#### Charles CASNAVE v. RITTNER ENGINEERING COMPANY.

No. 9024.

Court of Appeal of Louisiana, Fourth Circuit.

May 10, 1978.

Rehearing Denied July 26, 1978.

Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellant.

Francipane, Regan & St. Pee’ Wayne H. Scheuermann, New Orleans, for defendant-appellee.

Before REDMANN, LEMMON, STOUL-IG, BOUTALL and BEER, JJ.

STOULIG, Judge.

Plaintiff, Charles Casnave, has appealed a judgment dismissing his suit for maximum workmen’s compensation benefits for an industrial accident in which he allegedly aggravated a pre-existing back problem that has left him totally and permanently disabled. We affirm.

Plaintiff’s medical history discloses about 12 years prior to this alleged incident, he had lumbar disc surgery. On October 17, 1975, plaintiff received a compromise compensation settlement of $13,640 plus medical of $1,534.26 for a back injury allegedly incurred when he was working for Broad-moor Corporation. On September 22, 1976 plaintiff allegedly sustained an injury to his back while in the employ of defendant, Rittner Engineering Company. The accident was alleged to have occurred when plaintiff was straightening an iron rod on a concrete form.

In reasons dictated in the record the trial judge concluded the plaintiff failed to prove that the admitted back disability became permanently worsened by the alleged accident.1 The trial judge indicated plaintiff’s testimony was insufficient to carry the burden. This determination reflects the trial court’s evaluation of the credibility and the probative value of plaintiff’s testimony.

Appellant relies on those cases that hold a plaintiff’s testimony alone is sufficient to establish an accident occurred. *Brister v. Great American Insurance Company,*171 So.2d 769 (La.App. 3d Cir. 1965). But in such cases the credibility of the plaintiff cannot be questionable.

Appellant’s testimony that he had fully recovered from all previous back insults and was able to perform strenuous labor with*204out ill effects prior to the alleged accident is not supported by the medical testimony. He testified that Dr. Daniel Sinclair, an orthopedist, either stated or implied that plaintiff was fit to perform heavy labor three months before he accepted employment with defendant, Rittner Engineering Company. Dr. Sinclair denied this and testified that during his treatment of the plaintiff for the Broadmoor accident from November 13, 1974 through September 19752 he did not give plaintiff any advice other than to stay away from heavy manual labor and to seek rehabilitation for a different type of employment.

During the course of his testimony Dr. Sinclair confirmed that plaintiff did have a back problem but his examination of plaintiff’s back after the Rittner accident revealed that it was in a better condition than after the Broadmoor incident. The substance of Dr. Sinclair’s testimony is that if in fact there was an accident plaintiff had fully recovered from its ill effects. The record establishes plaintiff received compensation during the period he possibly could have suffered temporary disability.

Plaintiff’s credibility is in doubt and his entire case hinges on it. The medical findings that support disability from a September 1976 accident are based solely on the history he gives. The evidence confirms the wisdom of the trial court in resolving the issue of credibility against plaintiff.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., concurs with written reasons.

LEMMON, J., dissents with written reasons.

1

. The trial judge stated: “All of the elements are present, except, the Court feels that the plaintiff has failed to carry the burden of proof that he, as a matter of fact, was injured on the job or, that there was an aggravation of that injury on the job.”

2

. Dr. Sinclair did not discharge plaintiff from further treatment in September 1975. Plaintiff failed to return for further treatment.

REDMANN, Judge,

concurring.

The accident sued upon left plaintiff, as the only immediately post-accident medical evidence shows, with “muscle spasm”, “objective evidence of recent injury”, “probably an acute herniation of nucleus pulpo-sus”. This injury totally disabled him to do the work he had in fact been doing although doctors thought he should not or could not. However, plaintiff recovered from that accident to the level of his pre-ac-cident physical condition, and therefore his disability *attributable to that accident*had disappeared, as believable medical advice informed defendant, prior to the stoppage of compensation payments.

LEMMON, Judge,

dissenting.

The trial court erred as a matter of law in holding that plaintiff had not proved the occurrence of an accident. Defendant’s supervisor admitted he received a report of an accident from plaintiff and another employee, and the company doctor immediately thereafter found objective evidence of “recent” injury consistent with that described by plaintiff.

The more difficult issue is the disability determination, especially defendant’s contention that plaintiff was already disabled prior to the September, 1976 accident.

After the September, 1974 accident, plaintiff was treated by Dr. Sinclair, who advised plaintiff against returning to heavy labor. However, Dr. Sinclair did not see plaintiff between September, 1975 and the accident one year later. Since plaintiff sought no further medical treatment from any other doctor, there is no medical evidence as to his condition in September, 1976.1

A significant consideration as to plaintiff’s condition in September, 1976 is the fact that he worked for defendant as a laborer at $6.81 per hour for a period of *205perhaps two months (the period stated by defendant in Exhibit P-2, although other evidence shows three weeks), since it is highly unlikely defendant would pay those wages to someone who is incapable of performing laboring work. Inasmuch as plaintiff did in fact engage in heavy manual labor for several weeks prior to September 22, 1976 and could no longer do so immediately after the accident, I would hold that he has proved total and permanent disability resulting from that accident. When an occupational injury brings about disability from a latent prior condition (even one resulting from a previous occupational injury), the entire disability is compensable, in the absence of statutory provisions for apportionment or for second injury funds.

1

. Dr. Sinclair’s statement that plaintiffs condition in November, 1976 was approximately equal to that at the last visit in September, 1975 is not conclusive of plaintiffs condition at the time of the accident one year after the last visit.