author: DOUCET, Judge.

text:
    Charles HOPSON, Plaintiff-Appellant, v. GARNER BROS. MASONRY CONTRACTORS, INC., Defendant-Appellee.
    No. 83-1038.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Writ Denied Dec. 14, 1984.

      William Henry Sanders, Jena, for plaintiff-appellant.
    McLeod, Swearingen, Verlander & Dollar, Elmer G. Noah, Jr., Monroe, for defendant-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   DOUCET, Judge.

Charles Hopson, plaintiff-appellant, instituted this suit against Garner Brothers Masonry Contractors, Inc., defendant-appel-lees, seeking workmen’s compensation benefits for his back disability. The trial court held that Mr. Hopson’s disability is not work-related and rejected the claim. Mr. Hopson perfected this appeal of the trial court’s judgment.

Mr. Hopson’s back problems began in 1969 while in Vietnam serving in the Army when he strained his back while loading shells for heavy artillery. Since this initial injury, Mr. Hopson has occasionally had problems with his back due to its generally sensitive condition. On August 23, 1982, Mr. Hopson began working for Garner Brothers as a masonry helper. This job required Mr. Hopson to handle cinder blocks as well as perform odd jobs in assisting the masons. After working four weeks, Mr. Hopson informed his foreman that he was “laying off” because of pain in his back and stopped working. Mr. Hop-son then visited the Veterans’ Hospital in Alexandria, Louisiana on September 23, 1982 in order to have his back examined. While en route for a second visit to the same hospital on October 14, 1982, Mr. Hopson was injured in a car accident in which he sustained an aggravation of his back condition. Mr. Hopson has not been employed since his departure from Garner Brothers, and in this suit seeks compensation benefits for a total disability commencing on his departure from his job with Garner Brothers.

After a trial was conducted on the matter, the trial court rejected Mr. Hopson’s claim, for a temporary disability and for a permanent disability. The basis for this judgment is as follows:

“It is my view that Plaintiff probably has had chronic back problems since the incident he described occurred in Vietnam. I believe the masonry labor was too arduous for his back and that the work may have caused short term temporary disability. However, I believe that the auto accident he was in in mid-October is the most probable source of his long term inability to return to work. It is my view that handling of the masonry supplies did not significantly aggravate his chronic back problem or cause a new one.”

The plaintiff-appellant argues that the trial court was in error when it failed to award compensation for at least a temporary disability for the period prior to the auto accident after it concluded that Mr. Hopson may have had a short term temporary disability. In other words, the plaintiff-appellant contends that after the trial court concluded that the masonry work “may have caused a short term temporary disability”, it should have awarded benefits for a temporary disability. This contention is without merit. The trial court in fact concluded that the masonry work was too arduous for Mr. Hopson and that he was in effect just as disabled before the masonry work as he was afterward. Thus, the real issue is whether the trial court was clearly wrong in its factual conclusion that the appellant’s pre-existing back condition was not aggravated to a disabling degree by the routine of masonry labor.

A claimant is entitled to workmen’s compensation benefits if he proves preponderantly that a work-related accident aggravated a pre-existing condition thereby resulting in a disability. McCauley v. Delta Drilling, 377 So.2d 577 (La.App. 3rd Cir.1979). Furthermore, an accident which aggravates or accelerates a preexisting condition is compensable even where disability is not caused by a single or specific incident. Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976). Therefore, Mr. Hopson’s back disability is compensable even though he does not attribute its aggravation to a specific incident provided that he proves that the aggravation was work-related. The trial conclusion that Mr. Hopson’s back condition was not aggravated by his duties as a masonry helper will not be disturbed unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

After reviewing the record we discern no clear error in the trial court’s factual conclusion that Mr. Hopson’s back condition was not significantly • aggravated by his work duties. A physical examination of Mr. Hopson conducted shortly after he left his job revealed no recent or unusual trauma to his back. Also, Mr. Hopson made no complaints to his co-employees or to his job foreman until he took leave from his job. Finally, the medical testimony of two examining physicians, Dr. John McCutchen and Dr. Robert Schwendimann, stated that the causes of Mr. Hopson’s present disability are attributable to the car accident in mid-October of 1982 and not Mr. Hopson’s duties as a mason’s helper. Based on this evidence the trial court concluded that the masonry work was simply too arduous for Mr. Hopson’s back and that no compensa-ble disability resulted from this work. This conclusion is not manifestly erroneous and therefore it will not be disturbed on appeal. Whatever disability from which Mr. Hop-son suffered prior to the car accident on October 14, 1982, is not compensable.

The appellant also argues that the disabilities attributable to the car accident are compensable. Mr. Hopson contends that because the car accident was a predictable result of his employment, his total disability caused by this accident is com-pensable. This argument is without merit. The work-related requirements of LSA-R.S. 23:1031 has been interpreted to require that the disabling accident must occur while the claimant is engaged in the employer’s business and that the necessities of employment reasonably required the employee to be at the place of the accident at the time of the accident. Guidry v. Serigny, 378 So.2d 938 (La.1979). After applying this principle to the facts of this case, we discern no error in the trial court’s judgment that the plaintiff incurred his disabling injuries outside the course and scope of his employment. Mr. Hopson was not pursuing his employer’s business when he was injured nor did Garner Brothers’ business require Mr. Hopson to be at the place of the car accident when it occurred. There was no relationship between Mr. Hopson’s duties as a masonry worker and his trip to the hospital.

For the above reason the judgment is affirmed. The costs of this appeal are to be borne by the plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Clarence JONES, Jr., Defendant-Appellant.
    No. CR83-992.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Lyman S. Gore, Vidalia, for defendant-appellant.
    John Sturgeon, Dist. Atty., John F. Johnson, Asst. Dist. Atty., Vidalia, for plaintiff-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   STOKER, Judge.

Defendant, Clarence Jones, Jr., was charged by grand jury indictment of forcible rape, a violation of LSA-R.S. 14:42.1. After trial before a jury of twelve, defendant was found guilty. He was initially sentenced to imprisonment of forty years at hard labor in the custody of the Department of Corrections, with two years to be served without benefit of probation, parole or suspension of sentence. The State filed a bill of information charging the defendant as a habitual offender under LSA-R.S. 15:529.1. He was found to be a habitual offender and was re-sentenced to imprisonment for eighty years at hard labor in the custody of the Department of Corrections.

No assignments of error were perfected as required by LSA-C.Cr.P. art. 884. Therefore, this court is limited to a review of the record for errors that are discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. LSA-C.Cr.P. art. 920; State v. Jackson, 332 So.2d 211 (La.1976). We have reviewed the record for these errors and find none.

For the above reasons the judgment is affirmed.

AFFIRMED.


author: GAUDIN, Judge.

text:
    STATE of Louisiana v. Leon ROBERTSON.
    No. 84-KA-54.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    John H. Craft, Staff Appellate Counsel, Indigent Defender Bd., Gretna, for defendant-appellant.
    John M. Mamoulides, Dist. Atty., David Loeb, Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
    Before BOWES, CURRAULT and GAU-DIN, JJ.
   GAUDIN, Judge.

Leon Robertson was convicted of attempted armed robbery by a 12-person jury in the 24th Judicial District Court and sentenced to ten years at hard labor. On appeal, he asks this Court “... to examine the record ... for errors patent on its face.”

We have reviewed the entire record, including the trial transcript, and we find no errors patent favorable to appellant. We affirm his conviction.

Robertson was identified as the man who entered a Time Saver store armed with a pistol. Apparently upset because only a small amount of money was available, he struck the female cashier with his gun and shoved her head-first into a plate glass window, shattering it.

The cashier identified Robertson from a photographic lineup and again during the trial. Robertson and his girlfriend testified that they were elsewhere when the crime was committed, but the jury disregarded the alibi defense and convicted Robertson as charged.

Ironically, the only error patent in this case relates to the sentence imposed. The trial judge did not specify that the ten years were to run without benefit of pa role, probation or suspension of sentence, a requirement of any attempted armed robbery sentence. See State v. Patterson, 259 La. 508, 250 So.2d 721 (1971), and State v. Dixon, 442 So.2d 840 (La.App. 4th Cir.1983).

From Dixon:

“It is clear that the sentencing provision of the armed robbery statute specifies that such a sentence is to be imposed ‘without benefit of parole, probation or suspension of sentence.’ R.S. 14:64. Thus, the question becomes whether a sentence for attempted armed robbery must carry the same restrictions. (Emphasis supplied). The Louisiana Supreme Court has concluded that such restrictions (i.e., ‘without benefit of parole, probation or suspension of sentence’) are also required in sentences imposed in cases of attempted armed robbery. State ex rel., Sullivan v. Maggio, 432 So.2d 854 (La.1983), citing State v. Patterson, 259 La. 508, 250 So.2d 721 (La.1971). The Court in Patterson, reasoned that ‘an attempt is a lesser grade of the intended crime’ supra at 722. Furthermore, the Court stated at page 732:
“In the case of ‘attempted armed robbery’ the phrase ‘in the same manner’ means that except for the term of imprisonment, which is specifically provided for, the other aspects of the fine or imprisonment shall be ‘in the same manner’ as provided for armed robbery; that is, ‘at hard labor’ and ‘without benefit of parole, probation or suspension of sentence.’ To hold otherwise would render the words ‘in the same manner’ virtually meaningless, for there is no other provision of the armed robbery punishment to which the attempt punishment can be likened.
“In the instant case, since the defendant was sentenced to 10 years at hard labor with credit for time served, and no mention was made that the sentence was to be served without benefit of parole, probation or suspension of sentence, the sentence is illegally lenient and must be amended.”

The prosecuting attorney did not object to the sentence when it was imposed. In response to the appeal, the prosecution did not, by way of either pleading or brief, call attention to the illegally lenient sentence and formally ask this Court to correct it. Only in oral argument did the State suggest that this Court, under the authority of LSA-C.Cr.Pr. art. 882, as amended by Art 587 of 1984, should make the correction.

