant; (2) that the thing was defective (i. e., it occasioned an unreasonable risk of injury to another); and (3) the injury was caused by the defect.

The evidence clearly establishes that the elevator was in the care of the police jury and that it was defective because it failed to level properly. The jury would have been clearly wrong in concluding otherwise. Hence the jury must have concluded that either the injuries were not caused by the defect, or the plaintiff’s stumble resulted from his own fault.

2. Did the defective elevator cause plaintiff’s injuries?

The jury could reasonably have found that plaintiff’s injuries were not caused by the defect in the elevator.

The evidence established that plaintiff has had a history of injuries to and degenerative conditions in his back and neck. He first injured his lower back in 1966 and reinjured it in 1967. Surgery to his back was performed for the first time in 1967 following the second injury. In November of 1975 plaintiff reinjured his back and injured his neck in an automobile accident. As a result of this accident two slipped discs were removed from his lower back on May 13, 1976, and two discs were removed from his neck and a fusion was performed by inserting a plug of hip bone into the neck on May 21, 1976, at St. Luke’s Hospital in Houston, Texas. Both surgical procedures were performed by Dr. Alexander Brodsky of Houston, Texas, an orthopaedic surgeon, on the recommendation of Dr. John McCutchen, plaintiff’s treating physician, a neurologist who was also from Houston, Texas.

In July of 1976, two months after his surgery, plaintiff was examined by Doctor McCutchen and was found to be doing very well. Two months later in September of 1976 (one month after the accident), plaintiff was again examined by Doctor McCutchen. Plaintiff described his elevator mishap and the resulting increase in pain to Doctor McCutchen. The doctor examined plaintiff and found that his physical condition had deteriorated since the July examination. He also found that the neck fusion had been disrupted and was not healing as it should.

Plaintiff next saw Doctor McCutchen in December of 1976. At that time, he complained of increased pain in his neck but felt that his back was a little better. Plaintiff did not consult Doctor McCutchen again until, seventeen months later in May of 1978. During this hiatus he continued and completed his legal education. However, he experienced pain daily and described feelings of numbness. During that seventeen month interim plaintiff refilled prescriptions for pain medication about once a month.

Finally, in August of 1978, surgery was again performed on plaintiff’s neck by Doctor Brodsky. Two discs were removed, new fusions were performed and the disrupted fusion was re-fused. Plaintiff’s complaints persisted, however, until finally, in October of 1979, plaintiff lost all sensation in his legs and was unable to control his excretory functions.

According to Doctor McCutchen, plaintiff’s paralysis was caused by a ruptured or slipped disc in his lower back. To relieve the paralysis, the disc was removed. However, the paralysis was going to last about two years, after which time the plaintiff would be able to walk with crutches and would be able to function normally in his profession as an attorney.

By way of deposition, Doctor McCutchen attributed all of plaintiff’s post-August 1976 symptoms and complaints, including his paralysis, to the elevator accident of August 12, 1976. Doctor Brodsky, also by way of deposition, testified that he felt that more probably than not plaintiff’s problems, dating from September of 1976 through his paralysis, were a result of the elevator accident also.

Despite the medical evidence to the contrary, the jury would not have been manifestly erroneous in concluding that plaintiff’s ongoing discomfort, his 1978 surgery, and his later paralysis and surgery were neither related to nor caused by his stumble from the Catahoula Parish Courthouse elevator in August 1976.

The jury may have concluded that plaintiff’s May 1976 neck fusion simply failed to heal properly. Doctor Bruce Craig, defendant’s expert witness who was called to explain in laymen’s terms the surgical procedures performed in Houston, testified that not all fusions are successful. Sometimes the inserted bone just fails to live, thus causing the fusion attempt to fail. Doctor Craig also testified that the discs which were removed from plaintiff’s neck in August 1978 were, according to the surgical reports, recognized by Doctor Brodsky as being diseased in June of 1976, two months before plaintiff stumbled from the elevator. Additionally, the ruptured or slipped disc which caused plaintiff’s temporary paralysis in 1979 was revealed as a degenerative bulging disc by a myelogram performed between July 27, 1978, and August 8, 1978, more than a year before plaintiff’s paralysis.

In addition, the jury may have been reluctant to accept the conclusions of Doctors McCutchen and Brodsky that all of plaintiff’s post-August, 12, 1976, complaints resulted from plaintiff’s stumble from the elevator, especially if it considered other evidence presented: plaintiff only infrequently visited his Houston doctors following the elevator accident yet withstood the rigors of going to law school during the year and a half after the accident; and plaintiff insisted on delaying any further surgery to correct the failed surgery until after completing law school, thereby exposing himself to serious additional injury from daily activity.

Considering the degenerative conditions which flourished in plaintiff’s neck and back for years, and the other evidence which was presented, we do not believe the jury would have been clearly wrong in deciding that plaintiff’s stumble from the defective elevator did not cause his injuries.

3. Was plaintiff's fall caused through his own fault?

The trial court charged the jury that “an individual with an infirmity is held to the same degree of care that a person with this infirmity is capable of exercising and that to fulfill this duty an incapacitated person must be required to exert greater care for his own safety than is demanded by an individual free of physical infirmities.” King v. Investment Equities, Inc., 264 So.2d 297 (La.App. 1st Cir. 1972).

A person is deemed to have seen that which a reasonably prudent observer could have seen or should have seen under the same or similar circumstances. Richard v. Sonnier, 363 So.2d 961 (La.App. 3rd Cir. 1978); Williamson v. Gulf Coast Line Contracting Company, Inc., 301 So.2d 657 (La. App. 3rd Cir. 1974).

The jury might have concluded that a reasonably prudent person riding in an elevator, in the exercise of reasonable care for his own safety, could have or should have observed the considerable difference in elevation between the level of the elevator floor and the level of the designated floor before stepping out of the elevator. Indeed, nothing in the record tends to show that the difference in elevation was not readily observable by one in the elevator.

Plaintiff testified that he was prevented from observing the difference in elevation because a stiff neck collar he was wearing prevented him from looking downward. However, plaintiff, an incapacitated person, was required to exert greater care for his own safety than an individual free of physical infirmities. In order to discharge his duty of exercising reasonable care for his safety, plaintiff might have bent forward at the waist to ascertain whether the floors were level or he might have solicited that information from his fellow passenger, Mr. Ratcliff. However, neither precaution was taken.

