Opinion
No. 86-CA-559.
February 9, 1987. Rehearing Denied April 9, 1987.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE WALTER E. KOLLIN, J.
Margaret Bradley, Law Offices of Robert E. Birtel Metairie, for intervenor-appellant.
Charles R. Capdeville, Law Offices of Ronald L. Ronzello, Metairie, for defendants-appellees.
Darleen M. Jacobs, New Orleans, for plaintiff-appellee.
Before KLIEBERT, GRISBAUM and WICKER, JJ.
This appeal concerns a dispute between a worker's compensation insurer and a third party tort-feasor (and his insurer) over reimbursement for compensation and other benefits paid to the injured worker. The compensation insurer-intervenor, St. Paul Fire Marine Insurance Company, appeals the trial court's award of $30,000 for its reimbursement. We amend, and as amended, we affirm.
We are called upon to decide two basic issues:
(1) Whether the hospital incident was the separate, independent, and intervening act which caused the rupturing of the disc, and
(2) Whether the trial court erred in failing to award legal interest to the intervenor-compensation insurer.
FACTS
On August 9, 1983, Eddie J. Veal, Jr., in the course and scope of his employment with Bonnabel Hospital, was driving a van owned by the Hospital. The van was struck by a pickup truck driven by Robert Dwyer and owned by Dwyer's Quality Used Cars, Inc. That day, Veal reported to his supervisor that he was experiencing pain but continued working in pain for the next few days. While pushing a stretcher at the hospital on August 14, 1983, he experienced a sharp pain down his right arm to his fingertips. The next day he saw Dr. Bert Bratton and on September 20, 1983 began collecting $117.33 per week compensation benefits.
On July 27, 1984, Veal filed suit seeking damages for injuries sustained and named as defendants Dwyer, Dwyer's Quality Used Cars, Inc., and its liability insurer, Continental Insurance Company. St. Paul Fire Marine Insurance Company (St. Paul), Bonnabel Hospital's worker's compensation carrier, intervened seeking recovery of compensation benefits and medical expenses paid to Veal. Prior to trial, Veal had been paid a total of $53,656.67 in benefits and $9,901.78 in medical expenses, apparently pursuant to a lump sum settlement. On March 17, 1986, the parties settled the main demand, to which St. Paul was not a party and did not assent, for a sum of $150,000. The settlement included an agreement that any sums awarded in the intervention were to come out of the $150,000 placed in escrow until the intervention was determined. The next day, the intervention was tried and judgment was rendered in favor of St. Paul for $30,000. Although the judgment omitted interest, St. Paul was ordered to pay all costs of the proceedings, along with the expert fee of $500.
ANALYSIS
The rights of an employee and his employer against a third party tortfeasor are governed by La.R.S. 23:1101-03. Briefly, these provisions permit both the employee and the employer or its insurer to file a tort suit against third persons who caused the employee's injuries. Section 1101. If either party brings suit, he must notify the other, and the other may intervene in this suit against the third person tortfeasors. Section 1101. In the event of successful recovery in such a suit, the employer's claim for reimbursement of compensation shall be paid in priority to the employee's claim out of any amount recovered. Section 1103. See Johnson v. Fireman's Fund Ins. Co., 425 So.2d 224 (La. 1982); Verbois v. Howard, 322 So.2d 110 (La. 1975). Moreover, Section 1103 concludes specifically: "No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him." Accordingly, the plaintiff's settlement does not prejudice the right of the intervenor to recover all sums for reimbursement of compensation to which it is entitled, providing the damages sustained by the plaintiff as a result of the tort are at least equal to such amount. Felder v. Georgia Pacific Corp., 405 So.2d 521 (La. 1981); Verbois v. Howard, supra. This is so regardless of any "hold harmless" provision to which the settling parties may have agreed. La.R.S. 23:1102(C)(1); Security Ins. Co. of Hartford v. Deshotels, 458 So.2d 186 (La.App. 5th Cir. 1984).