Art. 882, as amended, reads:

“An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.
“A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable case by writs of certiorari and prohibition.”

We are mindful of State v. Jackson, 452 So.2d 682 (La.1984), in which the Supreme Court of Louisiana stated that “... it is inappropriate for an appellate court to correct the sentence when the defendant alone seeks appellate review.” Such action by an appellate court, the Supreme Court said, would have a “chilling effect” on the exercise of the right to appeal.

Nonetheless, Art. 882 does give appellate courts the authority to correct an illegally lenient sentence “... on the application of the defendant or of the state.” (Underlining supplied.) The term “application” is not further described, but in the instant case we are not prepared to say that the prosecution has made sufficient “application.”

If the prosecution now seeks correction of the illegally lenient sentence imposed on Robertson, it must first approach the district judge. The Supreme Court in Jackson said:

“Only the prosecution can seek correction of the error, and this should be done by applying first to the trial court, subject to subsequent appellate review.”

Art. 882, too, seems to indicate that an application is necessary, particularly if the two pertinent sentences of the article are read together. Regardless, the prosecution had not made adequate application here; and while we recognize the illegally lenient sentence imposed on Robertson, we are hesitant to correct it without having formally been asked to do so.

The only issue squarely before us, therefore, is whether there are any errors patent favorable to Robertson. There being none, his conviction is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Carl FLORANT.
    No. 84-K-324.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    A. Bruce Netterville, Gretna, for relator.
    Dorothy Pendergast, Asst. Dist. Atty., Gretna, for respondent.
    Before KLIEBERT, GAUDIN and DU-FRESNE, JJ.
   GAUDIN, Judge.

This decree is in response to a directive of the Supreme Court of Louisiana, which remanded the case to this Court “... for briefing and opinion.”

Carl Florant seeks to quash the Bill of Information charging him with possession of talwin because of the time delay between the filing of the bill (April 7, 1981) and his scheduled trial.

Florant’s motion to quash was denied in the 24th Judicial District Court.

We have examined the record and it shows that Florant and his attorney, Stephen Vallot, were in Division “I” of the 24th Judicial District Court on June 8, 1981. The case was continued until the following day, the minute entry showing that Florant and Mr. Vallot were orally notified to appear on June 9.

The June 9 minute entry indicates that Florant and Mr. Vallot were in court for trial, but that, at the request of the prosecuting attorney, the case was again postponed and reset for September 14, 1981.

Subsequently, Mr. Vallot received personal notice of the September 14, 1981 trial date. Notice was sent to Florant, too, and the process server’s return is in the record. The front side of the return shows that Florant was in Parish Prison; the reverse side shows that the deputy received the notice on June 16, 1981 and personally served it on Florant. The deputy did not indicate the date service was made, but he signed the return in the proper place if Florant had been personally served. The printed wording above the deputy’s signature denotes personal service.

On September 14, 1981, Mr. Vallot appeared in court but without his client. He filed a motion saying “... that he wished to withdraw as counsel of record for defendant and withdraw from this cause in that he has not seen nor heard from defendant since June 8, 1981...”

Because Florant was absent, an attachment for him was issued. When deputies attempted to locate Florant at his Marrero, Louisiana address, they were unsuccessful.

Florant remained at large until February 10, 1983, when he was again arrested for a narcotics violation. On September 26, 1983, Florant and a new attorney, Philip O’Neill, appeared in Division “I”. The previously issued attachment was marked satisfied, and trial again scheduled, this time for December 5, 1983.

Florant filed a series of motions; and then, on June 7, 1984, filed a motion to quash the Bill of Information "... due to expiration of time limitations.”

Appellant relies on LSA-C.Cr.P. art. 578, which reads:

“Except as otherwise provided in this Chapter, no trial shall be commenced:
‘(1) In capital cases after three years from the date of institution of the prosecution;
‘(2) In other felony cases after two years from the date of institution of the prosecution; and
‘(3) In misdemeanor cases after one year from the date of institution of the prosecution.
‘The offense charged shall determine the applicable limitation.’ ”

The trial judge, in deciding that two years had not run, for Art. 578 purposes, obviously did not count the months between September 14, 1981, when the attachment was issued, and February 10, 1983, when Florant was arrested. If Flo-rant, for Art. 578 purposes, was given credit for the five months from April 7, 1981 to September 14, 1981, and the months between February 10, 1983 and December 5, 1983, two years still had not expired.

Only if the time between September 14, 1981 and February 10, 1983 was counted could Florant’s motion to quash have been valid, and we cannot say that the district judge erred when he failed to give Florant credit for these months.

When a statutory time limitation has set in, the State has the burden of showing an interruption sanctioned by law. State v. Guidry, 395 So.2d 764 (La.1981). Here, the prosecution met this burden by showing (1) the attachment following Flo-rant’s failure to appear on September 14, 1981 and (2) the subsequent but futile attempt to locate him at his residence.

The trial judge properly denied the motion to quash. Accordingly, Florant’s writ to this Court is denied.

WRIT DENIED.

      . LSA-R.S. 40:967, a felony punishable by imprisonment with or without hard labor for not more than five years and a fine of not more than $5,000.00.


author: GRISBAUM, Judge.

text:
    STATE of Louisiana v. Eddie J. NAQUIN.
    No. 84-KA-103.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.

      John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
    Martha E. Sassone, Gretna, for defendant-appellant.
    Before KLIEBERT, CURRAULT and GRISBAUM, JJ.
   GRISBAUM, Judge.

Defendant, Eddie J. Naquin, was charged by bill of information with attempted forcible rape in violation of LSA-R.S. 14:27, 14:42.1. On July 13, 1983, the defendant was arraigned and entered a plea of not guilty. Trial before a 12-person jury commenced August 24, 1983. The following day, the jury returned a verdict of guilty as to the offense charged. Naquin was subsequently sentenced to serve a term of 20 years imprisonment at hard labor with the first year to be without benefit of parole, probation, or suspension of sentence. From the conviction and sentence, the defendant now appeals citing a single assignment of error.

FACTS:

At approximately 9 o’clock p.m. Saturday, May 14, 1983, the victim was walking along Avenue C in Westwego when she was grabbed from behind and was told, “shut up or I’ll kill you because I’ve got a gun.” The assailant threw the victim to the ground and struck her several times about the face, blackening both eyes and bruising her right cheek and temple. He ripped her pants and undergarments from her and began to remove his own at which time an occupant of a nearby apartment came outside and observed the man on his knees under a nearby streetlight. As the occupant called to her husband to witness what she was seeing, the man turned toward her and began to get up from his crouched position. As he began to run away, the witness and her husband observed the woman was naked from the waist downward, and the husband gave chase to the assailant but broke off the pursuit when the subject turned on him and indicated he was in possession of a weapon.

Patrolman Charles Adams, in response to the dispatch regarding the sexual assault, arrived on the scene at approximately 9:17 p.m. He broadcast a description of the wanted subject. Officer Firman, who was working a detail at a wedding reception two blocks away remembered that a subject matching the broadcast description had been at the reception earlier. Firman was able to discover the identity and address of the suspect from guests at the reception hall, and upon Naquin’s return home, he was arrested and identified at trial as the attacker by the victim and the two witnesses.

ASSIGNMENT OF ERROR ONE:

In his sole assignment of error, the defendant contends that because of error patent on the face of the record, his conviction and sentence should be reversed.

LSA-C.Cr.P. article 920 provides:

The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

We have thoroughly inspected the pleadings and proceedings in the record on appeal, and our inspection has failed to reveal any errors patent on the face of the record.

CONCLUSION:

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    Joseph R. EVANS, individually, and on Behalf of the Minor, Laura Evans, and May M. Evans v. Denis O. NEWTON, Ambassador Insurance Co., and State Farm Mutual Automobile Insurance Co.
    No. 84-CA-250.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Clarence F. Favret, III, New Orleans, for plaintiff-appellant.
    Lobman & Carnahan, Burt K. Carnahan, Metairie, for defendant-appellee.
    Before BOUTALL, CURRAULT and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is a personal injury case resulting from an automobile accident in a shopping center parking lot. The plaintiffs-appellants, Joseph Evans (individually and on behalf of his minor child, Laura,) and May Evans, devolutively appeal from a judgment (incorporating a jury trial verdict) finding May Evans 50 percent at fault and awarding to her and her husband medical expenses against State Farm of $4091.38 thereby entitling them to a judgment of $2045.69. We amend and affirm.

Two issues are presented:

(1) Whether the jury erred in finding the plaintiff negligent (50 percent); and

(2) Whether the jury abused its “much discretion” in not awarding plaintiff general damages.

The facts surrounding the legal cause of the accident are in dispute. Ms. Evans testified to the following events which preceded the accident:

I started my car up and went into the driving lane... started driving towards Transcontinental. He was crawling very, very slowly ... the fire lane. There was a lady in the truck with him. Well, I was driving very slowly and he kept creeping, stopped, hesitated a moment, and he continued and I kept going very slow ... because I didn’t know exactly where the truck was headed for ... He continued straight up to Eckerd’s and I’m still traveling going towards Transcontinental and when he got by Eckerd’s he’s here ... and all of a sudden he just swerved into the right lane and hit me, I mean he turned left and hit me on the right side of my car ... there was no signal. I looked at my little girl ’cause she hit the dash on her head, I hit the uh my head hit the wheel steering wheel and then I got out and said I was going to call the cops, the police at least ... my knee at the top here hit the steering, I mean the dashboard.

Whereas Mr. Newton testified to the following:

... [he was] progressing towards Eck-erd’s ... when I got in front of Winn-Dixie I had to slow down because of the people coming through with carts and stuff ... when I was clear to travel I progressed down towards Eckerd’s. I was not accelerating when I was slowing down. My truck was idled high enough where I did not have to move the accelerator and all I had to do was ride my brake and my idle would keep me going. I was probably going a little bit over zero miles an hour. I got right about the edge of Eckerd’s ... I started to turn into the parking spot ... when the Evans’ vehicle raced across in front of my vehicle and I slammed on my brakes ... as she slammed on her brakes so severely that her head almost hit the steering wheel ... the little girl in the front seat slammed into the dashboard and the little girl in the backseat almost hit the floorboard ... On my car I have extra-wide mirrors v/ith the peripheral vision I would have noticed another vehicle trying to pass, trying to attempt to pass me to the left. I had no warning at all except when I started to turn her vehicle appeared in front of me. It appeared that she was speeding to try to get ahead of me before I could turn.