Under the circumstances of this case, we cannot say the jury erred if it found, as a matter of fact, that the difference in elevation between the floor of the elevator and the designated floor was easily observable by anyone in the elevator, and that plaintiff was contributorily negligent, and thus barred from recovery, in not observing that which was plainly apparent to the reasonably prudent person. Marshall v. Biggs, 392 So.2d 111 (La.App. 1st Cir. 1980).

DECREE

For the above and foregoing reasons the judgment of the district court is affirmed. All costs are assessed against the plaintiff, Norris Dale Jackson.

AFFIRMED.

      . All other defendants were released or dismissed prior to or during trial. Those defendants were: the Catahoula Parish Police Jury, Tri-State Elevator Company, Inc., Otis Elevator Company, Westerchil Construction Company, and Charles R. Westerchil.

      . Plaintiff was a law student working for a lawyer during the summer and Mr. Ratcliff was plaintiff’s employer’s client. Plaintiff later completed his legal education and was hired by the same lawyer, who is also one of plaintiff’s lawyers in this litigation.

      . At that time the courthouse was being renovated or remodeled.

      . Plaintiff settled his tort and workmen’s compensation claims which emanated from this 1975 accident for $40,000.00 and $16,000.00 respectively.

      . The underscored portions of the charge should probably have read: “same degree of care of an ordinary prudent person which the law establishes for everyone .. . may be required ... of an individual free of physical infirmities.” See King, 264 So.2d at 301.

      . A plurality of the Louisiana Supreme Court has recently determined that the defense of “victim fault” under La.C.C. Art. 2317, as identified in Loescher v. Parr, 324 So.2d 441 (La.1976), may include ordinary contributory negligence. Dorry v. Lafleur, 399 So.2d 559 (La.1981). The plurality retreated from a suggestion in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971) that in no case of strict liability would ordinary contributory negligence be a defense. Independently of Dorry, two Court of Appeal decisions concluded that under the circumstances of those cases ordinary contributory negligence amounted to victim fault. Sullivan v. Gulf States Utilities Company, 382 So.2d 184 (La.App. 1st Cir. 1980) and Wilkinson v. Hartford Accident & Indemnity Co., 400 So.2d 705 (La.App. 3rd Cir. 1981). We believe the same conclusion can be made under the circumstances of this case.


author: CULPEPPER, Judge. DOMENGEAUX, Judge, LABORDE, Judge,

text:
    Buering GUILLORY, Plaintiff-Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellant.
    No. 8129.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.

      Dubuisson & Dubuisson, James G. Du-buisson, Opelousas, for defendant-appellant.
    Guillory, McGee, Mayeux & Fontenot, Donald L. Mayeux, Eunice, for plaintiff-ap-pellee.
    Before CULPEPPER, DOMENGEAUX, GUIDRY, SWIFT and LABORDE, JJ.
   CULPEPPER, Judge.

This is a workmen’s compensation case. Plaintiff had completed a day’s work as a common laborer and was walking toward the exit of the plant when he suddenly became dizzy and fainted. The subsequent diagnosis by medical experts was syncope (fainting) caused by aortic valve stenosis. The district judge found the syncope was job related and caused plaintiff’s present total and permanent disability. Defendant appealed. Plaintiff answered the appeal, seeking penalties and attorney’s fees, which were not awarded by the district judge.

The substantial issue on appeal is whether there was a causal connection between the accident and the disability.

The evidence shows that plaintiff is an uneducated male, 42 years of age, who has worked all of his life as a common laborer. On December 15, 1978, he was using a pick and shovel to dig excavations for concrete slabs. At quitting time, about 3:30 P.M., he put his tools in the shed and was walking toward the plant exit when he suddenly became dizzy and short of breath and blacked out. Co-employees immediately took him to Baton Rouge General Hospital, where he was placed in intensive care and seen by Dr. Boyd E. Helm, a cardiologist of Baton Rouge.

Dr. Helm’s diagnosis was syncope (fainting) caused by aortic valve stenosis. The doctor explained plaintiff had pre-existing aortic valve disease which could have been congenital or could have been caused by such things as rheumatic fever, syphilis or bacterial infections. Over a period of years, calcification of the defective valve progressed causing the valve to become stenosed or constricted. This meant that less and less blood could leave the valve, which is located in the upper left side of the heart. It was Dr. Helm’s opinion that by the day of the accident, December 15, 1978, the valve had become stenosed to the extent that on physical exertion and increased demands on the heart for blood, an insufficient amount of blood could be pumped through the valve. Moreover, some of the blood that did leave the valve may have flowed back into the heart, as it should not do. This meant that an insufficient amount of blood reached plaintiff’s brain, resulting in the symptoms of dizziness and passing out.

Plaintiff remained in the hospital in intensive care from December 15, 1978, to December 19, 1978, during which time Dr. Helm administered the various examinations and tests from which he diagnosed aortic valve stenosis. He recommended plaintiff undergo a catheterization of the heart. In this procedure a tube is inserted through a vessel into the heart and a dye is used to determine the amount of valve disease, the purpose being to determine whether heart surgery is necessary to replace the valve, and also to evaluate his coronary arteries to see whether he needed any bypasses. Dr. Helm testified he explained to plaintiff that on the basis of his diagnosis of aortic valve stenosis, which had progressed to the point of syncope on exertion, the prognosis was that the stenosis would rapidly progress and death would probably occur within five years unless the valve was replaced. Despite this advice, plaintiff never did submit to the catheterization.

When plaintiff left the hospital on December 19, 1978, he agreed to return on December 26, 1978, for the catheterization. However, on this later date he refused to undergo the catheterization. Instead, he returned to his home in Ville Platte, where he saw Dr. Charles E. Fontenot, a general practitioner, in February of 1979, and Dr. Donald Francis Gremillion, an internal medicine specialist of Opelousas, for complaints of dizziness, chest pain, shortness of breath, and weakness. The testimony of these two latter physicians as to their examinations and opinions will be discussed later. Essentially, they made the same diagnosis and prognosis as Dr. Helm.

All three physicians testified the fainting spell on December 15, 1978, was probably causally related to the strenuous physical labor performed by plaintiff that day. Furthermore, all three were of the opinion that plaintiff is now permanently and totally disabled from performing strenuous physical labor. Under this expert medical testimony, defendant concedes that plaintiff suffered a job related accident on December 15, 1978, and that he is presently disabled. However, defendant contends the expert medical testimony of all three of the doctors shows plaintiff suffered pre-existing aortic valve stenosis and that the accident, that is the fainting spell on December 15, 1978, did not cause any physical change in plaintiff’s body which worsened the pre-ex-isting condition.

