Allums v. Dixie Metals Co.
| Decision Date | 26 March 1979 |
| Docket Number | No. 13827,13827 |
| Citation | 369 So.2d 1204 |
| Parties | Jimmy Davis ALLUMS, Plaintiff-Appellee, v. DIXIE METALS COMPANY, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Mayer, Smith & Roberts by Walter O. Hunter, Jr., Shreveport, for defendant-appellant.
Fish & Montgomery by John W. Montgomery and Bruce M. Bolin, Minden, for plaintiff-appellee.
Before HALL, MARVIN and JONES, JJ.
Defendants, Dixie Metals Company and its insurer, Travelers Insurance Company, appeal from a judgment finding plaintiff, Jimmy Davis Allums, totally and permanently disabled as a result of lead poisoning incurred while employed at defendant's factory and ordering them to pay appropriate workmen's compensation benefits, penalties and attorney's fees. For the reasons expressed by the trial court in its written reasons for judgment and the reasons expressed below, we amend the judgment to increase the award of attorney's fees and otherwise affirm.
Defendants contend the trial court erred in the following seven respects by:
(1) Determining plaintiff's physical condition is the result of an occupational disease;
(2) Determining plaintiff is totally and permanently disabled;
(3) Excluding the results of blood tests administered to plaintiff during his employment;
(4) Excluding the majority of Dr. Donald R. Lynam's testimony;
(5) Not requiring plaintiff to prove his case by an overwhelming preponderance of the evidence;
(6) Assessing defendants with statutory penalties and attorney's fees; and
(7) Ordering weekly compensation benefits to begin on October 5, 1976, rather than after demand was made in June, 1977.
Plaintiff answered defendants' appeal requesting an increase in attorney's fees from $3,000 to $4,000.
Defendant recycles old batteries into nearly pure lead. First, the tops of the batteries are cut off and the plates are removed and smelted in a furnace. The smelting removes a substantial amount of the nonlead material. The resulting lead is placed in a 60-ton kettle, "lead pot", where the lead is melted and the residual impurities are removed. The impurities are skimmed off the top of the molten lead by workmen using shovels. The lead is brought up to chemical specification and then poured into molds in preparation for delivery to the purchaser. The vapors and smoke from the furnace are routed through the "baghouse" where a succession of bags filter it to collect the flue dust. There is no filtering device for the lead pot. Flue dust contains lead. The evidence established flue dust was prevalent throughout the factory and was on the floor, water fountains, workers' clothes and skin, and in the air.
Defendant recognizes the hazards of this recycling operation and takes many safety precautions. It requires the use of respirators by all employees with filter changes as needed, issues special clothing not to be removed from the plant, specially instructs employees concerning eating, drinking and smoking while on the job and requires bathing before leaving the premises. Defendant also administers blood tests on all of its employees periodically. Those with too high serum lead level and those whose serum lead level has significantly increased over the last test are reinstructed in the use of safety equipment and procedures or removed from the lead-laden environment altogether until their serum lead level returns to normal.
Plaintiff has been employed as a manual laborer in various jobs since he was 14. According to all the evidence, including testimony by defendant's employees, he was an excellent worker. Plaintiff was employed by defendant for a little over two years from June 10, 1974, until October 4, 1976. However, he only actually worked for approximately 121/2 months of this period in three different segments because of a cervical neck injury he suffered while on the job which eventually required a cervical fusion.
Plaintiff first worked as a maintenance man for defendant. His responsibilities took him to all parts of the factory. On returning to work after his cervical fusion, plaintiff worked first in the baghouse and then skimming slag from the lead pot. Plaintiff finally left the employ of defendant because of a pay dispute. It is uncontradicted that plaintiff felt weak and was suffering some weight loss when he left and that he made no complaints in this respect to defendant.
Plaintiff, concerned about his weight loss, initially went to his family physician, Dr. Sidney Pittman. Dr. Pittman referred plaintiff to Dr. William R. Giddens in Shreveport who in turn referred plaintiff to Dr. Michael O. Fleming of the Family Service Clinic of the LSU Medical School because of the reduced cost.
Dr. Fleming saw plaintiff on February 1, 1977. At that time he noticed plaintiff was suffering from symmetrical atrophy of the lower extremities, a loss of strength and endurance, but not sensation, and foot drop. On finding that defendant worked at a battery recycling factory, he arranged to have several tests administered. The blood test showed a serum lead level of 54 micrograms percent in plaintiff's blood. Normal level for an industrial worker is around 60 micrograms percent. Dr. Fleming also administered a provocative test to determine the amount of lead in plaintiff's body. This test consists of administering doses of penicillamine, a chelating agent designed to leach the lead out of the bones where the body stores it, and then taking a 24-hour urine sample. Plaintiff's urinary lead was 118 micrograms per liter. Ten micrograms per liter is considered normal. Also, plaintiff's serum lead level rose to 152 micrograms percent.
Dr. Fleming testified that initially the lead is absorbed into the blood and soft tissues, but at some point it becomes excessive and then is absorbed and stored in the bone in an inert form. The absorption rate is approximately ten times faster than the excretion rate, therefore, there is a build-up of lead in the bones. Based on the symptoms and the high amount of lead in the body of plaintiff, Dr. Fleming concluded plaintiff had suffered lead poisoning which resulted in lead neuropathy, a dissolution of the segments of the sheath surrounding the nerves so that the nerves can no longer transmit impulses. This lead neuropathy caused the symptoms mentioned above. Dr. Fleming administered penicillamine for three and one-half months in an attempt to remove the lead from plaintiff's body and prescribed a physical therapy regime.
Dr. Fleming's supervisor, Dr. Charles Sias, concurred in the diagnosis. Dr. Fleming and Dr. Sias were also of the opinion plaintiff has reached maximum improvement at this time and that he will never be able to hold any employment...
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