As an aid in exercising our standard of review, our circuit in Baach v. Clark, 442 So.2d 514, 517 (La.App. 5th Cir.1983) embraced the method outlined in Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821, (1970) in determining legal fault by first determining whether the act complained of was a substantial factor in causing the accident, then by determining what duty was imposed and whether the risk of harm suffered and created by a failure of that duty was a risk for which the statute intended to offer protection, and, finally, by determining whether there was a breach of that duty. The Pierre court further stated that every act leading up to an accident is not a cause-in-fact; to be deemed a legal cause, the act must be a substantial factor without which the accident would not have occurred.

Before applying the foregoing methodology of the “duty-risk” analysis, we are further guided by the Baach decision wherein it is stated:

It is firmly established that the operator of a following vehicle is required to keep his car under control, to observe closely a forward vehicle, and to follow at a safe distance. As mentioned earlier, if a rear end collision occurs, the following motorist is presumed negligent. In order for the following who collides with a preceding vehicle to exculpate himself, he must show that he closely observed the forward, that he followed at a safe distance under the circumstances, or that the driver of the lead vehicle negligently created a hazard which the following vehicle could not reasonably avoid.

In light of the foregoing, the ultimate question before us is whether Mr. Newton, the driver of the lead vehicle, negligently created a hazard which Ms. Evans, the driver of the following vehicle, could not reasonably avoid. On Mr. Newton’s own admission and his testimony which was elicited at trial, we know he failed his legal duty to look into his rearview prior to making his left turn. Whereas Ms. Evans testified she was following at the same (slow) speed and was reluctant to pass without first ascertaining Mr. Newton’s intentions. She also testified that she then pulled past the truck driven by Mr. Newton only after satisfying herself that he was going to continue “creeping” along the curb. From these record facts, it appears from the testimony and evidence Ms. Evans met her duty of due diligence in the operation of her ear and was not put on notice of Mr. Newton’s intention to make a left turn. However, the jury apparently disbelieved her testimony and believed Mr. Newton’s testimony that Ms. Evans suddenly zoomed in front of him. Therefore, the jury apparently reasoned, and we agree, that even though Mr. Newton’s negligence created a hazard but for Ms. Evans “zooming in front of him” she could have reasonably avoided the accident. Ms. Evans’ act of speeding was a substantial factor in causing the accident and a fact which demonstrated she violated her duty in her capacity as the “following vehicle.”

Recognizing the trier of fact’s finding as to the percentage of fault is factual, such a determination will not be disturbed on appeal unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find no manifest error in this jury’s factual determination and application of the applicable law regarding the apportionment of fault, and therefore, it did not err in finding the plaintiff comparatively negligent to the extent of 50 percent.

Regarding the question of whether the jury abused its much discretion in not awarding the plaintiff general damages after finding special damages, our scope of appellate authority is limited; however, we may amend a district court judgment by awarding only those damages which would be reasonably within the discretion of the lower court. Reck v. Stevens, 373 So.2d 498 (La.1979). The Reck court further stated that it is only after articulated analysis of fact discloses an abuse of discretion that an award may on appellate review, for articulated reasons, be considered either excessive or insufficient. Additionally, as clarified in Odendahl v. Wild, 418 So.2d 36 (La.App. 4th Cir.1982), it is stated that although a jury has much discretion in assessing damages, it errs as a matter of law in awarding no general damages for objective injuries. Odendahl states the rule as follows:

It is error of law to award special damages for medical expenses and nothing for personal injury, pain, and suffering. When the trier of fact, either judge or jury, itemizes damages for medical expenses, as in this case, and omits damages for personal injury, pain, and suffering, the error of law is apparent. Roy v. Schneider, 367 So.2d 1314 (La.App. 4th Cir.1979); Robinson v. General Motors Corporation, 328 So.2d 751 (La.App. 4th Cir.1976).

In considering the damages to be awarded, we shall review Ms. Evans’ pertinent medical history. Plaintiffs, May Evans, and her daughter, Laura Evans, were injured in the January 16, 1981 accident and after the accident, plaintiffs initially saw Dr. Gaybaur, their family physician, who eventually referred Ms. Evans to Dr. Ken-nerth E. Vogel, a neurosurgeon. Over a period of two years, she saw Dr. Vogel on five different occasions. Initially, the doctor’s examination revealed mild limitation of motion in the neck and low back with involuntary muscle spasms on the right, and she was placed on a treatment plan of physical therapy, heat and massage, and medicine for pain. In November 1982, she was not improving and was experiencing discomfort. At that time (some 22 months after the accident) Dr. Vogel performed a CAT scan. Because the test revealed an abnormal disc (Dr. Vogel also found with a pin-prick test mild numbness of the little toe of her foot), Ms. Evans elected to have more tests and treatment in the hospital. These tests, a discogram and an anthro-gram, were described as very painful requiring many needles to be struck through the back and dyes injected. In February 1983 (some 13 months after hospital treatment) Ms. Evans had responded partially to treatment but still complained of headaches, low backaching, right leg pain, and leg numbness. (She states that her leg freezes up periodically when she is driving, and she cannot lift her foot from the accelerator.) On May 3, 1983, there were no remaining objective symptoms, only complaints not verifiable on an objective basis, and she was again placed under Dr. Gayb-aur’s care. Dr. Vogel’s final diagnosis was chronic cervical and lumbar sacral strain and prognosis plaintiff had reached maximum improvement. Whatever symptoms she still had would persist. On the other hand, defendant, State Farm, introduced into the record the report of Dr. Richard Levy, who had been hired by them to examine Ms. Evans and whose examination revealed no present neurological disability associated with the accident.

Ms. Evans testified that she tires easily, cannot do her household chores, and her marital relationship is strained. These symptoms were corroborated by her husband, Joseph Evans, and the daughter. It was their testimony that prior to the collision Ms. Evans was an efficient housekeeper, good mother and wife, did such things as the mowing, heavy housecleaning, shopping, and chauffeuring of the children to their activities.

Considering the record facts and our jurisprudential guidelines, we find the jury abused its much discretion in not awarding Ms. Evans general damages after awarding her special damages. Accordingly, since Ms. Evans has proven personal injury, a chronic cervical and lumbar sacral strain that caused pain and suffering for an approximate 28-month period, we award $10,000 damages for those injuries thereby entitling Ms. Evans to a judgment of $5000.

For the reasons assigned, we amend the trial court’s judgment to include $5000 as general damages. Otherwise, we affirm all other aspects of the judgment and assess costs of this appeal against the appel-lee.

AMENDED AND AFFIRMED.


text:
    Lucille MILLET v. CONTAINER CORPORATION OF AMERICA.
    No. 84-CA-263.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Writ Denied Jan. 7, 1985.

      Becnel, Landry & Becnel, LaPlace, Daniel E. Becnel, Jr., Reserve, for plaintiff-ap-pellee.
    Hulse, Nelson & Wanek, Craig R. Nelson, New Orleans, for defendant-appellant.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   GRISBAUM, Judge.

This is a worker’s compensation dispute. The trial court awarded the plaintiff, Lucille Millet, 100 weeks of disability payments in the amount of $163 per week under our Louisiana Revised Statute 23:1221(4)(p), worker’s compensation for an injury sustained in the course and scope of her employment with the defendant, Container Corporation of America. In addition, the court awarded the plaintiff attorney’s fees of $444, finding the defendant arbitrarily and capriciously refused to pay timely the plaintiff’s medical expenses. From this judgment, the defendant appeals. We amend and affirm.

The facts of this matter are well-known to all parties.

Two issues are presented:

(1) whether the employer’s delay in paying the plaintiff’s medical bills was arbitrary and capricious; and

(2) whether the trial court erred in finding the plaintiff suffered a serious, permanent impairment of a useful physical function.

With regard to the issue of whether the employer’s delay in paying the plaintiff’s medical bills was arbitrary and capricious, the following record facts are pertinent: The plaintiff alleges she had been working in pain when on July 30, 1982 she filed suit against the defendant requesting worker’s compensation payment. She continued working until April 14, 1983 and was immediately thereafter hospitalized by Dr. John Schuhmacher for evaluation and, depending upon the results of the testing, for surgery. Admitted into evidence is a letter dated March 28, 1983 from the plaintiff’s attorney to the defendant’s attorney and attached thereto is a copy of Dr. Schuh-macher’s medical report of his treatment of the plaintiff. Dr. Schuhmacher’s report stated Ms. Millet had been symptomatic for one year and needed hospital evaluation. A subsequent letter from the plaintiff’s attorney to the defendant’s attorney, dated April 29, 1983, requested payment of Dr. Schuhmacher’s bill of $2025 for surgery performed on a ruptured disc. In addition, another letter, dated May 3, 1983, requested payment of hospital-related charges. Yet another letter, dated May 17, 1983, was sent to the defendant’s attorney requesting Dr. Schuhmacher’s bill be paid. The record reflects the defendant did not pay Dr. Schuhmacher’s fee until September of 1983, approximately two months subsequent to verification by Dr. Schuhmacher of the plaintiff’s work-related injury.

Our statutory law in Revised Statute 23:1201.2 provides that claims must be paid within 60 days after receipt of written notice. Clearly, more than 60 days has transpired since the plaintiff’s first written request for payment of Dr. Schuhmacher’s bill.