Defendant concedes that the applicable rule of law is set out in Haughton v. Fireman’s Fund American Insurance Companies, 355 So.2d 927 (La.1978) as follows:

“When there is an accident and a resulting disability without any intervening cause, it is presumed that the accident caused the disability. This simple guide plainly stated in Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969), we affirmed in Johnson v. The Travelers Insurance Co., 284 So.2d 888 (La.1973) and reaffirmed in Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La.1974). The presumption is not irre-buttable, but its effect is to shift the burden of proof to the defendant.”

Also, defendant calls our attention to the following rule stated in the final opinion on rehearing in Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 at page 827 (1969):

“In a case such as the present one, where there is proof of an accident and of a following disability without any intervening cause, it is presumed that the accident caused the disability. The criterion for causal connection between the accident and the disability is: Has the accident changed the plaintiff’s condition so as to render him disabled and unfit for his former employment?”

See also the recent case of Rowland v. Continental Oil Company, Inc., 374 So.2d 734 (La.App. 3rd Cir. 1979) in which we held the presumption established in Bertrand and followed in Haughton is not that the accident was caused by job related activities. The accident must still be proved by a preponderance of the evidence without a presumption. The Bertrand presumption is that where a job related accident is proved, and there is ensuing disability, the disability is presumed to have been caused by the accident, absent an intervening cause. However, we pointed out in Rowland that the Bertrand presumption, reaffirmed in Haughton, is rebuttable.

Applying these rules to the present case, we find a job related accident and disability were proved. Thus, it is presumed the accident caused the disability, there being no evidence of any intervening cause. This shifted the burden of proof to the defendant to rebut the presumption. We conclude that defendant has sustained this burden. The expert medical testimony is unanimous to the effect that plaintiff’s aortic valve disease was not caused nor made worse by his work activities on December 15, 1978.

All three physicians who testified were called as witness for the plaintiff. The principal expert is Dr. Helm, the treating physician and a specialist in cardiology, which field covers the present issues. On the question of whether the aortic valve stenosis was caused by hard physical labor either on or before the day of the accident, Dr. Helm testified:

“Q. All right. The aortic stenosis itself would not have been caused by the hard work. Right, doctor?
A. No, it wouldn’t be.
Q. Is this a symptom in the heart that builds up over a period of time?
A. The aortic stenosis?
Q. Not a symptom, a condition of the heart that builds up over a period of time?
A. Yes. It’s a condition of the heart that builds up over a period of time.”

Also, Dr. Charles Fontenot, the general practitioner in Ville Platte, testified on this issue:

“Q. All right. So its not something that just manifests itself by strong physical exertion one particular day?
A. No, No, it wouldn’t be caused by working hard. Aortic stenosis is not caused by work.
Q. Now, aortic stenosis, the causes, that’s something that develops over a period of time?
A. Right.”
* * * * * #
“Q. * * * Doctor, you also testified that you had no doubt that this condition pre-existed December 15, 1978, by some long period of time?
A. Right.
Q. And you also testified, didn’t you, Doctor, its your opinion work had nothing to do with the cause of this condition?
A. Right.”

Dr. Donald Gremillion, the internal medicine specialist in Opelousas testified:

“Q. I want to ask you this, Doctor: He is disabled now due to a heart pathology which is known as aortic stenosis? Is that correct?
A. Yes, sir.
Q. An aortic stenosis is not caused by hard work?
A. No, sir. The etiology is not due to hard — to labor. Not aortic stenosis, no, sir.
Q. Doctor, isn’t it also fair to say that aortic stenosis progresses in what the doctors sometimes call ‘clinical silence’ for many years?
A. Yes, sir.
Q. In other words, the man has it and he doesn’t know it, and its a condition which progressively gets worse, and then some symptom is going to occur to tell him that he has it?
A. That’s right. Yes, sir.
Q. That symptom could occur whether you are working or not working?
A. That’s right.
Q. When that symptom does occur, then in all probability, the aortic stenosis has gotten to the stage where the man had best take care of himself and not perform hard labor?
A. That’s my opinion, sir.”

From the above quoted testimony of all three of the expert medical witnesses in this case, we feel there is no question the pre-existing aortic valve stenosis was not caused by physical labor performed by plaintiff on or before the day of the accident.

The next question is whether the syncope (fainting) on December 15, 1978, caused the pre-existing aortic stenosis to become worse than it was before that date. Here again, all three doctors testified it did not. Dr. Helm stated:

“Q. Do you think that because of this incident, and we can call it an accident if you want to, on December 15, 1978, that that condition was worsened or aggravated?
A. No.
Q. I think that you have committed yourself in writing to the fact that it was not aggravated by this condition — this incident.
A. That’s correct. I mean the aortic stenosis didn’t get any worse because of these symptoms.”

Dr. Fontenot testified on this issue:

“Q. But my question is, merely because he had the hard work, which resulted in the syncope or fainting spell, did not aggravate permanently the aortic stenosis?
A. No, its an agressive (progressive ?) disease which is gradually worsened with time.
Q. In other words, Doctor, this man in the past may not have realized it, may have had dizziness . . .
A. Right.
Q. ... or dyspnea or shortness of breath, or any of the other common symptoms . . .
A. Right.
Q. ... of aortic stenosis, and may not have even realized it?
A. That’s right.
Q. This was just a dramatic symptom of the condition?
A. That is right.”

Dr. Gremillion also testified on this issue:

“Q. The question I want to ask you is whether or not that fainting aggravated the aortic stenosis?
A. Oh, no, sir.”

Thus, all three of the doctors testified plaintiff’s pre-existing aortic valve disease was not aggravated or made worse by the fainting spell on December 15, 1978. This fainting spell was only a symptom which made the doctors aware of the pre-existing heart disease and that it had progressed to the point that it was disabling.

In a supplemental brief filed in this court after oral argument, counsel for plaintiff, in an attempt to show there is some expert medical testimony in the record that the fainting spell worsened plaintiff’s pre-exist-ing physical condition, quotes the following by Dr. Helm under redirect examination by plaintiff:

“Q, Alright. Well, is there a change — if he is not having heart pain and he obviously wasn’t if he had been working regularly, you know, like the history does show and prove, then that means he must have been getting enough blood to the heart as compared to now where he is having this heart pain and he must not be getting enough blood to the heart. Would that not be a change?
A. Well, it’s a change. Yes, it’s a change. He has — I think his symptoms have markedly increased and there has been a change in his symptoms.
Q. Since the accident on December 15th?
A. There is a change in his symptoma-tology and he has worsened since December 15th.”