On p. 4 of the appellant's brief, St. Paul argues it is "automatically and/or summarily entitled to recover the amount of compensation benefits and medical expenses paid to employee pursuant to R.S. 23:1102(C)." While the statutes state that a compromise to which the employer, or his insurer, does not consent does not affect the reimbursement rights of the employer, it makes no mention of any summary procedure or automatic device for such reimbursement. Accordingly, the trial court committed no error in ordering the intervenor to prove the claim relative to its intervention.
It is an axiomatic rule of law that in a worker's compensation case, an employee (or, as here, the intervening carrier) must establish by a preponderance of the evidence that an employment accident, more probably than not, caused the disability. Conley v. Avondale Shipyards, Inc., 464 So.2d 807 (La.App. 5th Cir. 1985). We have further recognized that an "accident" does not necessarily mean a sudden, violent and traumatic event; a claimant may also demonstrate that the disability was caused by activity gradual and progressive in nature. Millet v. Hooker Chem. Co., 442 So.2d 1239 (La.App. 5th Cir. 1983). More importantly, when a determination must be made as to which of two accidents is the legal cause of the disability, various tests have been verbalized in our jurisprudence. In Waggoner v. Marquette Casualty Co., 181 So.2d 475 (La.App. 2d Cir. 1965), the legal framework was set forth thusly:
"A tort-feasor is liable only for the direct and proximate results of his wrongful act. He cannot be held responsible for the result of a separate, independent and intervening act with which he had no active connection. If a person receives an injury through the negligent act of another, and the injury is afterwards aggravated and recovery retarded by a subsequent accident not resulting from the failure of the injured person to use ordinary care, the subsequent accident becomes a sequence or natural result of the original injury and the tortfeasor is liable for the entire damage sustained. However, the reverse is true if the subsequent injury is attributable to a distinct, intervening cause, for which the tort-feasor would be liable only for the original injury and not the subsequent one.'" (quoting from Rainwater v. Timothy, 87 So.2d 11 (La.App.Orl.Cir. 1956)).
Waggoner, supra at 478-79. More recently, the test was succinctly stated as follows: "The proper standard for determining whether an accident is the legal cause of the disability is simply whether the accident changed the plaintiff's condition so as to render him disabled and unfit for his former employment." Abshire v. Dravo Corp., 396 So.2d 521, 524-25 (La.App. 3d Cir. 1981). The Abshire case was cited and applied in Royer v. Cliffs Drilling Co., Inc., 465 So.2d 11 (La.App. 3d Cir. 1984), writ denied, 466 So.2d 453 (La. 1985), wherein damages for a second work-related incident were held to be "directly traceable" to a previous work-related auto accident, and full reimbursement was granted. Similarly, this Circuit has enunciated that test in Frix v. Supreme Catering Serv. and Aetna Ins., 444 So.2d 710 (La.App. 5th Cir. 1984):
An employee's disability will be presumed to have resulted from an employment accident if before the accident the employee was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition. (quoting Field v. Winn Dixie, Inc., 427 So.2d 616 (La.App. 5th Cir. 1983, emphasis supplied by the Frix court).
Frix, supra at 713.
