Ball v. American Marine Corp.
| Decision Date | 16 December 1963 |
| Docket Number | No. 46727,46727 |
| Citation | 159 So.2d 138,245 La. 515 |
| Parties | Joe BALL v. AMERICAN MARINE CORPORATION. |
| Court | Louisiana Supreme Court |
Hattier, Schroeder & Kuntz, Herman M. Schroeder, New Orleans, for plaintiff-relator.
Normann & Normann, New Orleans, for defendant-respondent.
Plaintiff, a common laborer, injured his back in the course and scope of his employment. Alleging himself to be totally and permanently disabled as a result of this injury, he instituted suit to recover compensation at the maximum rate of $35.00 per week for a period not to exceed 400 weeks. After trial on the merits the district court found that plaintiff was entitled to compensation not for permanent and total disability, but for the loss of a physical function under R.S. 23:1221(4)(p), and awarded him $25.00 per week for a period of one hundred weeks less a credit for compensation previously paid. From this judgment plaintiff appealed to the Court of Appeal, Fourth Circuit. That court affirmed the judgment awarding plaintiff compensation for the loss of a physical function. 1 See 150 So.2d 865.
Plaintiff applied for and was granted writs by this court, 244 La. 404, 152 So.2d 214. It is his contention that under the facts of this case he is entitled to be adjudged totally and permanently disabled and to be paid workmen's compensation accordingly, 2 and this is the sole question which this case presents.
There seems to be no dispute as to the law applicable to the case. It is well settled that even though a common laborer is not completely incapacitated, he may nevertheless be considered as totally and permanently disabled within the meaning of the compensation statute if the injury has substantially decreased his ability to compete with ablebodied workers in the flexible general labor market. Olivier v. Liberty Mut. Ins. Co., 241 La. 745, 131 So.2d 50; Blanchard v. Pittsburgh-Des Moines Steel Co., La.App., 59 So.2d 384; Lathers v. Schuylkill Products Co., Inc., La.App., 111 So.2d 530; Malone, Louisiana Workmen's Compensation Law and Practice, sec. 275, p. 334. The law does not expect, contemplate, or require that an employee should work in pain in order to earn a living, and where substantial pain results from an injury, the medical estimate of percentage disability will be disregarded and compensation for total disability will be awarded. Brannon v. Zurich General Accident & Liability Ins. Co., 224 La. 161, 69 So.2d 1; Hunter v. Continental Casualty Co., La.App., 126 So.2d 394.
The facts of this case are fully stated in the Court of Appeal's opinion, and we shall summarize them only briefly. As a result of the accident on January 18, 1961, plaintiff suffered a ruptured intervertebral disc. For this injury he was treated by two physicians and was under their care for approximately seven months, during which they saw and examined him on numerous occasions. The ruptured disc was surgically removed on February 27, 1961, by one of these doctors, but plaintiff remained under their care and treatment until discharged by one in September, 1961, and by the other in August, 1961.
To prove his case plaintiff relies on his own testimony and on that of a doctor who examined him only once and without benefit of X-rays, evidently for the purpose of this litigation. The testimony of the two treating physicians, who were called by the defendant, and that of the doctor called by plaintiff are in direct conflict as to plaintiff's capacity to perform heavy manual labor. Plaintiff's doctor from his examination concluded that plaintiff was incapacitated to perform heavy manual labor, and that to be able to return to such labor he would have to undergo a spinal fusion.
On the other hand one of the treating physicians testified that plaintiff had entirely recovered from the effects both of the accident and of the operation, and could do all the work of a common laborer, that he did not consider plaintiff had a percentage residual disability, and that a spinal fusion was not indicated.
The other treating physician testified that at the time he discharged plaintiff in September, 1961, there was recovery from the effects both of the accident and of the operation, and that plaintiff could have returned to work; that plaintiff made no complaints of pain in either leg; that plainitiff's injury would not...
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...in the common labor market. Therefore, the claimant is not entitled to recover benefits for total disability. Ball v. American Marine Corp., 245 La. 515, 159 So.2d 138. B. Partial Alternatively, counsel argues that the claimant is entitled at least to an award for partial disability. LSA-R.......
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