• We have carefully studied the entire testimony by Dr. Helm. The excerpt quoted by plaintiff in his supplemental brief does not change nor conflict with the opinion expressed by Dr. Helm several times that the fainting spell of December 15, 1978 did not worsen plaintiff’s pre-existing heart disease. All that Dr. Helm is saying in the portion of his testimony quoted by plaintiff is that since the December 15, 1978 fainting spell, plaintiff’s symptoms have increased markedly. In other portions of his testimony, Dr. Helm explained that once the calcification of the leaflets of the aortic valve has progressed to the point that there is a fainting spell from insufficient blood flow to the brain, the disease then usually progresses rapidly. Also, blood supply will probably become insufficient for the coronary arteries, resulting in angina (chest pain). Finally, death will usually result within five years unless the defective valve is replaced.

Counsel for plaintiff also argues the question of causal connection between the accident and the disability is an issue of fact as to which the trial judge should not be reversed on appeal unless he was clearly wrong. In the present case, we conclude the trial judge was clearly wrong in finding as a fact that the presumption of causal connection between the accident and the disability was not rebutted by the unanimous highly qualified expert medical opinion to the contrary.

Malone and Johnson, Workers’ Compensation, 2nd Edition, Section 257, at pages 564^-565, makes the following observation regarding appellate review:

“Especially on the issue of whether there was an accident event are appellate courts slow to reverse the decision of the trial court. The occurrence of an accident is usually proven by oral testimony, and the credibility of the witnesses is often the all-important factor. The trial judge, who heard the witnesses, and has had an opportunity to observe them, is often in a better position to weigh credibility than an appellate court reading from the record.
Expert medical opinion, however, may readily be weighed by recourse to the record, and since medical testimony is an important factor in determining causal relation between accident and disability, the appellate court is somewhat more ready to reach an independent decision on this question than on the question of the occurrence of an accident event, though reversals are still infrequent.”

In the present case, we conclude the trial judge was manifestly erroneous in finding a causal relation between the accident and the disability. As stated above, all of the expert medical opinion, including that of the highly qualified treating physician specialist, Dr. Helm, a specialist in internal medicine, Dr. Gremillion, and plaintiff’s own physician at his home in Ville Platte, Dr. Fontenot, is clear and unequivocal that there was no causal relation between the fainting spell on December 15, 1978, and plaintiff’s present disability.

For the reasons assigned, the judgment appealed is reversed and set aside. It now ordered, adjudged, and decreed that plaintiff’s suit be dismissed and that he pay all costs in the trial and appellate courts.

REVERSED AND RENDERED

DOMENGEAUX and LABORDE, JJ., dissent and assign reasons.

DOMENGEAUX, Judge,

dissenting.

My esteemed colleagues of the majority have made a skillful judicial end-run which completely side steps and evades the blocks and tackles of the Bertrand case. I suggest that the only way that this reversal will stand is if the Louisiana Supreme Court overrules Bertrand.

The trial judge, without giving reasons therefor, concluded that plaintiff “has made out his case on the question of disability and causal connection with the employment and should be awarded total and permanent disability.”

On this appeal, two issues confront us: (1) Whether there is any causal connection between the accident of December 15, 1978, and the disability of which plaintiff complains; (2) Should plaintiff be awarded penalties and attorney’s fees?

CAUSALITY

Prior to plaintiff’s accident of December 15, 1978, he had never had chest pains, nor fainted, and as far as he or anyone else was concerned, was in good health.

All physicians in this case agree that plaintiff suffers from an aortic stenosis. Simply stated, that condition exists when a heart valve becomes stenosed or constricted. With this condition less blood can leave the heart. A person with such a condition could have problems such as passing out, suffering from shortness of breath, or chest pains. This aortic insufficiency means that the valve is distorted and some of the blood that does leave the heart flows back into the heart — an event which should not occur.

All doctors agree that plaintiff was possessed of the aortic stenosis for many years prior to the accident of December 15, 1978. They also all agree that such a condition is usually congenital and that plaintiff’s condition was probably congenital. However, as all doctors state, an aortic stenosis can be caused from numerous other phenomena such as rheumatic fever or calcium in the aorta.

As an elementary proposition the doctors state that hard work or exertion cannot cause the condition of aortic stenosis; however, hard work or exertion can and does cause the onset of the symptoms of the disease, such as dizziness and fainting.

In this case, all physicians agree that the plaintiff is totally disabled. It is also agreed that the accident experienced by plaintiff on December 15, 1978, occurred while he was in the course and scope of his employment.

Plaintiff, since December 15, 1978, has been under numerous medications, including nitroglycerin for decreasing blood pressure, and he suffers frequently and spasmodically with chest pains. All of the doctors involved recommended that he remain quiet and engage in no exertion at all. The medical evidence glaringly brings out the fact that once symptoms such as chest pains and syncope (fainting) develop on one possessed of aortic stenosis, such symptoms can be related to impending death. Once chest pains develop many such people die within two years, and when fainting develops many of them die within five years. Unquestionably, plaintiff cannot exert himself without endangering his life.

Plaintiff’s ease fits the rationale set out by the Louisiana Supreme Court in Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969). The plaintiff in Bertrand was a 57 year old laborer, and while performing heavy work in the sun while on the job he became weak, dizzy, and almost fainted. His condition was diagnosed as a nodal tacyhcardia, a conduction defect impairing the heart’s responses to impulses regulating its beat. Upon his doctor’s advice he rested for some months, went back to work, and while on the job blacked out, and fell to his knees, although he did not lose consciousness. Upon subsequent examination his doctor advised him to stop working because his heart condition was incompatible with his work. The doctor thought that continued work in the hot sun might bring about a full blown coronary and plaintiff’s death. The 'Supreme Court recognized a causal connection between the Bertrand plaintiff’s second accident and his disability and declared him to be totally and permanently disabled.

The Bertrand plaintiff had a pre-existing condition known as arteriosclerosis, which is a hardening and clogging of the arteries near the heart. The plaintiff in this case had a stenosed heart valve.