Louisiana Revised Statute 23:1201.2 is a penalty provision which is to be interpreted stricti juris and should be imposed only in those instances in which the facts negate probable cause for nonpayment. Smith v. Borden, 413 So.2d 701 (La.App. 4th Cir.1982); Battiste v. Frey, 360 So.2d 611, 613 (La.App. 4th Cir.1978). A compensation insurer cannot continue in a refusal to pay benefits if it becomes reasonably apparent, even after suit is filed, from all available information, that the claimant is clearly entitled to benefits. See, Battiste v. Frey, 360 So.2d 611, 613 (La.App. 4th Cir.1978). We find in the present case there was no reasonable dispute, from all available information, regarding whether the claimant was clearly entitled to medical payments. The defendant was given adequate notice by the plaintiff, and the information was verified by Dr. Schuhmacher. According to the record, the defendant had no competent medical evidence indicating in any way that the plaintiff’s surgery was not resulting from the work-related injury.

In addressing the question of the type of disability and the schedule of payments thereto, the appellant asserts that the award to the plaintiff of the maximum benefits for a serious, permanent impairment is unreasonable and not supported by the evidence. The appellant further submits that on the basis of - all the medical testimony it would have been reasonable for the court to award benefits up to the time when the plaintiff is discharged by her treating physician.

The trial court in its judgment dated February 17, 1984 awarded Lucille Millet compensation benefits in the full amount of $163 per week, effective April 14,1983, less credit for any weekly benefits paid since said date or $16,300 in weekly benefits, including interest from date of demand until paid. Additionally, in its reasons for judgment, the trial court stated its award was subject to modification on April 14, 1985 under the provisions of LSA-R.S. 23:1331.

The ultimate question before us is whether this recovery should be awarded for temporary, total disability or for the permanent loss of a physical function pursuant to Revised Statute 23:1221(4)(p). The defendant contends the trial court’s findings as to the extent of the plaintiff’s disability were clearly erroneous. We find, however, the plaintiff’s testimony as to her injury and ability to work to the extent necessary to keep her job, as well as Dr. Schuhmacher’s testimony regarding the extent of her disability, are uncontradicted. The earlier report made by doctors almost a year previous to the time of Dr. Schuh-macher’s report deal with the patient’s condition at that time and do not contradict Dr. Schuhmacher’s diagnosis of the patient’s later developing symptoms.

The question, then, is not one of factual determination but rather a legal question. The trial court found disability under Revised Statute 23:1221(4)(p), however, the evidence fails to meet the requirements of this provision which allows recovery only “where the usefulness of a physical function is seriously and permanently impaired.”

As we evaluate the medical testimony and the plaintiffs testimony and work history, we conclude the plaintiff has not proven her back strain has produced such a loss of a physical function. We note particularly that Dr. Schuhmacher testified the plaintiff would be able to return to her previous job within two to four months from the time of trial.

We find, as the trial court did, the disability began April 14, 1983. We amend the trial court judgment in only one respect: The plaintiff is entitled to compensation based upon temporary, total disability during the period of such disability [LSA-R.S. 23:1221(1)], rather than serious and permanent' impairment of a physical function.

For the reasons assigned, we amend the trial court’s judgment relating to compensation in accordance with the reasons herein stated; in all other respects, we affirm the judgment of the trial court. All costs of this appeal are to be assessed against the appellant.

AMENDED AND AFFIRMED.

      . On appeal, the defendant alleges the plaintiffs claim for worker’s compensation benefits was brought prematurely. The defendant, however, stipulated at trial the issue to be litigated before the trial court was whether worker's compensation benefits were owing the plaintiff during the period beginning with April of 1983. Thus, the defendant agreed to submit this issue to the trial court for litigation, and the defendant will not be heard now to complain that the plaintiff filed her petition prematurely.


author: CURRAULT, Judge.

text:
    Martin L. MAYEUR v. AMERICAN CYANAMID COMPANY and Insurance Company of North America.
    No. 84-CA-207.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.

      Dale W. Poindexter, New Orleans, for plaintiff-appellee.
    Avery T. Waterman, Jr., McGlinchey, Stafford, Mintz, Cellini & Lang, P.C., New Orleans, for defendant-appellant.
    Before KLIEBERT, CURRAULT and GRISBAUM, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “C”, wherein the Honorable Joseph F. Gre-fer rendered judgment in favor of plaintiff and against defendants granting plaintiff worker’s compensation benefits. We affirm.

Martin Mayeur underwent a bilateral L-4-5 discectomy on October 30, 1975, performed by Dr. John Schuhmacher. He was discharged on February 2, 1976 as fully recovered and able to work.

Mr. Mayeur subsequently began his employment with American Cyanamid in August, 1978. On September 9, 1981, while working with an acid-loading arm, he suffered an injury which was diagnosed on October 26, 1981 by Dr. Schuhmacher to be an acute lumbrosacral strain. Mayeur was treated conservatively and discharged for work on November 16, 1981.

Mr. Mayeur’s work history was uneventful until Friday, October 29, 1982. On this date, he reported to work at 6 a.m., relatively healthy and pain-free. He then worked his regular twelve-hour shift as an “acid loader” during which he used a loading arm to fill two truck tanks. After work, Mayeur returned home to a quiet evening, eventually retiring at approximately 10:30 p.m.

The next morning, Saturday, Mr. Mayeur awoke with pain in his right thigh that he described as a hamstring pull. He restricted his activities until Tuesday, November 2, 1982, when he was to report back to work at 6 p.m. However, during that day prior to going to work, Mayeur phoned Dr. Albert, American Cyanamid’s plant physician, and requested that medication be left at the plant’s gate to help alleviate his pain. Upon reporting to work for the night shift, Mayeur picked up the medication and went on to work. That night, plaintiff told his immediate supervisor, Rene Claudet, that he was experiencing pain but continued to work.

Continuing to have pain, Mayeur went to see Dr. Marshall Book, an orthopedic surgeon who saw plaintiff twice: November 9, 1982 and November 15, 1982. Dr. Book’s diagnosis was a herniated nucleus pulposus (disc) with sciatica. Mayeur was treated conservatively but did not respond. Because the pain became progressively worse, he called but did not report to work on November 16, 1982.

Mr. Mayeur was then seen by Dr. Schuh-macher in the emergency room of East Jefferson Hospital on November 20, 1982. He was immediately admitted and treated with traction, physical therapy and medication for a possible recurrent lumbar disc. However, after only improving minimally, a lumbar myelograph was performed and the findings of that myelograph were consistent with a ruptured L-5, S-l disc. So on December 2, 1982, a lumbar discectomy was performed by Dr. Schuhmacher with a finding of a ruptured disc and free frag-merit at L-5, S-l on the right. Mr. May-eur’s postoperative recovery went extremely well and he was subsequently discharged on the fourth postoperative day.

As of March 14, 1983, Dr. Schuhmacher was of the opinion that Mr. Mayeur had reached maximum medical improvement and discharged him with a 15-20 percent permanent, whole-man physical disability rating, but being able to return to gainful employment as of March 21, 1983, with limitations which required no lifting, pulling or pushing of weights in excess of 50 to 75 pounds. Mayeur was not taken back at American Cyanamid and was not paid compensation because, during the course of this episode, Mayeur had failed to relate his injury to his work.

Martin Mayeur then filed a worker’s compensation suit against his former employer, American Cyanamid Company, and their compensation insurer, Insurance Company of North America. A trial on the merits was held September 12, 1983, resulting in judgment in favor of plaintiff and against defendants, granting plaintiff worker’s compensation benefits for a work-related injury producing temporary total disability during the period from November 16, 1982 through March 21, 1983, and for partial permanent disability commencing March 21, 1983. On January 9, 1984, defendants’ motion for a new trial was denied and all parties then appealed.

Defendants are asserting as their only specification of error that the trial court erred manifestly in finding that the plaintiff, Martin L. Mayeur, sustained a new employment accident that is compensable under the Louisiana Worker’s-Compensation law while in the course and scope of his work with American Cyanamid Company on October 29, 1982.

Defendants’ primary argument on appeal is that plaintiff failed to establish that he had indeed suffered any work-related “accident” as required by the Louisiana Worker’s Compensation Act. More specifically, defendants complain that plaintiff’s version of any purported accident is lessened because plaintiff failed to report any accident to his supervisor, Rene Claudet, and further did not relate his pain to an on-the-job accident to Dr. Albert, the plant physician, when plaintiff sought medication from him. Furthermore, defendants attack plaintiff’s claim because when plaintiff filed his claim with American Cyanamid’s group health insurer, he indicated that his injury was not work-related.

A plaintiff in a worker’s compensation case must establish causation by a preponderance of the evidence which, when taken as a whole, shows that a causal connection between the employment activity and the injury is more probable than not. Wyman v. West Jefferson General Hospital, 416 So.2d 606 (La.App. 5th Cir.1982). However, it is not necessary that plaintiff prove his disability resulted from a sudden, unexpected traumatic event, i.e., accident. Plaintiff need only show by a preponderance of the evidence that his disability was caused by a work activity which can be gradual and progressive in nature. Loyd v. Ecko Fabricating Company, Inc., 433 So.2d 1063 (La.App. 5th Cir.1982). More specifically, in order to recover, it is only necessary for plaintiff to show that his disability was caused or precipitated by his usual and customary activities or other factors directly connected with his employment. Flood v. Hub Auto Parts, Inc., 425 So.2d 941 (La.App. 4th Cir.1983).

The manifest error rule is applicable to the appellate review of worker’s compensation cases and such cases will 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 such factual findings, unless shown to be clearly wrong. Guerrero v. Tico, 436 So.2d 1237 (La.App. 5th Cir.1983); Perrilloux v. Godchaux-Henderson Sugar Co., Inc., 436 So.2d 1325 (La.App. 5th Cir.1983).