The record shows that the only expert to testify was Dr. Bert Bratton, the neurosurgeon who treated Edward Veal since April of 1982. Initially, he treated him for lower back pain prior to either accident and had in fact performed a surgical discectomy and fusion. Thereafter, he released Veal for work, finding only occasional residual pain. On July 15, 1983, Dr. Bratton saw the patient, who then complained of only some lower back pain. The next time Veal saw Dr. Bratton was on August 15, 1983, one day after the stretcher incident and six days after the auto accident. On this visit, he informed the doctor of the August 9 auto accident and Dr. Bratton found the plaintiff to have a cervical strain with mild cervical spasms. A muscle relaxant was prescribed. On August 24, 1983, he again saw Dr. Bratton and related the stretcher incident. At that time, Dr. Bratton found some symptoms of a ruptured disc which were not present on August 15. He recommended Veal not work for one month. It was not until September 12 that Dr. Bratton changed his diagnosis from a cervical strain to cervical radiculopathy and recommended cervical traction. Ultimately, on October 7, 1983, Dr. Bratton hospitalized Veal for a myelogram because the patient's difficulties were worsening. The myelogram showed a defect in the cervical area, and Dr. Bratton performed an anterior cervical discectomy at the C-6-7 level. At that time, a ruptured disc was found on the patient-plaintiff's right side. As he was the only physician to testify, Dr. Bratton's assessment of what caused Veal's ultimate disability is pivotal, deserving quotation:
Going on what we have, which was truly objective, the myelogram did not show a significant disc pressure. His surgery did show a large disc rupture. The type of disc rupture he was subsequently to have on the myelogram and at surgery in my opinion, that would have occurred because of the arm pain. It was large enough to cause pain in the arm. So that would be the right arm pain, so I would say that the ultimate findings I found were the result of injury or injuries, which caused the disc to get to that point. Certainly, his neck pain started following his motor vehicle accident. There is a good reason to think that the disc was partially damaged at that point, but not fully ruptured. The subsequent stress on it from pushing the stretcher may have caused the subsequent further rupturing of a disc. A disc does not have to rupture at one point in time, it can continue. Once it is weakened and continues to rupture — and I have seen this on many occasions so my opinion; he weakened this disc with the accident; the subsequent stress caused the complete rupture because of the degree of the rupture; if it had been there all along, it would have caused arm pain.
[Question from Court]
Percentage wise, that is going to be extremely difficult because you almost have to say that if one injury had not occurred, it would not have been enough to cause the subsequent disc rupture at the degree that it required surgery so I am almost going to have to say quite arbitrarily fifty-fifty. If one hadn't occurred, the other one wouldn't have lead [sic] to surgery. If the auto accident simply weakened the disc and the pushing of the stretcher was the second significant stress that caused the disc to get to the point to be a surgical disc, so I will have to say arbitrarily each one played an equal role in getting him to the point of requiring surgery.
This testimony went unrebutted and consequently was weighed and heavily relied upon by the trial judge. Accordingly, we need only take Dr. Bratton's above-quoted statements and apply the appropriate legal standard.
After a careful review of the record, bearing in mind our jurisprudential guidelines, we find that, prior to the August 9 automobile accident, Veal was experiencing only residual lower back pain resulting from a past operation, and was working relatively unhindered. After the auto accident, he was in a great deal more pain, although he continued working. According to Dr. Bratton, the auto accident set in motion the disc weakness, which eventually resulted in rupture. The symptoms for disc injury manifested themselves in pain until the August 14 stretcher incident, a task Veal undoubtedly performed countless times during his 25 years in the service of Bonnabel Hospital. But for the auto accident, Veal probably would have pushed the stretcher from the X-ray room with hardly any pain, based on Dr. Bratton's assessment of causation. Once the accident had occurred and the plaintiff's disc was damaged, a further rupturing of the disc apparently was inevitable and rather probable, given the plaintiff's tasks at Bonnabel. Indeed, the stretcher incident contributed "fifty-fifty" to the overall rupturing of the disc; however, Dr. Bratton explained, "if one [the auto accident] hadn't occurred, the other one [the stretcher incident] wouldn't have lead [sic] to surgery." So although each incident played an equal role, in the doctor's opinion, in making surgery required, it was the auto accident which in reality made the plaintiff unfit for his employment with Bonnabel Hospital. Accordingly, the trial court did err.
Finally, we turn to address the manner in which the court handled the question of interest to the compensation insurer. La.C.C.P. art. 1921 states: "The court shall award interest in the judgment as prayed for or as provided by law." Additionally, legal interest shall attach from the date of judicial demand on all judgments sounding in damages "ex delicto." La.R.S. 13:4203; Chiasson v. Whitney, 427 So.2d 470 (La.App. 5th Cir. 1983), writs denied, 433 So.2d 179, 180, 183 (La. 1983); Probst v. Wroten, 433 So.2d 734 (La.App. 5th Cir. 1982), reh'g granted.