Doctor Helm, whose analogy of a ste-nosed heart valve and clogged arteries was agreed upon by Doctors Gremillion and Fontenot, testified as follows:

“Q. Now, doctor, do you think that in your opinion that this type of condition Mr. Guillory has, the manifestation of it, the hard work that requires the blood — the heart to work harder and to pump blood and not enough getting to the head, is that like a man who has clogged arteries that might be working hard one day and not enough blood getting through these arteries and then causing chest pains? Is this a correlation of symptoms?
A. Yes.. . .
Q. Is this a — how would you compare this?
A. The mechanics are the same.
Q. The problem is still you have the chest pains and dizziness because not enough blood is getting where it’s suppose to be getting. Right?
A. Correct.
Q. Whether you have a defective valve or a clogged artery, you still have the problem of blood not flowing like it should be?
A. Those are very similar situations. That’s correct. TR (R.46-47)”

Arteriosclerosis or clogging of the arteries, is not caused by hard work, just as aortic stenosis is not caused by hard work. But when the accident (exertion) manifests the symptoms, i.e. chest pains, fainting, dizziness, passing out, then there is a causal connection.

Defendant suggests that inasmuch as the fainting experienced by the plaintiff herein did not make his aortic stenosis worse there is consequently no causal relationship between plaintiff’s condition and the accident. If plaintiff herein would have had arteriosclerosis, as the plaintiff in Bertrand had, the hard work or fainting would not have made the clogging of the arteries worse. The hard work would have only manifested the symptoms or showed him that he had this problem. In Bertrand the plaintiff therein had a disease which developed slowly over a period of years. It was a degenerative condition involving a hardening of the arteries which supply blood to the heart. The court in Bertrand stated:

“In a case such as the present one, where there is proof of an accident and of a following disability without any intervening cause, it is presumed that the accident caused the disability. The criterion for causal connection between the accident and the disability is: Has the accident changed the plaintiff's condition so as to render him disabled and unfit for his former employment?
After the first accident which caused coronary insufficiency or ‘nodal tachycardia’ the plaintiff was unable to work for a little over two months. Then with specific medical approval he returned to his job and actually performed the required hard physical labor for nine months, apparently asymptomatic of either disease or disability. All medical authority would now refuse to allow the plaintiff to return to work following, and because of, the second episode of tachycardia or angina pectoris. Not only do we presume but we must deduce that the second episode produced some change in the body of the plaintiff.
Medical experts are unable to determine or state the cause, the time of onset, the rate of or reason for acceleration or regression of arteriosclerosis or coronary sclerosis. A plaintiff cannot be required to submit more proof than is here offered that he has suffered disability by reason of a causally connected accident when any additional proof must come from a science whose practitioners admittedly lack complete and exact knowledge of many aspects of the disabling disease and whose views are often divergent and vacillating.
Seals v. Potlatch Forests, Inc., supra [151 So.2d 587 (La.App.)] narrowly defined and overnicely refined the issue before the court. The legal criterion in compensation cases involving heart disease should be whether the accident caused a change in the employee's physical condition which is disabling, and not whether the accident changed the diseased organ of the employee. 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.
Before this accident the plaintiff, though suffering from a cardiac or cardiovascular disease, exhibited no disabling symptoms of the disease, and adequately met the extreme physical demands of his employment. He was working with medical approval and with his employer’s full knowledge of his existing dormant disease. He has established an accident and his inability to return to work. Medical opinion recognizes that an accident (exertion) caused some kind of injury, that the plaintiff is unable to return to work because of disability, and that the accident manifested the disability. We must therefore conclude that the accident has caused the termination of employment because of disability.” (Emphasis added).

By using specific responses from Doctor helm and the other two physicians to the effect that the “aortic stenosis” itself would not have been caused by plaintiff’s exertion in this case, the majority opinion attempts to show that the defendants have successfully rebutted the presumption that the accident herein caused the disability. The majority misses the point. The overall testimony of Doctor Helm and the other physicians show unquestionably that the accident involved in this case changed the plaintiff’s physical condition, consequently causing him to become permanently disabled. The following responses of Doctor Helm cannot be overlooked; they speak for themselves; the accident in this case did not change the stenosis (which no one claims), but changed plaintiff’s symptomatology and worsened his condition:

“Q. Alright. Well, is there a change — if he is not having heart pain and he obviously wasn’t if he had been working regularly, you know, like the history does show and prove, then that means he must have been getting enough blood to the heart as compared to now where he is having this heart pain and he must not be getting enough blood to the heart. Would that not be a change?
A. Well, it’s a change. Yes, it’s a change. He has — I think his symptoms have markedly increased and there has been a change in his symptoms.
Q. Since the accident on December 15th?
A. There is a change in his symptoma-tology and he has worsened since December 15th.”

Plaintiff here meets all of the requirements set out by the Supreme Court in Bertrand. He was able to and did perform strenuous work for the past 10 to 13 years. He was in good health the day before the morning of the accident. Since the accident he is totally and permanently disabled; in fact, any exertion at all may result in his death. The accident did not change plaintiff’s aortic stenosis, but it did change his physical condition which renders him disabled. His residual condition from the accident has substantially increased the possibility of a recurrence of a death-dealing episode, and consequently he is entitled to compensation. Finally, defendants have completely failed to overcome or rebut any presumptions required in Haughton and Rowland.

I would conclude that the trial judge was correct in awarding plaintiff total and permanent disability benefits.

PENALTIES AND ATTORNEY’S FEES

The trial judge did not pass upon plaintiff’s claim for penalties and attorney’s fees. I conclude that these sanctions should be applied.

The defendant-insurer paid the bulk of plaintiff’s medical bills, but denied its obligation to plaintiff for compensation benefits. (The record does not disclose why one was paid and not the other.) Appellant contends that there was no causal connection between the accident of December 15, 1978, and plaintiff’s subsequent and continuing disability. As shown in the main body of this dissenting opinion, I disagree. This case fits the Bertrand case like a glove. Defendant-insurer in this case is presumed to have known the holding in the Bertrand case and under the holding of that case, there was not a serious issue as to a com-pensable accident in the case at hand. The purpose of the penalty provision of the workmen’s compensation statute is to discourage an attitude of indifference to the injured employee’s condition. Moreau v. Houston General Insurance Company, 386 So.2d 151 (La.App. 3rd Cir.1980). I would conclude that the insurer’s failure to pay plaintiff compensation under the circumstances herein was arbitrary, capricious, and without probable cause, and accordingly, would proceed under the provisions of La. R.S. 22:658 to award attorney fees and penalties.