The trial court, in its well articulated reasons, found that plaintiff was “involved in a work-related activity and was injured as a result of that activity.” The trial court, basing its judgment on the credibility of plaintiff and supportive testimony of the doctors, concluded:

“In the case at bar, the Court must rely heavily upon the claimant, Mr. May-eur, to establish the occasion on which he was injured. Louisiana jurisprudence has recognized that the testimony of the plaintiff standing alone may be sufficient to establish the happening of an accident provided his statements are supported by the surrounding circumstances. (Citation omitted). Two essential elements must be present for acceptance of the claimant’s testimony as persuasive. First, there must be no other evidence sufficient to discredit or cast serious doubt upon the claimant’s version of the event. And, second his testimony must be corroborated by the circumstances following the event.
“No evidence was adduced at trial sufficient to cast suspicion upon Mr. May-eur’s account of his October 29, 1982 incident at work. Although Mr. Mayeur did not file a formal complaint of injury he did discuss his physical discomfort with his co-worker, Mr. Claudet, soon after the incident. Mr. Claudet testified that he saw Mayeur limping, and that subsequent to the October 29, 1982 shift Mr. Mayeur did not continue to work as he had prior to that date. Furthermore, Mr. Mayeur is deemed to be a credible witness. There were no inconsistencies in his testimony. The fact that Mr. May-eur did not specifically inform the doctors that his injury was work related is not conclusive that it was not. It is the opinion of this Court that due to the nature of the injury, Mr. Mayeur was uncertain and unaware of the linkage between his injury and his work activities. The conclusion drawn by Dr. Albert that since the injury was not reported according to company policy, it was not work related, does not sound in medical principle and was not considered probative on the issue.
“In the instant case, Mr. Mayeur’s testimony is also, corroborated by the testimony of Dr. Book and Dr. Schuhmacher. Both testified that the activities in which Mr. Mayeur was engaged in could cause such resulting injury. On this point, the Court must also look to another factor in determining plaintiff’s case. Specifically, Mr. Mayeur’s past medical history. Louisiana Courts have firmly established that the employer must take the worker as he finds him. The worker who is unusually susceptible to disability is entitled to the full protection of the compensation statute, even though the same accident would have caused little or no harm to a healthy worker. Mr. Mayeur’s medical history reveals prior experiences of back problems. Specifically, he had a laminectomy which was performed by Dr. Schuhmacher approximately 6 years before this incident and the back strain of September 9, 1981, which was deemed to be a work related injury at that time. Even though neither doctor related Mr. Mayeur’s present disability with the incident on September 9, 1981, the facts do indicate a weakening and predisposition to injury.
“The surrounding circumstances in the instant case substantiate petitioner’s claim as to the occurrence of an ‘accident’ under the Workmen’s Compensation Statute. Furthermore, the evidence reveals that petitioner was in fact injured and that said disabling injury was caused by petitioner’s work-related activities. Accordingly, petitioner has sustained his burden of proof by a preponderance of the evidence.”

In reviewing the instant case in its entirety, although appellant argues reasonable minds could conclude differently, we find the trial court has made a sound evaluation of credibility which is amply supported by a judicious factual basis. Accordingly, the judgment appealed is not manifestly erroneous (clearly wrong).

Plaintiff cross-appealed, asserting that the district court below erred in holding that plaintiff’s claim for the September 9, 1981 accident had prescribed. This contention is meritless.

The instant action was filed in May, 1983, well over 20 months after the lumbar strain occurred on September 9, 1981. That incident has prescribed on its face especially in light of the fact plaintiff was treated, released fully recovered and compensated by defendants.

Accordingly, for the above stated reasons, the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.


text:
    WM. B. COLEMAN CO., INC. v. George ACKEL, Jr. d/b/a Beaux & Belles.
    No. 84-CA-195.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Peter D. Coleman, New Orleans, for plaintiff-appellant.
    Robert G. Creely, Amato & Creely, Gret-na, for defendant-appellee.
    Before KLIEBERT, CURRAULT and GRISBAUM, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “D”, wherein the Honorable Walter E. Kol-lin rendered judgment in favor of defendant, George Ackel, Jr., and against plaintiff, William B. Coleman Company, Inc., dismissing plaintiffs suit. We affirm.

Beaux & Belles, Inc., a retail business selling children’s clothing, began its corporate existence on December 27, 1965. A supplier for that business was William B. Coleman Company, Inc. (hereinafter Coleman). During 1981, however, all of Beaux & Belles’ stock was purchased by Messrs. George Aekel, Sr. and George Ackel, Jr.; each a fifty percent shareholder with George Ackel, Jr. president. The existing business was being conducted at a store in Airline Park Shopping Center.

In October, 1981, a salesman of Coleman called upon Beaux & Belles’ manager, Renee" Ackel, former wife of George Ackel, Jr., in an attempt to make a sale. As the Ackels were new owners, Coleman required a personal financial statement which was obtained from Renee Ackel. The receipt of this statement by Coleman was a prerequisite for Beaux & Belles, Inc. to continue doing business with Coleman.

Renee" Ackel placed a rather large order with Coleman’s salesman. Subsequently, seemingly due to delivery disputes, payment by Beaux & Belles, Inc. was not forthcoming. When payment became seriously overdue, suit on an open account was filed by Coleman and against George J. Ackel, Jr. [hereinafter Ackel], individually, for the overdue debt.

This matter went to trial on September 22, 1983. The trial judge narrowed the issue to “whether or not George Ackel, Jr., individually, contracted for and received the clothing merchandise.” In concluding that plaintiff failed to prove that it contracted with George Ackel, Jr., individually, the court dismissed plaintiff’s suit.

Plaintiff has appealed, asserting the following specifications of error:

that (1) the trial court erred in finding appellant failed to prove it contracted with George Aekel, Jr., individually, for the sale of clothing merchandise; and that

(2) assuming the trial court’s ruling that plaintiff failed to prove it contracted with George Ackel individually means the plaintiff contracted with the corporation; the trial court erred in failing to disregard the corporate entity and hold George Ackel, Jr. liable.

The trial court is granted much discretion in its determination of facts and its conclusions will not be disturbed unless the record shows that manifest error has been committed. Canter v. Koehring Company, 283 So.2d 716 (La.1973). “Manifest error” means the trial judge must be “clearly wrong” in his resolution of the case. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

There is no specific testimony or evidence that shows Ackel either ordered the particular merchandise or was in any way connected with the purchases at issue. Ackel testified he had no hand in the daily operations of Beaux & Belles, Inc., but that Renee Ackel was in charge of all managerial duties.

Mr. Dave Gares, the Coleman salesman who called upon Renee" Ackel, testified that he had not met Mr. Ackel, but conducted business with Renee". He further testified that at no time did he inquire about, nor was he ever concerned with, whether or not he was dealing with an individual or a corporation. In fact, he testified that it was his assumption the Ackels owned the business and that he thought he was selling directly to Renee Ackel individually, not Mr. Ackel.

The required personal financial statement obtained from Renee" Ackel clearly indicates on its reverse side that the business, Beaux & Belles, Inc., was indeed a corporation as Mr. Ackel listed his shares of that corporation as an asset. Mr. Gares testified though that he did not even bother to check any of the information given on that credit application because he assumed someone else with Coleman would do so.

A creditor who sues on an open account has the burden of proving that defendant, alleged to the debtor, contracted for the sales on open account. Frank Brigsten, Inc. v. Alpha Builders, Inc., 351 So.2d 777 (La.App. 4th Cir.1977). A full review of the record does not show the trial court was clearly wrong in its determination that plaintiff failed to prove it contracted with defendant individually.

Alternatively, appellant argues the trial court erred in failing to pierce the corporate veil to find defendant individually liable. Piercing the corporate veil was never presented by the pleadings nor made an issue at trial. Issues not properly raised in trial court will not be considered on appeal. Uniform Rules: Courts of Appeal, Rule 1-3, State Farm Mutual Automobile Insurance Company v. Handy, 410 So.2d 323 (La.App. 4th Cir.1982); Succession of Villere, 411 So.2d 484 (La.App. 4th Cir.1982).

Accordingly, for the above stated reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


author: CURRAULT, Judge. GAUDIN, Judge,

text:
    Luke DiMATTIA v. GULF SOUTH BEVERAGE, INC., the Allstate Insurance Company and Earl White.
    No. 84-CA-75.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Writ Denied Jan. 7, 1985.

      Samuel Richard Exnicios, Liska, Exnicios & Numgesser, New Orleans, for plaintiff-appellee.
    Normand F. Pizza, Reuter, Reuter, Reu-ter & Pizza, New Orleans, for defendant-appellant.
    Before BOUTALL, CURRAULT and GAUDIN, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “A”, for the Parish of Jefferson, wherein the Honorable Roy L. Price rendered judgment in favor of plaintiff and against defendant in the full sum of Four Hundred Twenty-Four Thousand, Fifty-Six Dollars and Twenty-Five Cents ($424,056.25). We affirm.

On March 5, 1981, Luke DiMattia was a passenger in an automobile that was struck from the rear by a truck owned by Gulf South Beverages, Inc. and driven by their employee, Earl White. Mr. DiMattia, complaining of back and neck pain, was seen that day by Dr. Joseph Rauchwerk who sent DiMattia to East Jefferson Hospital for a battery of X-rays. After conducting his examination, Dr. Rauchwerk concluded that DiMattia’s subjective complaints were consistent with Grade 1 myofascial lumbo-sacral strain superimposed on a preexisting degenerative joint disease and degenerative osteoarthritis of the lower lumbar spine. DiMattia was treated conservatively until March 26,1981, when he did not appear for a scheduled visit. Dr. Rauchwerk considered DiMattia to have obtained full benefit from the treatment and thus recovered.

However, because DiMattia felt he was not responding to treatment as he should, he sought further medical attention from Dr. Florence Jones. Dr. Jones first saw DiMattia on March 30, 1981 and began treating him conservatively. DiMattia had responded to treatment such that on June 1, 1981, Dr. Jones released him to return to T.L. James & Company, Inc. where he was employed as an auto mechanic. However, on June 3, 1981, DiMattia returned to her office complaining of discomfort in the right posterior neck near the skull after lying on his back on a pad while working under cars. Dr. Jones noted that, while there was some tenderness in that area, there were no corresponding muscle spasms or limitation of motion. Dr. Jones advised DiMattia this would probably clear with the passage of time and to return if he had further problems. DiMattia did not return until August 21, 1981, at which time his chief complaint was again the neck soreness described in the June 3 visit. This was DiMattia’s last appointment with Dr. Jones.

