#### Lloyd LEWIS, Sr. v. Attorney Lionel R. COLLINS.

No. 8043.

Court of Appeal of Louisiana, Fourth Circuit.

Aug. 5, 1977.

Rehearings Denied Sept. 9, 1977.

Lloyd Lewis, Sr., in pro. per.

A. M. Trudeau, Jr., New Orleans, for defendant-appellee.

Before REDMANN, BOUTALL, SCHOTT, MORIAL and BEER, JJ.

MORIAL, Judge.

In 1964 plaintiff employed defendant attorney to handle a workmen’s compensation claim against his employer. Defendant filed a suit in plaintiff’s behalf in May, 1965, and the case was tried in May of 1967 with the result that plaintiff’s suit was dismissed. The basis for the suit was an accident which allegedly occurred on May 29, 1964. That case was appealed to this court and was affirmed in *Lewis v. Celotex Corporation,*222 So.2d 647 (La.App. 4th Cir. 1969).

Plaintiff initiated these proceedings in November, 1969, claiming damages on the basis of defendant’s malpractice in connection with the handling of his claim. He alleged that the accident which produced the injury and attendant disability occurred in September, 1963, and that defendant had allowed his claim to prescribe. He also alleged a re-injury on May 29, 1964, and claimed that defendant had failed in his duty to him by neglecting to file in evidence V. A. Hospital records and to call available witnesses to prove his case. The case was originally tried in May, 1971, with the result that plaintiff’s suit was dismissed. On appeal to this court the judgment was set aside and remanded to the trial court for additional evidence, *Lewis v. Collins,*260 So.2d 357 (La.App. 4th Cir. 1972).

The previous judgment of this court settled certain issues. We held that the defendant’s professional judgment in basing the compensation claim on the 1964 accident as opposed to the 1963 accident was a reasonable one, so that plaintiff is not entitled to recover against defendant on the theory that his claim based on the 1963 accident was allowed to prescribe by the fault of defendant. Furthermore, we held that defendant was not guilty of any negligence by his failure to call as witnesses in the compensation trial plaintiff’s brother *445and wife. However, we held that defendant did breach his responsibility to plaintiff when he failed to obtain the V. A. records or the V. A. physicians’ testimony.

We pointed out that we were “unable to say that the presentation of this (missing evidence) would have assured that plaintiff would win his case . . ; ” that the mere fact that defendant breached his obligation does not by itself entitle plaintiff to an award; but that plaintiff must prove that the breach caused damages, in this case the loss of the compensation suit. We concluded with the following:

> “The question the trial court must determine on remand is whether, with the added evidence of the V. A. hospital records and perhaps testimony of the V. A. physicians, in addition to Dr. Brown’s opinion (and despite contrary evidence), the conclusion would probably have been reached that a herniated disc did occur as a result of the May 29, 1964 incident and did totally and permanently disable plaintiff or otherwise entitle him to benefits. If so, defendant is liable to plaintiff for the then appropriate amount of award of compensation.”

At the trial of the case on remand plaintiff produced the V. A. records along with the testimony of Drs. James Hinson, Ger-non Brown, Jr. and Kenneth Vogel. The V. A. record and the testimony of Dr. Hinson did indeed establish that on May 29, 1964, Lewis presented himself at the Veterans Hospital. The record of the Veterans Hospital recited that there was a long history of left sided back pain with radiation to the hip and knee and numbness of the toe. It was reported “pain is persistent but more severe in episodes after hard work several days. Coughing (increased) pain. Probably positive leg raising test. Story is suggestive of spinal disc pathology. Patient in moderate to severe pain at times (i. e., to night).”

As admitting officer for the day, Dr. Hin-son ordered an examination for urinary tract infection and an orthopedic evaluation. It was determined that Lewis did have a urinary tract infection and gave an impression of musculo-fascial strain. The findings did not warrant hospitalization, and since the V. A. had no out-patient treatment facility for Lewis, he was referred to his family doctor.