The petition in intervention does in fact include a prayer for "legal interest thereon from date of judicial demand." Clearly, St. Paul is entitled to interest as commanded by law. Larson v. Huskey, 440 So.2d 769 (La.App. 4th Cir. 1983); Lennix v. St. Charles Grain Elevator Co., 439 So.2d 1249 (La.App. 5th Cir. 1983).
We note that the date the petition in intervention was "filed as prayed for" is March 26, 1985, seeking $16,502.68, which had been paid to the defendant. Thereafter, a lump sum settlement had apparently been reached between St. Paul and Veal totaling $63,558.45. Therefore, legal interest on the first $16,502.68 should be calculated from the March 26, 1985 judicial demand whereas interest on all other payments should be calculated only from the date of payment. See Larson v. Huskey, supra. We note finally the withdrawal of $30,000 from the registry of the court by the appellant on the date of July 9, 1986 which would discontinue legal interest on that amount on that day. Accordingly, the appellant is entitled to legal interest, in accordance with the directives presented herein, from the date of judicial demand, until paid; therefore, the trial court did err.
For the reasons assigned, the judgment of the trial court dated March 26, 1986, which decreed "that the intervenor, ST. PAUL FIRE AND MARINE INSURANCE COMPANY, is to receive the sum of THIRTY THOUSAND ($30,000.00) DOLLARS for its intervention," is amended to read "that the intervenor, ST. PAUL FIRE AND MARINE INSURANCE COMPANY, is to receive the sum of SIXTY-TWO THOUSAND FIVE HUNDRED FIFTY-EIGHT DOLLARS AND FORTY-FIVE CENTS ($62,558.45) for its intervention." Moreover, the judgment is also amended to include the awarding of legal interest as prescribed. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are to be assessed against the appellee.
AMENDED AND AFFIRMED.
WICKER, J., dissents in part.
RESPONSE TO APPLICATION FOR REHEARING FILED BY DEFENDANT-APPELLEE.
The defendant-appellee has filed an application for rehearing dated February 23, 1987, requesting a five-judge panel claiming "the increased in the award to intervenor together with the dissenting opinion should make the resubmissions or reargument of this matter before a panel of at least five (5) judges mandatory." We deny this rehearing.
A brief synopsis of our opinion dated February 9, 1987 shows that the plaintiff-employee sued a third party tortfeasor for injuries sustained in an auto accident occurring while acting during the course and scope of his employment. The employer's compensation carrier intervened for sums paid to the employee. The employee and third party defendant settled just prior to trial without the consent of the insurer. The intervention was set for trial by the district court, which found, after a trial on the merits, that the defendant-tortfeasor was liable for only one-half the plaintiff's injuries ($30,000), the other half resulting from a strain on the job days after the auto accident. On intervenor's appeal, two panel members found that the medical expert testimony concluded the auto accident was the cause of the employee's ultimate disability, and the stretcher-pushing strain only an aggravation or natural result of the first accident. Accordingly, the tortfeasor was deemed totally liable for all compensation paid; therefore, the intervenor-carrier was awarded the entire amount, the sum of $62,558.45. Our decree amended the amount recovered and affirmed the judgment as amended. Our judgment was further amended to include interest erroneously denied by the trial court.
One panel member dissented, finding no error in the trial court's 50-50 apportionment of the cause of the ultimate disability. Nonetheless, he agreed to amending the judgment to include interest.
ANALYSIS
Rule 1-5 states, in part: "In civil appeals, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued or resubmitted before a panel of at least 5 judges, a majority of whom shall render judgment." (emphasis supplied). This rule is obviously an adaptation of the La. Const. of 1974 art. v. § 8(B), which provides, in part:
A majority of the judges sitting in a case must concur to render judgment. However, in civil matters only, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment.