DiMattia next sought medical attention from the LaRocca Clinic where he initially saw Dr. Michael E. McCutcheon on September 4, 1981. On physical examination, Dr. McCutcheon found tenderness in and about DiMattia’s neck and lower lumbar spine. X-rays showed right-sided L-5 S-l tropism and segmental instability in the lumbar region between L4-L5 which Dr. McCutcheon believed to be due to degenerative lumbar disc disease. In the neck, Dr. McCutcheon found loss of normal or expected flexion and extension patterns at the C-4-5 motion segment. This, he thought, was indicative of mild cervical spondylosis, an abnormality of the cervical disc.

Dr. McCutcheon saw DiMattia three more times and on the last visit, January 5, 1982, DiMattia had mild complaints of neck pain on both sides of his neck. As DiMat-tia had failed to have his prescriptions filled during the course of his treatment, it was Dr. McCutcheon’s impression that DiMattia’s symptoms were minimal, were not disabling, and that nothing in regard to his condition should keep him from working at his, job with no restrictions. Dr. McCut-cheon believed DiMattia’s pain was only intermittent and that continued visits would not be beneficial because DiMattia had not followed his instructions in regard to the medications. Dr. McCutcheon concluded that DiMattia’s symptoms did not warrant surgery at that time.

DiMattia continued to visit the LaRocca clinic where he was seen by Dr. Bruce Razza for three visits. Then, on February 20, 1982, Dr. Henry LaRocca saw DiMattia in Touro’s emergency room where he was complaining of uncontrollable pain in both his neck and back. DiMattia was admitted to the hospital as soon as there was an available room. On March 25, 1982, Drs. McCutcheon and LaRocca performed a lumbar laminectomy with a fusion, and then on April 1, 1982, Dr. McCutcheon performed a cervical fusion.

Prior to these surgeries, on November 18, 1981, DiMattia filed suit for damages against Gulf South Beverages, Inc., their insurer and driver, Allstate Insurance Company, and Earl White respectively. A trial on the matter was conducted August 6 and 7, 1983. At the beginning of that trial, plaintiff DiMattia dismissed his claims against Allstate Insurance Company and Earl White. Judgment was rendered on July 29, 1983 in favor of plaintiff and against defendant, Gulf South Beverages, Inc., in the full sum of Four Hundred Twenty-Four Thousand, Fifty-Six Dollars and Twenty-Five Cents ($424,056.25).

Defendant has appealed, asserting the following specifications of error:

that (1) the trial judge erred in his conclusions that the plaintiff’s disability was caused by the vehicular accident involving defendant; and that

(2) the trial judge erred in awarding an amount of damages which was excessive and unsupported by the evidence.

In his reasons for judgment, the trial judge stated that he had no problem in finding plaintiff permanently and totally disabled from his injuries incurred as a result of the accident. The trial judge based his conclusion upon the testimony of Dr. LaRocca, “Dr. LaRocca, qualified as an expert in orthopedic surgery testified it was his opinion that the accident of March 5, 1981 caused the pain, suffering, resulting surgical operations, and disability to DiMattia.” The appellant contends that Dr. LaRocca’s statement was taken and used out of context and that the record is totally devoid of any evidence whatsoever to support the trial judge’s conclusion. We disagree.

Plaintiff was seen and treated by Drs. Jones and McCutcheon and both were deposed well before plaintiff’s condition necessitated surgical intervention. Each agreed, at the time they were deposed, that plaintiff had problems with the spine that were either congenital or due to his age and were not incurred as a result of his accident. Plaintiff’s right-sided L-5 S-l tropism was congenital and his unstable lumbar region was due to degenerative lumbar disc disease attributable to arthritic changes and age. However, both agreed that the accident was the direct cause of the aggravation of those preexisting but dormant conditions. Dr. McCutcheon went further to state that the X-ray patterns he identified to be consistent with cervical spondylosis was directly caused by the accident.

Dr. LaRocca’s testimony was in complete harmony with the opinions of Drs. Jones and McCutcheon. While he clearly stated that the plaintiff’s dormant, preexisting conditions were not caused by the accident, Dr. LaRocca believed all of plaintiff’s pain and suffering were directly related to the March 5 accident.

Appellant would have this court construct the facts so that plaintiff’s surgeries were not caused by the accident but rather were the natural result of the ongoing processes already present in plaintiff. Appellant points out that Drs. Jones and McCut-cheon’s findings relate the plaintiffs symp-tomalogy to developmental rather than traumatic causes and notes that the trial court made no mention of the testimony of any physician other than Dr. LaRocca.

Dr. Jones was deposed January 11, 1982 and Dr. McCutcheon, February 5, 1982. These depositions were taken well before plaintiffs condition necessitated surgical intervention; two months and 1 month, respectively. Dr. LaRocca testifying at trial, was the only physician to testify in regard to those surgeries and he clearly stated that he believed that they were caused by the accident.

Appellant tries to convince this court that between plaintiffs last visit with Dr. McCutcheon on January 5, 1982, when he showed only “minimal symptoms” and his admittance to Touro Hospital, some intervening cause occurred which ruptured plaintiffs lumbar disc and necessitated the surgeries. Appellant points to Dr. La-Rocca’s testimony that he could not be one hundred percent sure as to the exact cause of the disc’s rupture as support for his intervening event.

However, the burden was upon appellant to prove the existence of such an event. This he attempted to do when cross-examining plaintiff, but plaintiff could not recall any such event. Dr. LaRocca supported plaintiffs testimony by stating that his notes were void of any mention by plaintiff of a second traumatic event.

It is inescapable that the only physician who testified in regard to the surgeries unequivocally established the March 5, 1981 accident as the cause of the plaintiffs surgeries. Appellant has not demonstrated to the satisfaction of this court that the factual conclusions reached by the trial judge were clearly wrong. Accordingly, under the mandate of Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), we decline to disturb these factual findings.

Next we turn our attention to appellant’s complaint that the amount of damages awarded by the trial court was excessive and unsupported by the record.

In addressing the quantum issues, we recognize that this court has a constitutional duty to review the law and facts particular to each case, thereafter determining whether the record shows clearly that the trial court abused its “much discretion” in awarding damages. La. Const, art. 5, § 10(B); LSA-C.C. art. 1934(3); Thibodaux v. Acme Truck Lines, Inc., 443 So.2d 716 (La.App. 5th Cir.1983). We are also aware that plaintiff is entitled to compensatory damages for all damages suffered directly caused by an accident which is the fault of another. Thames v. Zerangue, 411 So.2d 17 (La.1982).

Appellant argues that the Thirty-Three Thousand, Seven Hundred Eighty-Three Dollars and Eighty-Four Cents ($33,-783.84) awarded in medical damages for surgical procedures was error as those procedures were not caused by the accident. However, as we have already determined that those surgical procedures were causally related to the March 5,1981 accident, the award for the cost of those procedures was not an abuse of discretion.

Appellant secondly urges this court to disallow any award for loss of future wages as such loss was not caused by the March 5 accident. We have, however, already agreed with the trial court that plaintiff’s disabilities were caused by the accident in question, and plaintiff’s loss of future wages are a direct result of those disabilities. Accordingly, there was no abuse of discretion in awarding loss of future wages which are amply supported by the record.

Appellant thirdly asserts that since plaintiff returned to work periodically from June 1, 1981 through February 8, 1982, his symptoms attributable to the accident sub judice had manifested themselves for only three months. Accordingly, appellant argues plaintiff is entitled to lost wages only from the date of the accident to the date of his return to employment in June of 1981. As to the economic awards, the trial court relied completely upon the testimony of Dr. Seymour S. Goodman, professor of economics at Tulane University, who was the only expert witness to testify. Dr. Goodman testified that in calculating plaintiffs total past economic loss, he took into consideration plaintiffs actual earnings in 1981 and 1982. It does not appear from the record that plaintiff was compensated in the award for past economic loss for the time he actually worked between March 5, 1981 and February 8, 1982. The reliance upon Dr. Goodman for awarding plaintiff past economic loss shows no abuse of discretion.

Lastly, appellant contends the award of Two Hundred Thousand Dollars ($200,000) in general damages to be an abuse of the trial court’s discretion. In determining such award, the trial court considered plaintiffs pain and suffering from the date of the accident, the multiple major surgeries taking place one week apart, present and future pain and suffering, and mental anguish. After a careful review of the record and in light of this court’s prior affirmations of awards, Thibodaux v. Acme Truck Lines, Inc., supra, we do not believe the trial court abused its much discretion in the amount of general damages awarded.

Appellee raises as error the trial court’s failure to award damages for proven employee-employer benefits, namely contribution of plaintiff’s employer into plaintiff’s profit sharing plan. Appellee failed, however, to raise this issue by an independent appeal or in an answer to appellant’s appeal as required by LSA-C.C.P. Article 2133. Cheramie v. Vegas, 413 So.2d 1343 (La.App. 1st Cir.1982). Thus appellee is without standing to raise such issue, but a cursory reading of the reasons for judgment clearly shows the trial judge included the profit sharing plan when determining the award.

Accordingly, for the above foregoing reasons, the judgment appealed is hereby affirmed at appellant’s cost.

AFFIRMED.

GAUDIN, J., dissents with written reasons.

GAUDIN, Judge,

dissenting.

I respectfully dissent, being of the opinion that the award is excessive.


author: BOWES, Judge.

text:
    James W. McBRIDE, et Al. v. EARL K. LONG MEMORIAL HOSPITAL, et Al.
    No. 84-CA-68.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.

      Russ M. Herman, Tonia M. Dandry, Herman, Herman & Katz, New Orleans, for plaintiff/appellant.
    Chester A. Fleming, III, Boggs, Loehn & Rodrigue, New Orleans, for defendants/ap-pellees.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   BOWES, Judge.

