This is an appeal by the defendants in a workmen's compensation case from a judgment refusing to grant a modification of the judgment awarding compensation to plaintiff in the amount of $35 per week, not to exceed 400 weeks. The defendants contend that the plaintiff is no longer disabled or under any physical incapacity which prevents him from pursuing his former employment as an ironworker.
The present action is a sequel to an earlier appeal in the same suit. Carlock v. Gross, 167 So.2d 464 (La.App.1964). Our judgment on the earlier appeal affirmed the lower court's holding that the plaintiff suffered total and permanent disability from his injury.
The modification proceedings were instituted under the provisions of LSA-R.S. 23:1331, which provides in part:
A defendant-employer or insurer instituting such modification proceedings has the burden of proving that the employee's disability has diminished or ceased, and that the employee is no longer disabled from performing his occupational duties by reason of a work-caused injury. Belsome v. Southern Stevedoring, Inc., 239 La. 413, 118 So.2d 458 (1960); Cloud v. National Sur. Corp., 166 So.2d 31 (La.App. 3d Cir. 1964);
The defendants requested that the court appoint an independent medical expert to examine the plaintiff and to report to the court as provided in LSA-R.S. 23:1123. The pertinent provisions of that statute are:
This request was granted and the plaintiff was subsequently examined by the court-appointed medical expert, Dr. Robert M. Rose, an orthopedic surgeon.
We are of the opinion that the jurisprudence restricted the trial below to one issue, to wit, whether the plaintiff is now able to perform substantially the same duties of employment as performed by him prior to the accident. Bonin v. Sam Carline, Inc., 117 So.2d 312 (La.App. 1st Cir. 1959); Thompson v. Bituminous Cas. Corp., 104 So.2d 248 (La.App. 2d Cir. 1958); Nubles v. Texas Gas Transmission Corp., 72 So.2d 565 (La.App. 2d Cir. 1954); Strother v. Standard Acc. Ins. Co., 63 So.2d 484 (La. App. 1st Cir. 1953).
The fact that he is presently employed as a welder in electrical construction at wages exceeding those which he received from his employment prior to the accident, is not alone sufficient to preclude his right to continue to receive compensation payments. Myers v. Jahncke Service, 76 So.2d 436 (La.App. Orleans 1954); Strother v. Standard Acc. Ins. Co., supra; Cobb v. A. G. McKee & Co., 45 So.2d 432 (La.App. 1st Cir. 1950); De Kerlegand v. Car & General Ins. Corp., 30 So.2d 881 (La.App. Orleans 1947).
In our opinion on the first appeal we followed our jurisprudence interpreting "work of a reasonable character" and said:
In wrestling with the vexing issue of "work of a reasonable character" in regard to skilled workmen versus common laborers, a jurisprudential rule has evolved: in the case of the "skilled" workman the test of ability to perform the same or "similar" duties is more rigidly applied and the limits of dissimilarity of duties become more narrow as the extent of skill is increased.
There is no question that Mr. Carlock, being employed at the time of injury as an off ground ironworker, was engaged in a work requiring a high degree of skill. Nor is there any question that his present employment as an electrician's welder is one requiring a high degree of skill. The duties are not the same, though in some respects similar. It is our opinion that his demonstrated ability to perform the duties of the latter falls short of meeting the jurisprudential rule of same or similar work. However, the fact that he remains in the work of electrician's welder, rather than return to ironwork, is not necessarily evidence of his inability to return to his former employment. It could well be a matter of choice; a choice conceivably influenced by the prospect of losing $35 per week in supplemental income. A workman
Plaintiff's duties as an ironworker were discussed by us in our opinion on the first appeal, 167 So.2d at 467, and will not be repeated here. Evidence of his ability to do the things required of his present employment will be considered in connection with the testimony of the examining physicians for such corroborative support as it might give to their expert opinions of his present physical limitations.
Plaintiff freely admits his present employment has extended without interruption over a period of many months. He admitted also that it requires climbing on scaffolds and the handling of heavy objects. However, he stated that he does not climb to the heights required of an ironworker, nor does he handle very heavy objects on narrow platforms or beams which would require a great amount of strength and balance. By the use of motion pictures Carlock was shown climbing upon a scaffold by means of a ladder and handling certain objects. He appeared to be laying boards for decking on a scaffold and handling a sheet of plywood. He also appeared to be working with aluminum tubing to be used as electrical conduits. It is in this particular respect that he does welding. The photographers admittedly took pictures showing him in the most strenuous activity observed by them during the three days he was under surveillance. The pictures, exhibited before us, indicated that he performed these duties in a very normal manner and without difficulty.