While this evidence gives some support to Lewis’ claims, all of the evidence in this case must be considered for a determination of workmen’s compensation disability. The trial judge, after considering all of the evidence, concluded:

> “The court concludes that from all the facts under consideration petitioner has established at best a possibility of disability, which proof is insufficient for recovery. *Roberts v. M. S. Carroll Co., Inc., et al,*[La.App.], 68 So.2d 689. The Veterans Administration Hospital records, and the deposition of Dr. Hinson by themselves do not convince the court that the burden of proof was carried by petitioner to establish that he suffered a herniated disc as a result of the May 29, 1964 incident. Further, even coupling this evidence with the report of Dr. Brown as introduced in the workmens compensation suit, the court cannot conclude that petitioner has carried the burden of proof sufficient to grant recovery for total and permanent disability.”

The record supports the conclusion of the trial judge that plaintiff failed to carry the required burden of proof to establish that he suffered a herniated disc as a result of a May 29, 1964 on the job accident.

First, because the malpractice suit was tried by a different judge than the compensation suit itself, we believe it important to point out the finding of the trial judge in the compensation case, which we approved in our affirmance in *Lewis v. Celotex Corp.,*222 So.2d beginning at p. 648:

> “While an examination by Dr. Gregoratti, his personal physician, on June 2, 1964 and June 8, 1964 indicated some muscle spasm, in the lumbar area, in view of plaintiff’s medical history of back problems, it would be most presumptuous to conclude that these symptoms resulted from an industrial accident in the absence of some proof of the accident. Examina*446tion and treatment by Dr. Logan, Dr. Gregoratti and Dr. Calicchia on June 22, 1964 revealed no objective orthopedic or neurological basis for plaintiff’s complaints, and he was discharged on July 24, 1964 by his physician, Dr. Gregoratti, with no positive findings.

> “The law is quite clear that a plaintiff in a compensation case must establish his claim to a legal certainty and by a reasonable preponderance of the evidence. The only evidence supporting plaintiff’s claim here is his own testimony, and the medical evidence submitted does not sustain his position.”

Next, we note that although Lewis claimed to have been hurt on the job on September 17,1963, when he complained of pain in the groin, on September 18, 1963, when he complained of pain in the side and back, and finally on May 29,1964, when he took his complaints to the V. A. Hospital, there still remains only his testimony that he was hurt on the job. As to the first incidents, the witnesses he produced either did not remember any accident or did not see any. As to the last, not only did he not produce a witness, but he did not even report the accident. This at a time when, according to his testimony, his attorney was handling his 1963 workmen’s compensation claim.1 We further note his statement to Dr. Hinson on May 29 of his “long history” of left-sided back pain which seems consistent with Dr. Logan’s statement of “12 year history” on February 28,1964 and the statement of “13 year history” and “12 year history” in the V. A. Hospital records of September 2, 1964.

We believe it especially important to note some history of this man’s complaints in view of the testimony of Dr. Kenneth Vo-gel, who operated upon Lewis in 1968, performing an interlaminal removal of the L4 disc from the right side with inspection of the L5 disc. At that time, Lewis was being treated at the V. A. Hospital for degenerative disc disease. The doctor’s testimony makes it clear that the pathology he found could be caused equally by a job-related trauma or by degeneration caused by the aging process. Of course, the doctor’s treatment came a year after the trial, and cannot be considered as having anything to do with the attorney’s handling of the case. The importance of it now is to point up that the history given by the patient is persuasive of the determination of trauma or degeneration in this case. It is interesting to note the 1964 V. A. history of 12 years had in 1968 shrunk to 5 years as stated to Dr. Vogel.

Turning to Lewis’ medical history, we first note his complaints in September, 1963 with pain in the groin. Treatment was undertaken by the employer’s doctor, Dr. Sam Logan, for medical disability and not job-related accident disability. Dr. Logan could not find the cause of his complaints despite an exploratory operation, during which he removed Lewis’ appendix. There then follow a succession of doctors who examined this man with negative results. Later examinations began to show a suspicious narrowing of the disc spaces culminating in Dr. Vogel’s operation. According to the V. A. record in evidence, he was apparently treated later for other problems.

Considering all of the evidence, we find sufficient basis to support the conclusion of the trial judge that Lewis has not carried the burden of proof as stated in *Roberts v. M. S. Carroll Co., Inc.,*supra. Accordingly, we cannot find that the action or non-action of his attorney caused his loss.

The judgment is affirmed.

*AFFIRMED.*

1

. His attorney testified that Lewis had not consulted him for job-related injury but for a possible malpractice claim against the doctor who treated him for his September, 1963 complaints.

SCHOTT, Judge,

with whom REDMANN, Judge, joins, dissenting.