Plaintiff-appellant, James McBride, filed suit on September 10, 1982, against numerous defendants, for damages allegedly originating from surgery performed by Drs. Robert C. Leaver and William Fisher, Jr. in 1971-72. The surgery involved implantation of a shunt from appellant’s brain to his heart via the internal jugular vein. On September 10, 1981, appellant underwent an operative diagnostic evaluation by Dr. James Brown to determine the cause of his fever, headaches, and other physical complaints. Cultures taken at this time subsequently grew Staphyloccus Epidermidis, a gram positive coci, after four weeks of incubation. It was not until October 10, 1981, that the plaintiff was informed of (and hence discovered) the confirmation of the Staph infection and that it was the cause of the medical problems which he had been suffering for several years after the surgery for the shunt. Besides Doctors Fisher and Leaver, the only appellees in this action, the suit names several hospitals and physicians whom plaintiff consulted about these medical problems in the interim between his 1972 operation and the 1981 diagnosis and procedure.

The record shows that Mr. McBride was not treated by Fisher and/or Leaver subsequent to the 1971-72 operations. Consequently, appellees filed an exception of prescription, which was maintained by the trial court. It is from this judgment that the plaintiff appeals. We reverse and remand.

The exception of prescription was based on La.R.S. 9:5628, which was enacted in 1975 and which states:

A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly .licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

Prior to this, medical malpractice claims were subject to a one-year prescriptive period commencing from the date the injured party discovered or should have discovered the existence of facts that would entitle him to bring suit. Lott v. Haley, 370 So.2d 521 (La.1979); La.Civil Code Arts. 3536, 3537.

We have carefully considered both the statute in question and the applicable jurisprudence, and have concluded that the plaintiffs action has not prescribed.

There are only two Supreme Court cases addressing the narrow issue now before us. Lott v. Haley, supra and Chaney v. State of Louisiana, 432 So.2d 256 (La.1983). We believe the case before us is on all fours with Lott.

The alleged negligence suffered by Leighton Lott occurred in 1972 when he was examined by a doctor. On April 1, 1976, through a pre-hiring examination by another doctor, he discovered that he had been suffering from an occupational disease, and had been at the time of the 1972 examination. He had no knowledge of, no way of knowing, and apparently no reason to know of this disease, and of the failure to diagnose. R.S. 9:5628 became effective on September 12, 1975. Lott filed suit on March 21, 1977.

Justice Marcus, as author, stated:

Thus the issue confronting this court is whether La.R.S. 9:5628 should be retroactively applied to this case. We think not.

Justice Marcus then made the following astute observations:

It is well established that statutes of limitation are remedial in nature and as such are generally accorded retroactive application. State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943); Shreveport Long Leaf Lumber Co. v. Wilson, supra; DeArmas v. DeArmas, 3 La.Ann. 526 (1848). However, statutes of limitation, like any other procedural or remedial law, cannot consistently with state and federal constitutions apply retroactively to disturb a person of a preexisting right.3 Orleans Parish School Board v. Pittman Construction Co., supra. Nonetheless, a newly-created statute of limitation or one which shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950); State v. Recorder of Mortgages, 186 La. 661, 173 So. 139 (1937). Moreover, the legislature is the judge of the reasonableness of the time and the courts will not interfere except where the time is so short as to amount to a denial of justice. Cooper v. Lykes, supra. Finally, where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. Burmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, 366 So.2d 1381 (La.1978).

In refusing to retroactively apply L.R.S. 9:5628 to defeat Lott’s cause of action by prescription, the Supreme Court held:

In the instant ease, plaintiffs cause of action for damages vested on January 21, 1972, the date of Dr. Haley’s alleged act of negligence giving rise to plaintiff’s injuries. This was prior to enactment of La.R.S. 9:5628 which became effective September 12, 1975. Under the law in effect prior to that date, plaintiff’s suit would have been timely filed. La.R.S. 9:5628 is a statute of limitation in that it prescribes fixed time periods for institution of medical malpractice suits. According to the general rule, statutes of limitation are accorded retroactive application. However, in the instant case, La.R.S. 9:5628 operates to eliminate plaintiff’s vested right to sue on his preexisting cause of action without providing a reasonable period following its enactment to assert his claim. Absent such a provision, we conclude that La.R.S. 9:5628 cannot be retroactively applied in-the instant case because to do so would divest plaintiff of his vested right in his cause of action in violation of the due process guarantees under the state and federal constitutions. The court of appeal erred in holding otherwise.

In the present case, the negligent act alleged by James McBride occurred in 1971-72. His discovery of same came on October 10, 1981. Suit was filed on September 10, 1982, within one year after discovery but more than three years after the occurrence. In the interim, Mr. McBride underwent multiple hospitalizations at Earl K. Long Memorial Hospital, Ochsner Medical Foundation Hospital, Our Lady of the Lake Medical Center, Rhodes J. Spedale General Hospital and Veterans Administration Hospital without a diagnosis ever being made as to the cause of his medical problems. Certainly, no more could be expected of a person to try to discover the cause of his complaints. Accordingly, we find the plaintiff was absolutely blameless in not discovering the negligent act com-plainéd of sooner.

When, as here, an alleged act of malpractice occurred prior to 1975, and the disease or illness was either one with a long gestational period, or was difficult to diagnose, and when plaintiff did his best to ascertain the cause of his problems, a retroactive application of 9:5628 would be a “denial of justice”, which is prohibited by Lott.

The Lott court noted that LSA-R.S. 9:5628 operated to eliminate plaintiffs vested right to sue on his pre-existing cause of action without providing a reasonable time following its enactment for a plaintiff (Lott or, here, McBride) to assert his preexisting claims; and, absent such a provision, which is totally absent in this statute, the statute cannot be retroactively applied. The wisdom and fairness of this holding is readily seen when one realizes that if the statute is applied to McBride, in all probability, his cause of action would have already prescribed on the effective date of the statute. (The facts do not tell us exactly when in 1972 the last alleged negligent act occurred.)

There has been no change in the legislation since Lott, and Lott has not been changed or overruled. Therefore, we are compelled to conclude that the holding of the court in that case is still applicable. As can be seen, the relevant facts in the case at bar are nearly indistinguishable from those in Lott. We find, as the Supreme Court did there, that a retroactive application of the statute in this case would operate to divest McBride of his pre-existing vested right in his cause of action, in violation of the state and federal due process guarantees.

We find the instant case factually different from Chaney, supra, in which the Supreme Court (also with Justice Marcus as author) commented that the doctrine of “contra non valentum agere nulla currit praescriptio,” as applied to actions for medical malpractice, was legislatively overruled in a limited manner, by the enactment of the statute in regard to claims filed more than 3 years from the alleged malpractice. However, the claim (alleged negligence) in that case did not vest until 1977, 2 years after the statute became effective. Here McBride’s cause of action vested in 1972. The question of a retroactive application of the statute was not discussed; but, rather, the Court in Chaney enlightened us to some extent on the application of the statute as to claims arising (acts of malpractice committed) after September 12, 1975. We see no conflict in our holding in this case with Lott and/or Chaney. Whether or not the Legislature, purposely or inadvertently, created two classes of plaintiffs is beyond the scope of this appeal.

We are aware of an apparent split of decisions among the circuit courts of appeal. See Zeno v. Lincoln General, 376 So.2d 1284 (La.App. 2nd Cir.1979) (the statute cannot be retroactively applied in a similar situation); Ramirez v. St. Paul Fire and Marine Insurance Co., 433 So.2d 219 (La.App. 3rd Cir.1983) (the statute would be applied giving plaintiff a maximum of 3 years from the date the statute was enacted in which to assert his claim); and Saucier v. Drs. Houston, Roy, et al., 446 So.2d 877 (La.App. 4th Cir.1984), which attempts to reconcile the two divergent lines of reasoning. We are also cognizant of Fust v. Arnar Stone Laboratories, No. 80-004, rendered January 9, 1984, by the U.S. District Court for the Eastern District of Louisiana, which adheres to Ramirez. However, the latter court is merely a district court of inferior jurisdiction and it’s decision has no more persuasive force on this court than our own district court, from which this case originated, since Supreme Court cases are controlling. It would be inappropriate to comment on the decisions of the circuit courts mentioned above, except to say that we generally agree with our brothers of the Second Circuit.

For the foregoing reasons, the judgment of the trial court is reversed and the matter remanded for trial. Appellees are to pay all costs of this appeal and of the district court.

REVERSED AND REMANDED


text:
    Carol CLARK v. PARK ’N FLY OF LOUISIANA and Hartford Insurance Company.
    No. 84-CA-278.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Clyde A. Ramirez, Ivan D. Warner, III, Patricia D. Miskewicz, New Orleans, for plaintiff-appellee.
    Robert E. McDonald, Metairie, for defendants/appellants.
    Before KLIEBERT, BOWES and DU-FRESNE, JJ.
   BOWES, Judge.

Defendants appeal the decision of the trial judge finding plaintiff partially disabled under LSA R.S. 23:1221(3) and awarding her compensation, medical expenses and penalties and legal fees under LSA R.S. 23:1201.2. We affirm the judgment of the trial court.

On December 15, 1980, plaintiff, Carol Clark, was involved in a vehicular accident while driving a 1974 van owned by her employer, Park ’N Fly of Louisiana, Inc. It was stipulated at trial that plaintiff was in the course and scope of her employment, as a driver for Park ’N Fly, at the time of the accident. The accident resulted in moderate damage to the Park ’N Fly van and minor damage to the bus.

In response to questions immediately following the accident, Mrs. Clark stated that she was not injured. However, she testified that as the day progressed she started “feeling uncomfortable” and that by 9:00 p.m. her neck and back were hurting to such a degree as to necessitate her leaving work early.