The medical testimony reviewed by us in considerable detail in our first opinion will not be repeated here. Our consideration of the issue presently before us is limited to the medical testimony taken on trial of the application for modification.
The court-appointed medical expert, Dr. Rose, testified that Mr. Carlock related his case history to him. Dr. Rose stated that the plaintiff complained of back trouble, "consisting of continuous pain in what he indicated as the right lumbosacral area of his back and this pain radiated down the back of his leg to the knee." Bending tests were normal with no limitations nor muscle spasm, but he did complain of a "catch in his back on bending backwards." Straight leg raising test, to 90 with each leg, was without complaint. Reflexes were normal.
An X ray was made upon his direction by Dr. Robin Hardy with the following report:
Dr. Rose concurred in the findings of Dr. Hardy.
Mr. Carlock's right leg is a bit shorter than the left, but not from any cause associated with the accident. Dr. Rose said of this condition:
He further testified:
Concerning the osteophyte mentioned in the X ray report, he testified:
After checking the X ray taken two months after the accident which showed the osteophyte, he said it predated the accident, since it takes at least nine months for osteophytes to develop after an injury. He also stated that osteophytes are not necessarily disabling and that there were no abnormalities apparent on the X ray other than the osteophyte. Dr. Rose exhibited a very good knowledge of the duties of an ironworker and expressed the opinion that Mr. Carlock was physically able to perform such duties.
On cross-examination he was asked in the light of plaintiff having worked as an ironworker for 14 years without discomfort, then had a trauma and could not return to that work without a great deal of discomfort, would that relate to the shortness of the leg or to the trauma. He answered:
In rebuttal of this medical testimony is that of Dr. George C. Battalora, Jr., a physician of equally fine qualifications. Dr. Battalora was Mr. Carlock's personal physician and testified at the first trial. He had not seen him for three years preceding his examination a few days before the trial of the present issue. He testified:
On cross-examination Dr. Battalora said he had recommended a spinal fusion prior
The two doctors were not entirely in agreement in their reading of the X ray plates on the matter of intervertebral spacing, but Dr. Battalora did say he could see no difference in the X rays made upon his direction and those made for Dr. Rose. The difference therefore was one of professional interpretation.
Dr. Battalora further testified:
"BY THE COURT:
The fact that the statute gives the force of prima facie presumption of correctness to the court-appointed expert's findings is indicative of legislative intent that this testimony carries a significant weight. An added measure of probative value is clearly implied by the statute in our opinion. It appears that the court in Dees v. Louisiana Oil Refining Corp., 162 So. 597 (La.App.2d Cir. 1935), was of the same opinion. There it upheld the trial judge who apparently applied this rationale. We think the reason for this is obvious. The court-appointed medical expert is a wholly disinterested party, and it is more likely that his examination will be entirely objective. He has given no previous report or testimony which he might be inclined, though honestly, to vindicate. One who accepts the responsibility of performing a professional service which calls for the expression of an expert opinion is more likely to be sympathetic toward the interest of his client or patient. This is a factor to be considered, especially when the issue is a close one.
This prima facie presumption should not require a greater amount of evidence to refute than any other prima facie presumption, but a mere contrary opinion is not alone sufficient to overturn it. To hold otherwise would render LSA-R.S. 23:-1123 meaningless.
It has been said:
The same may be said of the discontinuance or modification of the award.
If mere contradiction is construed as rebuttal sufficient to overcome a prima facie presumption, then the relief provided the employer by LSA-R.S. 23:1331 is more fanciful than real. If this promised relief were denied defendants in this case, it would be difficult to conceive of a case in which it could be granted and the legislative intent would be defeated. We therefore hold that defendants have discharged the burden of proof required by law by a preponderance of the evidence.
The judgment appealed from, insofar as it dismisses defendants' petition for modification of the judgment of January 29, 1964, is reversed. Judgment is now rendered in favor of defendants Elwood J. Gross, doing business as Cotton Construction Company, and United States Casualty Company against the plaintiff Victor D. Carlock. We decree that the compensation benefits heretofore paid to plaintiff pursuant to the judgment herein of January 29, 1964, as affirmed by this court in Carlock v. Gross, supra, are in full satisfaction of all claims resulting from the injury sustained by him in the course of his employment, December 8, 1961. Defendants are discharged from further payments and plaintiff's compensation is terminated.
Plaintiff-appellee is cast for costs of this proceeding in both courts.
Reversed and judgment rendered.