The possibility of mandatory five-judge panels in any disposition other than an affirmance is certainly evident from a literal reading of our court rules and state constitution.
Justice Marcus has stated that the constitutional provision is clear insofar as it applies to both final and interlocutory judgments considered under either our appellate supervisory jurisdiction. Bank of New Orleans and Trust Co. v. Seavey, 383 So.2d 354 (La. 1980). While he is no doubt correct in his analysis, such an analysis would beg the question in determining the meaning of "modified or reversed" in the provision. Other cases available on this issue involve:
(1) instances wherein the judgment is "amended and affirmed" and the dissent applies only to the "affirmed" portion of the judgment, Speirer v. McIntosh, 342 So.2d 238 (La.App. 4th Cir. 1977); Welton v. Falcon, 341 So.2d 564 (La.App. 4th Cir. 1976), writs denied, 342 So.2d 872, 1109 (La. 1977);
(2) cases wherein the dissent agrees with the modification but would further modify the award, State Dep't of Highways v. Mims, 336 So.2d 24 (La.App. 3d Cir. 1976), writ denied, 339 So.2d 16 (La. 1976); and
(3) situations where the award is amended and the judgment affirmed by two judges, and the dissenting opinion finds no liability whatsoever, and therefore would make no award, Williams v. City of New Orleans, 433 So.2d 1129 (La.App. 4th Cir. 1983), writ not considered, 437 So.2d 1135 (La. 1983); Villetto v. Weilbaecher, 377 So.2d 132 (La.App. 4th Cir. 1979); Brown v. Employers Commercial Union Ins. Co., 316 So.2d 194 (La.App. 4th Cir. 1975), writ denied, 320 So.2d 204 (La. 1975). While these cases provide some insight, none are directly applicable to the circumstances at hand.
We note La.C.C.P. art. 2082 grants the "right of a party to have a judgment of a trial court revised , modified set aside, or reversed by an appellate court." In its wisdom, the legislature apparently found some difference between a "revision" and a "modification." The term "amended" is not included in this list of possible dispositions, and neither is "affirmed" nor "remanded" (See La.C.C.P. art. 2082 Comment (d); La.C.C.P. art. 2164, Comment (d).) If the enumerated dispositions in art. 2082 are not meant to be exclusive, it suggests that "amended," although certainly akin to the terms "revised" and "modified," is nonetheless a separate disposition. Accordingly, to "amend" a judgment would not make the appeal subject to Rule 1-5 and La. Const. art. V § 8(B) because technically we have neither "modified" nor "reversed" the lower court judgment.
"Revise" is defined in Black's Law Dictionary as "To review and re-examine for correction. To go over a thing for the purpose of amending, correcting, rearranging, or otherwise improving it; as, to revise statutes, or a judgment. State exrel. Taylor v. Scofield, 184 Wn. 250, 50 P.2d 896, 897."
"Revise" is defined in The Compact Edition of the Oxford English Dictionary as "To look again or repeatedly at, to look back or meditate on, something. . . ." To see or behold, to look at, again. . . ." To look or read carefully over, with a view to improving or correcting. . . ."
"Modified" is discussed in Comment (b):
The word "modified", which does not appear in Arts. 556 or 564 of the 1870 Code, was added in order to make it clear that revision could entail an extension as well as a limitation of the judgment. See "modify" in Black's Law Dictionary, citing State v. Lincoln, 133 Minn. 178, 158 N.W. 50, 52 (1916); P U.S. v. Felder, 13 F.2d 527, 528 (D.C.Cir. 1926).
"Modify" is defined in Black's Law Dictionary as "To alter; to change in incidental or subordinate features; enlarge, extend; amend; limit, reduce. Such alteration or change may be characterized, in quantitative sense, as either an increase or decrease. Johnson v. Three Bays Properties No. 2, Inc., Fla.App., 159 So.2d 924, 926."