For all of the above reasons I disagree with this reversal by the majority, and respectfully dissent therefrom.

LABORDE, Judge,

dissenting.

I cannot distinguish the case of Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969) from the case under consideration. For that reason and for the reasons assigned by Judge Domen-geaux in his dissenting opinion which I adopt as my own, I would affirm the trial court finding that plaintiff is entitled to total and permanent disability benefits. I would also award plaintiff penalties and attorney’s fees. Moreau v. Houston General Insurance Company, 386 So.2d 151 (La. App. 3rd Cir. 1980).

I respectfully dissent.

      . Doctor Helm makes an inconclusive and unclear reference to a heart murmur which plaintiff told him was discovered when he was examined for the Army. The record otherwise does not show when this was. Obviously it was many years before the accident of December 15, 1978.

      . Doctor Helm additionally feels that depending upon the results of any future catheterization on plaintiff, he could be a subject for heart surgery which, depending upon the circumstances, could improve plaintiff’s condition and possibly allow him to perform some limited non-laborious work.

      . Appellant suggests that plaintiff herein is not entitled to recover based on the case of Cormier v. Aetna Insurance Company, 368 So.2d 461 (La.App. 3rd Cir. 1979). Cormier is readily distinguishable. Therein, the plaintiff, while on the job, sneezed and thereafter experienced chest pains, numbness and dizziness. His condition was subsequently diagnosed as an atrial septial defect, otherwise described as a hole in the wall of the heart. The medical evidence was to the effect that there was no causal relationship between Cormier’s job and his heart condition. It was the sneezing which caused him to experience the chest pains, numbness and dizziness and not the exertion and stress from work.


author: SWIFT, Judge.

text:
    Adam D. Kirby BERTRAND, Plaintiff-Appellant, v. Mildred Bell BERTRAND, Defendant-Appellee.
    No. 8150.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Jo Ann Nixon, Lafayette, for defendant-appellee.
    Shelton & Legendre, by Philip C. Kobetz, Lafayette, for plaintiff-appellant.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   SWIFT, Judge.

The Bertrands were divorced on November 8, 1971, having lived separate and apart without reconciliation for over one year following a judicial separation decree of June 27,1970. The divorce judgment incorporated the separation judgment’s provisions awarding to the plaintiff-wife the custody of their three minor children and child support in the amount of $30.00 per month per child.

The wife has now filed a rule seeking to hold her ex-husband in contempt, an execu-tory judgment for unpaid child support for the past three years and also an increase in child support to $500.00 per month per child. She testified that the defendant made no support payments to her during such period. On the other hand, the defendant testified that plaintiff refused to accept any support for the children from him, so he made numerous payments to them and also reimbursed his father for support the latter furnished the children. Defendant further contends that no support is due for the two eldest children as they reached the age of majority and left plaintiff’s home more than three years before the suit was filed. Also, he urges that no child support is due for the remaining minor, because she no longer lives with her mother.

The trial judge found that defendant paid no child support direct to the plaintiff during the said three year period and held him in contempt. He calculated the support arrearage on the basis of $30.00 per month for each of the three children for the 36 months before suit was filed, totaling $3,240.00, the amount sued for by plaintiff. He recognized that the father was not obliged by law to support the two sons after they became majors, but the judgment included their unpaid support under Halcomb v. Halcomb, 352 So.2d 1013 (La. 1977), because the defendant had not obtained a prior decree terminating his obligation under the separation judgment to pay for their support.

On this appeal the defendant complains only of the judgment for past due alimony for the two major children and the increase in support for the minor.

The father’s obligation under the separation decree was to support the children by making payments to the mother, not to them or to others for them. Thompson v. Courville, 372 So.2d 579 (La.App. 3 Cir. 1979).

The fact that a child is no longer living with the mother does not alter the rule that a judgment for child support remains in full force and effect in favor of the party to whom it was awarded until the party held liable applies to the court and obtains a modification. Gautreaux v. Gautreaux, 382 So.2d 996 (La.App. 1 Cir. 1980); Wisdom v. Wisdom, 356 So.2d 1111 (La.App. 2 Cir. 1978); Simon v. Calvert, 289 So.2d 567 (La.App. 3 Cir. 1974), writ denied 293 So.2d 187 (La. 1974).

It is also well settled that one cannot unilaterally reduce child support payments when one or more of the children for whom an in globo award has been made reaches majority status. Halcomb v. Halcomb, supra; McClure v. McClure, 363 So.2d 1334 (La.App. 3 Cir. 1978); Blankenship v. Blankenship, 382 So.2d 982 (La.App. 1 Cir. 1980).

In a concurring opinion to Halcomb, Justice Marcus noted that a distinction exists between the in globo award for several children involved in that case and where a child support judgment awards a specific amount for the support of each child. In the latter instance he believes that the support for a particular child would cease by operation of law upon that child’s majority. We have not been cited nor has our research disclosed any case since Halcomb involving this precise situation, but in many of the decisions following Halcomb the courts have mentioned particularly that its rule applies to in globo awards. We believe that the distinction pointed out by Justice Marcus is sound and reasonable and is applicable in this case. We therefore conclude that the judgment to plaintiff for past due child support must be reduced from $3,240.00 to $1,080.00.

The defendant also contends that the trial court erred in increasing the amount of support for the minor, Bridget Bertrand, from $30.00 per month to $150.00 per month because there is insufficient evidence to merit such increase. We disagree.

Louisiana Civil Code Article 227 imposes on parents a mutual obligation of support, maintenance and education of their children. The degree of support is determined by the needs of the child as well as the circumstances of those who are obligated to pay it. LSA-C.C. Articles 230 and 231; Graval v. Graval, 355 So.2d 1057 (La. App. 4 Cir. 1978); Marcus v. Burnett, 282 So.2d 122 (La. 1973); Strickland v. Strickland, 377 So.2d 537 (La.App. 3 Cir. 1979).

Each case must be decided on its own circumstances. In the instant case the original judgment was determined in 1970. The minor child is now sixteen years old. The child was recently injured in an automobile accident and some of the medical expenses incurred have not been paid. The rise in the cost of living coupled with the greater needs of the child as she gets older has been held sufficient to warrant an increase in child support. Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3 Cir. 1980).