The majority’s summary of the evidence of record must be supplemented for an appreciation of my opinion.

Included in the V.A. records, first produced at the trial after remand, are reports of *447X-rays taken of plaintiff’s lumbar spine on March 2, 1964, and September 2, 1964, which are significant and will be later referred to in connection with the testimony of Dr. Vogel. They also contain a report of the treatment administered to plaintiff at the V.A. Hospital in July, 1968, when plaintiff was finally treated for his herniated disc. It should be emphasized here, as was mentioned in the previous opinion of this court, that it was not until after the workmen’s compensation case was tried (in May, 1967) that plaintiff’s herniated disc was definitely diagnosed and the surgery was performed on him by Dr. Vogel (in July, 1968). For this reason much of Dr. Vogel’s testimony is irrelevant to the issue of defendant’s malpractice since such evidence was obviously unavailable at the time the workmen’s compensation case was tried. Nevertheless, at least two points made by Dr. Vogel were pertinent and deserve mention here.

Dr. Vogel was asked to compare the two X-ray reports mentioned above which read as follows:

> “3/2/64: MULTIPLE VIEWS OF THE LUMBOSACRAL SPINE REVEALS the vertebral bodies to be of normal height. No evidence of narrowing of the interver-tebral disc space is noted. Early hyper-trophic osteoarthritic changes are present, however, no evidence of spondy-lysis, spondylolisthesis or inflammatory or neoplastic disease is noted.”

> “9/2/64: EXAMINATION OF THE LUMBOSACRAL SPINE REVEALS narrowing of the 3rd and 4th cervical interspaces with associated hypertrophic change. Findings are compatible with disc pathology at these levels. Failure of closure of the neural arch of SI is noted. Apophyseal, sacroiliac, and hip joints do not appear unusual. There is no evidence of fracture, spondylolisthesis, inflammatory, or neoplastic disease.

> “CONCLUSION: Radiographic changes compatible with disc pathology at the level of the 3rd and 4th lumbar interspaces.”

The doctor testified that the X-ray report of March 2 was relatively normal, showing the degree of wear and tear in the back which would be expected from degenerative arthritis, whereas the second X-ray report did suggest an abnormal condition. He concluded that if there had been a traumatic incident between March and September “one could say that the disc incurred further damage at this time and now was exhibiting the narrowing [of the interverte-bral space] . . . ”

Dr. Vogel also testified that, based on the assumption that there was a traumatic incident in September of 1963, aggravated by a second incident in May of 1964, the necessity for the lumbar myelogram and laminec-tomy was the direct result of the initial injury.

At the trial of the workmen’s compensation case, a report by Dr. Gernon Brown, an orthopedist, March 19,1965, was introduced in evidence. He then reported that there was an impairment in the function of plaintiff’s back and expressed the opinion that the symptoms may be due to nerve root irritation, possibly from a herniated disc, and thought that plaintiff should undergo a myelogram at that time. At the trial of the malpractice case on remand, Dr. Brown was called as a witness for the first time. In his testimony he expanded considerably on what had been contained in the short letter report and quoted the following from his office record:

> “Opinion: Examination of this patient reveals evidence of impairment in the function of the back.’ There is a decreased range of motion in the patient’s lumbar spine. In view of the patient’s complaints of numbness in both lower extremities together with the complaints of radiating pain on straight leg raising I believe his symptoms may be attributable to nerve root irritation.

> “In my opinion, Mr. Lewis should undergo myelograph examination of his lumbar spine.”

Dr. Brown also expressed the opinion that as of March, 1965, plaintiff was disabled because of the impairment in the function of his back.

*448In reasons for the judgment now on appeal, the trial court considered the evidence presented at the trial on remand as to why the Veterans Administration Hospital records were not introduced at the workmen’s compensation trial. Based on the earlier opinion of this court in this malpractice proceeding, it was already determined that defendant’s failure to produce those records constituted a breach of defendant’s professional responsibility, and perhaps further evidence as to why the records were not produced was irrelevant at the trial on remand. Nevertheless, the court considered defendant’s testimony that the reason why the records were not produced was because of plaintiff’s decision not to execute a form required by the V.A. in order for him to authorize the release of the records, and the trial court specifically resolved the conflict in the testimony between plaintiff and defendant on this point in favor of plaintiff. This was a credibility call by the trial court which should not be questioned by us on this appeal.