"Modify" is defined in The Compact Edition of the Oxford English Dictionary as "To limit, restrain, keep within bounds and measure. . . ." "To appease, assuage. . . ." To control one's feelings. . . ." To alter in the direction of moderation or lenity; to make less severe, rigorous, or decided; to qualify', tone down, moderate. . . ." "To determine (a substance or other entity) into a particular 'mode' or modes; to give (an object) its particular modality or form of being. . . ." "To make partial changes in; to change (an object) in respect of some of its qualities; to alter or vary without radical transformation. . . ."
"Amend" is defined in Black's Law Dictionary as "To improve. To change for the better by removing defects or faults. To change, correct, revise. Texas Co. v. Fort, 168 Tenn. 679, 80 S.W.2d 658, 660."
"Amend" is defined in The Compact Edition of the Oxford English Dictionary as "To free (a person) from faults, correct, reform, turn from wrong, convert. . . ." "To free (a thing) from faults, correct (what is faulty), rectify. . . . ." "To make professed improvements in (a measure before Parliament); formally, to alter in detail, though practically it may be to alter its principle, so as to thwart it. . . ." "To repair or make good (what is broken or damaged); to restore. . . ." To bring into a better state, better, improve (anything implicitly imperfect). . . ."
This semantic exercise aside, an inquiry into the choice of language in La. Const. art. V § 8(B) leads to Vol. VI, p. 756 of the transcripts from the Constitutional Convention. Therein, Delegate Chris J. Roy explained § 8(B) upon its presentation to the delegates. In the debate over the article on the floor of the Convention, only "reversal" is discussed in considering the effect of the article.
The Constitution of 1921 makes no mention of modification or reversal. See art. VII § 23 and § 26.
If two of the three judges sitting on the panel, you understand, decide that they disagree with the district judge even though they haven't heard the witnesses, saw them testify, etc., and all these good things that you don't want to reverse district judges for, they may nevertheless vote two to one against a dissenting judge who says that the case should not be reversed or modified. When that occurs, the present rules of the courts are that if you apply for a rehearing, the rehearing goes back to the same panel that heard the case. So what happens, the two judges that already decided against you and reversed the district judge naturally deny the rehearing.
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Now what does my amendment do? . . .
. . . It simply says this. When a case goes up to a court of appeal and when you are going to reverse the district judge or modify its opinion, then if there is one dissent of the three who says that it should not be done, that you should not reverse this district judge, at that time instead of rendering the opinion, the parties are entitled to a reargument before at least five judges of that appellate court. In other words they call in two additional judges, the case is reargued. If at that time a majority decides that you should in fact be reversed, you are reversed. If not, you are not reversed. Now let me show you what can happen as a result of the present circumstance. Since the courts of appeal sit in rotating panels of three, never the same three judges at the same time, we are getting out of the same court of appeal sometimes different results in almost identical cases. That is compounded when you think of the fourth circuit having nine judges and they sit in panels of three. You can get out of the same court of appeal two different results from the same type case. I think this is a very, very good amendment. What it does is, it allows the verdict, the judgment of that district judge to be entitled to a little more weight than it's got now. As you see right now you can simply disagree with the district judge, two judges reversing, and that is the end of it. That's the finis of it.
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All I am saying today is that no two judges on an appellate court who read a cold record should be able to take what a district judge has done after hearing a case for three days and subvert it by simply outvoting another judge. It does not do anything except, and this is the argument against it, it makes some appellate judges, if they have to reargue the case, you have to call in two more appellate judges and two more will have to read the record.
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I think that in the interest of justice, it is not too much to ask an appellate court to have two more judges come in and read a record where one judge vehemently dissents and says you have done the wrong thing by reversing this district judge. Let's seek justice. Justice delayed may be justice denied. Justice denied is justice denied and when two judges can take a district court and reverse it simply almost on a whim, that is not justice in my judgment.