Under direct examination, Mrs. Clark testified as follows:

Q Tell me what happened after you went home with regards to your physical condition?
A Well, as time was going on, I was just hurting a little more, a little more. And that happened on a Monday. Well, Tuesday and Wednesday was my days off, anyway. So I just went on home, and I just started hurting. And, you know, it was just getting more concentrated and more concentrated in my back and neck area.
Q Did you seek medical attention?
A Yes. I called Dr. Aiken’s office and got an appointment with him, but I couldn’t see him until the 30th of December. And I really was hurting too bad to wait until then, so I went to my gynecologist, and he prescribed some pain pills for me to hold me over until I could see Dr. Aiken.
B Who was your gynecologist?
A Calvin Jackson. I think I saw him two days after on that Wednesday. I saw him on that Wednesday.

Plaintiff was treated by Dr. David Aiken from December 30,1980 through March 13, 1981, for complaints involving Mrs. Clark’s neck and lower back. Dr. Aiken, when questioned as to the cause of Mrs. Clark’s injuries stated, that, in his opinion, her neck and back problems .resulted from the accident of December 15, 1980. Dr. Aiken explained his decision to discontinue treating the patient thusly:

I saw her next on March 13th, and there was still tenderness in the upper right trapezius muscle. [She was] still dependent on her collar and corset. And complaining of her neck and low back. And it was midline and paraspinal tenderness in the low back from level L3 to the sacrum. And she was still having some pins and needles or numbness and various odd sensations in the right lower extremity. And I decided that we were really not making any good progress during the past month or more, and that she should therefore see an orthopedic surgeon in consultation. So, I did arrange this to be seen by such a surgeon [sic], and that was March 13th, 1981. And he took over and I didn’t see her again after that.

The surgeon to whom Mrs. Clark was referred was Dr. Michael McCutcheon, who treated appellee from March 20, 1981 through April 21, 1982, when the doctor left New Orleans to practice in New Mexico.

Dr. McCutcheon’s deposition was taken in his office in Albuquerque, New Mexico, on January 26, 1983. In his deposition, Dr. McCutcheon stated “my first impression was that she had an acute cervical strain with possible early cervical spondylosis, which is she had symptoms that she may have had problems with a disc in her neck. And then I said acute lumbar sprain, and I thought there was an intervertebral disc injury in her lumbar spine.” It was Dr. McCutcheon’s opinion that the cause of Mrs. Clark’s symptoms were related to the December 15, 1980 accident.

Dr. McCutcheon instituted a conservative regimen of treatment instructing the patient to continue wearing the lumbar corset prescribed by Dr. Aiken, but to try to wean herself from the cervical collar which had also been prescribed. The doctor also advised Mrs. Clark to continue with her present medication. When there was no appreciable improvement in her symptoms, the doctor had Mrs. Clark hospitalized for tests during June 1981. The tests, which included two myelograms, proved inconclusive but led Dr. McCutcheon to believe the patient was suffering from a lumbar disc problem. The doctor continued to treat Mrs. Clark conservatively, seeing her on July 13, 1981, November 6,1981, December 8, 1981, and April 21, 1982. At this point, Dr. McCutcheon left New Orleans and his position in the office was filled by Dr. Bruce E. Razza, who took over the treatment of Mrs. Clark.

Dr. Razza first saw Mrs. Clark in June 1982 and, from this examination, he concluded the following:

She had diminished range of motion of her back and she had pain — complaints of pain upon moving her legs up to eighty degree position. This, again, I felt was consistent with her condition of lumbar spondylosis, which was my working diagnosis. It was also consistent with Dr. McCutcheon’s impression of her. He had seen her previously in our office complex, and his clinical impression as recorded in our records was acute lumbar strain with probable interverte-bral disc injury. Intervertebral disc injury is one form of lumbar spondylosis. So, it’s a matter of semantics. We are basically talking about the same thing. [...]
I worded it probably post traumatic degenerative disc disease without signs of gross herniation. Which again is, I’m trying to say, not actual disc rupture, but a disc injury following an insult or traumatic event.

Dr. Razza’s testimony indicates that he chose to follow the regimen of treatment established by his predecessors:

She had been on conservative therapy and we wished to continue that at that time. I emphasized anti-inflammatory, use of her brace, a chairback brace for support because if the disc isn’t doing its job as a cushion, well, it needs additional help. So, exercise to tone up the muscles so they can pitch in and take some stress off the disc. That is part of the treatment, use of a brace as additional support, anti-inflammatory medication, get rid of the residual irritation that sets up around the disc segment that was in trouble.

When Mrs. Clark showed no improvement on her September 13, 1982 visit, Dr. Razza suggested hospitalization for a lumbar discogram. She was admitted to St. Charles General Hospital and the disco-gram was performed September' 21, 1982. Following evaluation of the test results, Dr. Razza performed a two-level lumbar laminectomy and fusion with a pelvic bone graft on September 23, 1982. Mrs. Clark was discharged October 1, 1982, but had to be re-hospitalized for post surgical complications from October 15-26, 1982, and, again, November 11-17, 1982. As a consequence of the surgical procedures, Dr. Raz-za assigned plaintiff a thirty per cent (30%) anatomical disability.

Following the accident of December 15, 1980, plaintiff-appellee was paid compensation by the Hartford Accident and Indemnity Company, Park ’N Fly’s compensation carrier, from January 1981 through October 26, 1981. The insurance company’s sole reason for terminating compensation payments to Mrs. Clark was a necessarily inconclusive medical report based upon an incomplete physical examination by appellant’s physician, Dr. Richard W. Levy, with his accompanying review of Mrs. Clark’s medical records. Dr. Levy stated that when he advised Mrs. Clark that his examination of her would require her to remove her back brace, bend her back and raise her legs, she declined to do so (because she had just done all this during a neurological examination by Dr. Boston in the same office), and he then terminated the examination.

When questioned why Dr. Levy’s examination was incomplete, Mrs. Clark stated:

Well, just before that I had seen Dr. Boston, and she was in his same office. And I had gone through a complete physical with her with the bending and stooping and everything. And I asked him if he was going to have me go through this. I said, “Because if I don’t have to, I really don’t want to because it’s a real painful process.” And he said, “Well, if you don’t want it, we don’t have to.” And that was that.

This is a very understandable reaction from a lay person whose chief complaint was one of pain and who obviously had no idea that such action would result in her payments being terminated.

Following what can only be termed an inconclusive medical examination by Dr. Levy, defendants neither requested Mrs. Clark to return to Dr. Levy for a complete examination, nor did they make it clear to her or her attorney that if she failed to submit to a complete medical examination, they would terminate her benefits. Under these circumstances, we believe they were obligated to do so.

We also find it significant that the great majority of Dr. Levy’s testimony is concerned either with events that happened after October 26, 1981 or with examinations made of Mrs. Clark by his partner, Dr. Susan Boston, who was attempting to find the cause of Mrs. Clark’s reported headaches. In her own testimony at the trial, Dr. Boston stated that she did not examine Mrs. Clark’s lumbar spine.

We agree with our brother judges of the Third Circuit who, in Delco v. Heritage Manor Nursing Home, 441 So.2d 309 (La.App. 3rd Cir.1983) stated:

In compensation cases the plaintiff has the burden of showing that more probably than not an employment accident occurred and that it had a causal relation to the disability. Harris v. Louisiana-Pacific Corp., 420 So.2d 1220 (La.App. 3rd Cir.1982). A worker’s pre-exist-ing condition does not bar his recovery under workmen’s compensation because the employer takes the worker as he finds him. Guillory v. U.S. Fidelity & Guaranty Ins. Co., 420 So.2d 119 (La.1982). An employee’s disability is com-pensable if a work-related accident aggravates or accelerates a pre-existing condition to produce disability. Cadiere v. West Gibson Products, Co., Inc., 364 So.2d 998 (La.1978).
The question of whether there is a causal relationship between the disability and the employment is a question of fact. Moreau v. Houston General Ins. Co., 386 So.2d 151 (La.App. 3rd Cir.1980). A factual determination by the trial court should not be reversed unless the trial court was clearly wrong from an examination of the record as a whole. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).
As a general rule, the treating physician’s testimony should be given more weight than that of a doctor who examines a plaintiff for diagnosis only. Ellis v. Rapides Parish School Board, 419 So.2d 990 (La.App. 3rd Cir.1982).

In the instant case, the trial court found that Mrs. Clark suffered a job-related injury in the course and scope of her employment with Park ’N Fly and that plaintiff was partially disabled as a result of her accident. We find no error in that conclusion.

Recently, in Reed v. Louisiana HyPro, Inc., 446 So.2d 879 (La.App. 1st Cir. 1984), the First Circuit held that:

An injured employee’s benefits may not be stopped on the basis of inconclusive medical reports. It is incumbent upon insurers to make reasonable efforts to ascertain the employee’s exact medical condition at the time benefits are stopped. Orgeron v. Tri-State Road Boring, Inc., 434 So.2d 65 (La.1983); Salvador v. Slidell Industries, Inc., 415 So.2d 511 (La.App. 1st Cir.1982).

We agree with this position and find that the trial judge was correct in his conclusion that the appellants’ discontinuance of Mrs. Clark’s compensation benefits was arbitrary, capricious and without probable cause.

Accordingly, for the foregoing reasons, the judgment of the district court is affirmed. Appellants are to pay all costs of this appeal.

AFFIRMED.

      . LSA R.S. 23:1221(3) states in pertinent part:
      (3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability....

      . LSA R.S. 23:1201.2 states:
      Any employer whose liability for claims arising under the provisions of this Chapter is not covered by insurance, shall pay the amount of any claim due under the provisions of this Chapter, within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious or without probable cause, shall subject the employer to a penalty in addition to the amount of claim due of 12% of the total amount of such claim, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claim, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due, and all reasonable attorney’s fees for the prosecution and collection of such amount. Any such employer who at any time discontinues payment of claims due and arising under the provisions of this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the penalties set forth above, payable to the claimant together with all reasonable attorney’s fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney’s fees shall not apply in cases wherein the employer is found liable for penalties and attorney’s fees under the provisions of this Section.