The trial court held that the evidence presented concerning the needs of the child and the ability of the defendant to pay supported an increase in the amount of her support to $150.00 per month. Trial courts are vested with considerable discretion in fixing the amounts which parents should contribute for the support of their children and the judgment of the trial court in these matters will not be disturbed unless there appears to be an abuse of that discretion. Gravel v. Gravel, 331 So.2d 580 (La.App. 3 Cir. 1976); Dupre v. May, 365 So.2d 1173 (La.App. 3 Cir. 1978); Strickland v. Strickland, 377 So.2d 537 (La.App. 3 Cir. 1979). After careful review of the record, we find no such abuse in the instant case.

For the above and foregoing reasons, the judgment of the district court is amended to reduce the sum awarded to plaintiff against defendant for unpaid child support from $3,240.00 to $1,080.00, but otherwise it is affirmed. All costs except for this appeal are assessed against the defendant-appellant. The costs of appeal are assessed to both parties in equal proportions.

AMENDED AND AFFIRMED.

      . The separation decree is not in the record. However, the trial judge stated in his reasons for judgment and both parties have acknowledged in their briefs that it contained such provisions.

      . This rule has been modified to some extent by Dubroc v. Dubroc, 388 So.2d 377 (La. 1980), and Lachney v. Lachney, 399 So.2d 731 (La. App. 3 Cir. 1981), but these cases are inapplicable to the facts now before us.


author: PEREZ, Judge.

text:
    Donald G. GALLENT, C. P. A. v. STATE BOARD OF CERTIFIED PUBLIC ACCOUNTANTS OF LOUISIANA.
    No. 11826.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied Aug. 17, 1981.
    Henican, James & Cleveland, C. Ellis Henican, Jr., New Orleans, for plaintiff-appellant.
    Sockrider & Bolin, James E. Bolin, Jr., Shreveport, for defendant-appellee.
    Before GULOTTA and SCHOTT, JJ., and MELVYN J. PEREZ, Assigned Judge.
   PEREZ, Judge.

This case arises out of a hearing before the Louisiana Board of Certified Public Accountants (hereinafter referred to as Board). The appellant, Donald G. Gallent, a certified public accountant was censured by the Board. Thereafter, Gallent appealed the censure by petitioning the District Court for review. The District Court remanded the case to the Board to provide formal written reasons for the censure. After receiving the reasons from the Board, the Civil District Court of Orleans, without written opinion, affirmed the action of the Board.

The violation for which Gallent was censured related to his “independence” as a C.P.A., see Rule of Professional Conduct 2A of the State Board of Certified Public Accountants promulgated in accordance with R.S. 37:75 which provides:

“A. Independence — A CPA or a firm of which he is a partner or shareholder shall not express an opinion on financial statements of an enterprise unless he and his firm are independent with respect to such enterprise.”

The Board originally determined that Gallent lacked independence in fact from the agency he audited. The trial court requested written reasons. The Board held that “sufficient evidence has not been presented to establish that Mr. Gallent was not independent in fact.” Notwithstanding, the Board reaffirmed the censure on the ground that while Gallent had not been shown to lack independence in fact, he had lacked independence in appearance.

The issue presented to this court is whether Mr. Gallent’s censure by the Louisiana Board of Certified Public Accountants was proper.

FACTS

Gallent is a C.P.A. with an office in Baton Rouge, Louisiana. Gallent contracted with the City Parish of Baton Rouge to perform professional accounting services beginning in 1977. During the spring of 1977, Gallent was retained to audit the books of Community Advancement, Inc. (CAI), a non-profit, anti-poverty agency in Baton Rouge. During the course of the audit, Gallent noted several serious improprieties regarding the financial transactions of C.A.I. At a public meeting on September 20, 1977, Gallent charged C.A.I. was controlled by black leaders, Lee Wesley C.A.I. Executive Director, State Rep. Joseph Delpit and City-Parish Councilman Jewel Newman.

On October 13, 1977, City-Parish Councilman Jewel J. Newman filed a complaint against Gallent with the Louisiana Board of Certified Public Accountants. Councilman Newman charged Gallent guilty of:

“Specifically, he broached (sic) the confidentiality of the CAI audit by repeated statements to the press and by offering to reveal the contents of the audit to a person not connected to either the City Parish government or Community Advancement, Inc. (see attached article by Mr. Joseph Delpit which appeared in the Baton Rouge Enterprize, September 20th-26th edition). Also, prior to publication of the final results of the CAI audit, in my presence he offered to suppress the results of the audit and to secure the Executive Director of CAI a good job with the City if the Director would urge the Board of Directors to turn over the finances and the programs that the Agency was running to the City Parish Government. Finally, in press conferences, television appearances, public speaking engagements, and at political rallies, he has appeared as the independent auditor for the City Parish Government and actively engaged in political activities in support of the Mayor-President and a certain councilman. Further, he has publicly discussed the confidential affairs on Community Advancement, Inc. and by his action, materially damaged the already difficult financial position of the agency.” (emphasis added).

Councilman Newman requested that the Board make a full-scaled investigation of Gallent’s conduct and ethics.

The Board’s initial hearing on the matter was held on May 10,1978. The hearing was recessed and on May 31, 1978, Charles Ben-net, C.P.A., a member of the Board and acting on its behalf, wrote to Gallent notifying him that the hearing was to be re-set June 15, 1978, at which time he could face charges involving possible violations of Board Rule 75(2)

A Independence
C Competence
G Confidential Client Information
K Acts Discreditable
O Form of Practice and Name

When testimony resumed, Gallent was found to have violated 75(2)A and 75(2)0. However, the censure only applied to section 75(2)A; therefore, we confine our review to that finding.

After the Board’s decision was appealed to the district court, it was remanded to include proper findings of fact and conclusions of law as required by LSA R.S. 49:958. The Board’s written findings of fact and conclusions of law provided in part:

“The record and the testimony has dwelled on the independence of Mr. Gal-lent, some being in conflict with each other. Sufficient evidence has not been presented to establish that Mr. Gallent was not independent in fact.”

Nevertheless, the Board affirmed its censure of Gallent on grounds that he was not “independent in appearance.”

We feel that Mr. Gallent should not have been censured for not appearing independent. There is no provision in Board rules which proscribes the lack of independence in appearance. Clearly, the statute at that time only pertained to independence as evidenced by the phrase “. . . unless he and his firm are independent with respect to such enterprises.”