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All I am saying is that yesterday you said that the more people you have looking at a record the better chance that justice will prevail. I have to agree with that although I didn't want it to be reviewed. If we are going to review then let's have as many possible which doesn't impede the efficient operation of the court look at it. That's all this amendment does. It say that when two decide to reverse one, and to reverse that district judge, it must be reviewed by at least five.
In light of the jurisprudence and the delegates' discussion, we find that the term "modified" contemplates a change in the judgment which would constitute a reversal. In other words, a "modification" is a change which is tantamount to reversal as a practical matter.
Bearing in mind our state constitution, our court rules, our statutory law, and our jurisprudential guidelines, we find the changes of the trial court's judgment in our decree constitute a correction of the trial court's misinterpretation of the medical testimony, thereby defining a specific revision. Additionally, this Circuit, as a matter of policy, has decided that the majority of each panel determines the state of any "change" in the trial court's judgment in accordance with its vested authority.
APPLICATION FOR REHEARING DENIED.
I respectfully dissent from that portion of the opinion which increases the award to St. Paul in the amount of $62,558.45.
Appellant argues that the trial judge was manifestly erroneous in failing to award full recovery of the worker's compensation and benefits paid to Veal in light of the testimony at trial.
Veal testified that on August 9, 1983 he was involved in an automobile accident while he was transporting a patient. He was injured in the course and scope of his employment for the alleged defendants. Dr. Bert R. Bratton, a neurologist, testified that he saw Veal on August 15, 1983 for these injuries. Their testimony also reflects that on August 14, 1983 while Veal was pushing a stretcher at work, he developed numbness and pain of the right arm.
At trial, the trial judge correctly noted the crucial issue in the case when he stated that the two separate incidents have "very candidly been the problem with the whole case and why it has not been able to be disposed of." He considered Dr. Bratton's testimony to be the "key" to determining the relationship of the two separate occurrences to the injuries sustained.
At the conclusion of the trial, he stated that:
The medical testimony is the primary testimony upon which I will base my decision. The doctor candidly testified it was difficult to assess percentages, but if he had it would be fifty-fifty percent as to the automobile accident and the pushing of the stretcher incident, that apparently took place the same month. I weigh heavily his testimony and rely heavily on it.
Dr. Bratton testified that he did not think that the disc which required surgical intervention was in that necessitous condition when he saw Veal subsequent to the automobile accident. He noted that Veal would have had significant arm pain following the automobile accident had there been a disc rupture impinging upon the nerve root. He found significant the fact that the arm pain only occurred following the stretcher incident.
While he admittedly expressed difficulty in attempting to assign percentages to the two incidents in terms of their relation to the injuries sustained, he nonetheless did so. He found that each incident played an equal role in getting Veal to the point of needing surgery.
We find no manifest error in the trial judge's relying on the testimony of the only expert to testify at trial and in his relying on the percentages given by Dr. Bratton. Moreover, the legal conclusion that St. Paul was not entitled to full reimbursement is also supported by the jurisprudence which holds that whether or not an accident is the legal cause of the injury depends upon whether it changes the victim's condition so as to render him disabled and unfit for employment. Royer v. Cliffs Drilling Co., Inc., 465 So.2d 11 (La.App. 3rd Cir. 1984); Allen v. Milk Haulers, Inc., 278 So.2d 871 (La.App. 1st Cir. 1973).
In the instant case Veal continued to perform his duties at the hospital with no restrictions. However, when the stretcher incident occurred he was then advised to discontinue engaging in such activities. Therefore, the accident did not render him disabled and unfit for employment.
Since the automobile accident only accounted for 50% of the injuries, then St. Paul is only entitled to recover 50% of the amounts paid. Joyce Cacioppe, a claims' representative for St. Paul, testified that the total amount of compensation and benefits paid to Veal was $63,558.45. Fifty percent of that figure would be $31,779.23 instead of the $30,000.00 awarded to St. Paul.
Accordingly, the judgment should be amended to award St. Paul $31,779.23 instead of the $63,558.45 awarded by the majority.