The trial court discussed the testimony of Dr. Hinson, the entry in the V.A. records of the orthopedic evaluation and an X-ray report of September 2. He also mentioned a report made by a Dr. Jarrell in the V.A. record in which it was noted that plaintiff had no muscle spasm and did not require hospitalization at that time. The trial court then concluded as follows:

> “The court must consider the testimony of Dr. Hart/Hunt, the orthopedic surgeon to have greater weight than that of Doctor Hinson, who although a resident doctor at the Veterans Administration Hospital was by his own admission a specialist in internal medicine. It seems logical that Dr. Hinson did not seriously disagree with Dr. Hart/Hunt’s diagnosis as he refused admission eligibility to petitioner on the basis of Dr. Hart/Hunt’s findings (deposition page 5).

> “Two other doctors made notes in the hospital records, Drs. Jarrell and Hendler. Dr. Jarrell states there was no muscle spasm and no need for hospitalization. Dr. Hendler concluded ‘ . changes compatible with disc pathology

> “The court concludes that from all the facts under consideration petitioner has established at best a possibility of disability, which proof is insufficient for recovery. *Roberts v. M. S. Carroll Co., Inc., et a1*[La.App.], 68 So.2d 689. The Veterans Administration Hospital records, and the deposition of Dr. Hinson by themselves do not convince the court that the burden of proof was carried by petitioner to establish that he suffered a herniated disc as a result of the May 29,1964 incident. Further, even coupling this evidence with the report of Dr. Brown as introduced in the workmens compensation suit the court cannot conclude that petitioner has carried the burden of proof sufficient to grant recovery for total and permanent disability.”

I believe the trial judge reached this erroneous conclusion because he took an incorrect approach to the problem which was before him after the case was remanded and, in part, because he failed to consider some of the evidence which was presented at the trial on remand.

As I appreciate plaintiff’s burden of proof, he undertook to establish that except for defendant’s breach of his responsibility in handling of his workmen’s compensation case it is more probable than not that he would have won that case. I do not believe that this is precisely the same burden that plaintiff had in the workmen’s compensation case because the inquiry was not simply whether plaintiff was injured on May 29, 1964, and whether that injury caused him to be disabled as of the time of the trial in May of 1967, but instead whether defendant failed in his duty toward plaintiff in the handling of the case and whether that failure more probably than not caused his workmen’s compensation case to be dismissed.

As was pointed out by this court in the opinion affirming the dismissal of the workmen’s compensation case, the critical issue in that case was whether plaintiff had an accident on his job on May 29, 1964, at all. *449At that trial the testimony of the plaintiff’s wife, brother, and sister-in-law were not introduced nor were the V.A. records produced. I am convinced that had this evidence been presented at the compensation trial the court would have been convinced that the on-the-job accident did occur. Unfortunately, our task here is complicated by the fact that we held in our earlier opinion of this malpractice case that it was not negligence on defendant’s part which caused the failure of the production of the lay witnesses but rather was plaintiff’s fault, and we are bound by that conclusion. Thus, our inquiry is whether the trial judge hearing the workmen’s compensation case would have decided that plaintiff suffered an accident on the job on May 29,1964, had he reviewed the V.A. Hospital records in addition to the evidence that was then presented to him in 1967.

It is regrettable that the malpractice case was not tried before the same trial judge who heard the compensation case because he would surely be in the best position to decide whether he would have made a different decision had these records been available to him, but unfortunately, this is not the case and, like the trial judge in the malpractice case, we must now decide what that original trial judge would have decided with this additional evidence.

The trial judge in the instant case, in his reasons for judgment, did not address himself to that issue but after discussing the V.A. report decided the case against plaintiff on the basis that a disability was not established resulting from the May 29,1964, incident. From those reasons the trial judge seems to have concluded that the incident itself was established.

The V.A. Hospital record of May 29 standing alone does not contain a specific statement by plaintiff that he was injured on the job that day. It does nothing more than establish that he did seek medical attention on the night of the accident. But there is an entry in the V.A. records on the following morning to the effect that plaintiff did sustain an accident at work on the previous day and his pain increased that evening. I believe that had the trial judge hearing the workmen’s compensation case seen these records he would have decided that plaintiff proved the occurrence of the accident.