Mr. Gallent, therefore, should not have been censured for the lack of appearance of independence. It is clear that the Board has punished Mr. Gallent for action which has never been forbidden by its own rules.

An agency which attempts to control the behavior of individuals who are members must be governed by standards for decision which are stated in advance.

There is no violation in the Board’s rules for the lack of appearance of independence, and therefore, we hold that the censure of Donald G. Gallent, C.P.A. was improper.

We reverse the decision of the trial court.

REVERSED.

      . LSA R.S. 37:71 et seq. were subsequently amended Acts. 1979, No. 510.


text:
    Wilson BENOIT, Plaintiff-Appellant, v. PHILLIPS IRON WORKS, INC., et al., Defendants-Appellees.
    No. 8151.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    William G. Whatley, Baton Rouge, for plaintiff-appellant.
    Allen, Gooeh & Bourgeois, Arthur I. Robi-son, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   DOMENGEAUX, Judge.

In this workmen’s compensation suit the plaintiff, Wilson Benoit, seeks benefits for total and permanent disability from the defendants, Phillips Iron Works, Inc., and its workman’s compensation insurer, Hanover Insurance Company. Benoit has perfected this appeal from a decision of the trial court denying him benefits for total and permanent disability. We affirm.

The issues raised in this appeal are: (1) Did the trial court err in not ordering the plaintiff to undergo a medical examination and myelogram test under the court’s supervision?; and (2) Did the trial court err in determining that the plaintiff was not totally and permanently disabled?

On March 23, 1979, while working for the defendant as a helper, the plaintiff began to experience a pain in the lower back. He finished work for that day, a Friday, and returned to work the next Monday, when he again complained of pain and was taken to be examined by Dr. Joseph Comeaux, a family practitioner. Doctor Comeaux diagnosed a lumbosacral sprain and treated the plaintiff for the following three weeks at which time he recommended that the plaintiff return to work. The plaintiff returned to work but was re-examined by Doctor Comeaux two weeks later, again complaining of pain in the lower back. Finding no objective basis for the plaintiff’s complaints, Doctor Comeaux referred the plaintiff to Dr. Harold J. Hebert, an orthopedic surgeon. Doctor Hebert admitted the plaintiff into a hospital in an attempt to ascertain the cause of the plaintiff’s complaints, but subsequently released the plaintiff as being symptom free. The plaintiff was also examined by Drs. Meulman, La-Fleur, Williams and Whitecloud, all orthopedic surgeons. All but Doctor Whitecloud found no physical findings to support the plaintiff’s continuing complaints of pain. Doctor Whitecloud was of the opinion that the plaintiff had a disc problem and suggested a myelogram test be taken.

The plaintiff contends the trial court erred in not ordering a myelogram test to be taken because the medical evidence is in conflict. We disagree.

The trial court has the authority to order a workmen’s compensation claimant to undergo a medical examination under La.R.S. 23:1123 which reads:

“If there be any dispute thereafter as to the condition of the employee, the court, upon application of either party, shall order an examination of the employee to be made by a medical practitioner appointed by the court. The fees of such examiner shall be fixed by the court at not more than ten dollars, and shall be paid in advance by the applicant. The medical examiner shall report his conclusions from the examination to the court, and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.” (Emphasis added).

In the instant case, neither the plaintiff nor the defendant requested, prior to trial, that an examination by a physician appointed by the court be ordered.

This court held in D’Aville v. Travelers Insurance Company, 295 So.2d 454 (La.App. 3rd Cir. 1974), that La.R.S. 23:1123 does not require the trial court to order an examination if there has been ample time prior to trial to request such an order, concluding:

“LSA-R.S. 23:1122 requires the employer to immediately call for a medical examination to be made after an accident. Similarly, Section 1123 would imply by its reference to the preceding statute that the court-ordered examination should be made as expeditiously as possible after there is a dispute between the parties regarding the medical evidence. The statute does not require that the trial court appoint a physician where the parties have had ample time prior to the date set for trial to request an examination of the employee. This would interfere with the orderly proceedings of trial courts and delay the employee’s right to a judicial determination of disability. We do not imply that the trial court cannot order an examination if it is of the opinion further medical evidence is necessary.” (Emphasis added).

The plaintiff in the instant case did not request the trial court to appoint a physician to conduct the myelogram test until his motion for a new trial was filed after trial on the merits. In Roman v. Broussard, 255 So.2d 135 (La.App. 3rd Cir. 1971), the trial court refused to reopen the case to introduce testimony of a physician concerning the results of a myelogram performed after trial by a court-appointed physician. This court affirmed saying:

“. . . the decision to reopen a case for the production of additional evidence after all the parties have rested is one which is within the sound discretion of the trial court, and unless manifestly erroneous will not be disturbed on appeal. Dupre v. Hartford Accident & Indemnity Company, 200 So.2d 753 (La.App. 3rd Cir. 1967); Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970).”

We conclude that the trial court did not abuse its discretion in not appointing a physician to conduct a myelogram test on the plaintiff. The plaintiff had ample time to undergo such an examination prior to trial, and the record indicates that the defendants were willing to pay for it.

The plaintiff next contends the trial court erred in not finding him to be totally and permanently disabled. This contention is without merit. The plaintiff was seen by six physicians, five of them orthopedic surgeons. All but one of the physicians were of the opinion that the plaintiff’s complaints of pain were totally inconsistent and exaggerated and that he was able to return to work. Only Doctor Whitecloud, who examined the plaintiff only once for ten to fifteen minutes, was of the opinion that the plaintiff had a herniated disc and suggested further examination consisting of a myelo-gram. The lay testimony was in conflict.

The standard of review in workmen’s compensation cases has been discussed by the Supreme Court in Crump v. Hartford Accident & Indemnity Co., 367 So.2d 300 (La.1979) as follows:

“On appellate review, the trial court’s factual findings of work-connected disability are entitled to great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless clearly wrong. The reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are as reasonable.
See: Cadiere v. West Gibson Products Company, 364 So.2d 998 (La.1978); Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974). See also Canter v. Koehring, 283 So.2d 716 (La.1973).”

Our review of the record reveals that the trial court’s determination of facts is not manifestly erroneous and that the trial court was correct in concluding that the evidence overwhelmingly preponderated against the plaintiff.

For the above and foregoing reasons, the judgment of the trial court dismissing the plaintiff’s claim for total and permanent disability is affirmed. All costs are taxed to the plaintiff.

AFFIRMED.