The next question is whether the trial judge hearing the workmen’s compensation case would have concluded that the plaintiff was disabled at the time of the trial as a result of that accident had defendant produced evidence which was available to him. The trial judge in the instant case decided this issue adversely to plaintiff, and on this point I disagree.

The above quotation from the trial court’s reasons for judgment contains errors of fact which led him to arrive at an erroneous conclusion on this issue. In the first place, he did not attach great weight to Dr. Hinson’s testimony observing that he was a specialist in internal medicine as opposed to Dr. Hart/Hunt, the orthopedist. The trial judge apparently reached the conclusion that while Dr. Hinson felt plaintiff was disabled on May 29 and 30, 1964, Dr. Hart/Hunt did not find this to be the case, and Dr. Hinson “refused admission eligibility to petitioner on the basis of Dr. Hart/Hunt’s findings . . . ” We do not derive from the testimony of Dr. Hin-son and the reports by him and Dr. Hart/Hunt any connotation that plaintiff was not hurt. As we said, Dr. Hart/Hunt specifically referred on May 30 to the fact that plaintiff had the last episode of hurting himself by twisting and lifting on the day before while at work and that this pain increased during the night before. He specifically diagnosed musculo-fascial strain. The record does not say why plaintiff was denied admission to the hospital but we surmise that Veterans Administration Hospital may have refused admission because this was considered to be an on-the-job accident for which he might not have been entitled to treatment at the V.A. Hospital.

The trial judge referred to other doctors who made notes in the hospital records, Drs. Jarrell and Hendler, and he quotes from Dr. Jarrell’s report that there was no muscle spasm and no need for hospitalization. This *450note was made by Dr. Jarrell when plaintiff was examined at the Y.A. Hospital on March 2, 1964, almost three months before the accident. Thus, Dr. Jarrell’s findings had nothing to do with the question of whether plaintiff was disabled as a result of this accident except for the fact that his back was predisposed to the injury perhaps as a result of the earlier injury of September, 1963. Furthermore, the trial judge’s reference to Dr. Hendler has to do with the X-ray report of September 2,1964, which is quoted above in this opinion. Standing alone that report means little if anything, but by reference to the testimony of Dr. Vogel this X-ray report does corroborate that plaintiff’s accident of May 29, 1964, caused substantial changes between the third and fourth lumbar vertebrae.

The trial judge makes no reference to the testimony of Dr. Vogel and Dr. Brown taken at the trial on remand, which we believe forms the basis of another error in his findings.

As noted, Dr. Brown testified without equivocation that plaintiff as of March, 1965, should have been subjected to a mye-logram. Dr. Vogel testified that the changes in the X-ray photographs of March and September, 1964, suggested that a traumatic incident had occurred in the meantime. There is no explanation in this record from defendant as to why no further orthopedic examination was made of plaintiff from Dr. Brown’s examination in March, 1965, until the trial of the workmen’s compensation case in May of 1967. We also have at the trial of the malpractice case testimony from Dr. Vogel that plaintiff’s condition for which he was eventually operated on began in May, 1964, and we must conclude that if plaintiff had been subjected to competent orthopedic examination and/or myelographic examination between March, 1965, when he was seen by Dr. Brown, and the date of the trial in 1967, his disability would have been established to the satisfaction of the trial judge. We think further that armed with the reports from Dr. Brown and the X-ray reports from the Veterans Administration Hospital, defendant’s duty to plaintiff encompassed that of consulting further with medical experts who, in all probability, would have made the necessary tests on plaintiff and would have concluded as of May, 1967, plaintiff was disabled as a result of the accident of May, 1964.

This has been a difficult case to decide. We have been required to review not only the activities of an attorney in the handling of the contested workmen’s compensation trial along with the preparations incident thereto, but also the probable decision of the trial judge in the workmen’s compensation case in the light of additional evidence which may have been presented by the attorney. In his brief to this court, plaintiff concedes that the evidence is weak with regard to proof of disability, but I am persuaded by his argument that the proper steps were not taken in the approximately two years between the filing of the suit and the time of the workmen’s compensation trial for defendant to work up the evidence which he knew or should have known would ultimately be necessary if he were to adequately represent his client. The weakness of the evidence presented was the result of defendant’s failure and was not the fault of plaintiff who relied on the professional competence of defendant to handle the case properly.

I respectfully dissent.