Bergeron v. New Amsterdam Cas. Co.

• Decision Date: 04 June 1962
• Docket Number: No. 45936,45936
• Citation: 141 So.2d 832,243 La. 108
• Parties: John Allen BERGERON et al. v. NEW AMSTERDAM CASUALTY COMPANY.
• Court: Louisiana Supreme Court

Page 832

141 So.2d 832

243 La. 108

John Allen BERGERON et al. v.NEW AMSTERDAM CASUALTY COMPANY.

No. 45936.

Supreme Court of Louisiana.

June 4, 1962.

Guillory, Guillory & Guillory, Isom J. Guillory, Jr., Eunice, for plaintiffs-relators.

Voorhies, Labbe , Voorhies, Fontenot & Leonard, J. Winston Fontenot, Lafayette, for defendant-respondent.

SANDERS, Justice.

While performing her duties as a waitress in a cafe, Mrs. Verna Whittaker Bergeron fell and suffered a miscarriage, or abortion.Her pregnancy was of approximately six weeks' duration at the time of the accident.She was disabled from February 21, 1960, to April 3, 1960, at which time she resumed her regular duties.No residual injury remained.¹

Mrs. Bergeron and her husband instituted this suit in tort for damages and in the alternative in workmen's compensation against New Amsterdam Casualty Company, the workmen's compensation and liability insurer of her employer.The demand for workmen's compensation was based upon LSA-R.S. 23:1166 estopping the insurer from denying that an employment is hazardous when it is covered by workmen's compensation insurance.The parties conceded that the employment was in fact non-hazardous.

The district court sustained an exception of no cause of action as to the demand in tort and award workmen's compensation at the weekly rate of $28.60 during a period of 100 weeks for the permanent impairment of a physical function under LSA-R.S. 23:1221(4)(p) and medical expenses in the sum of $366.85.

On appeal, the Court of Appeal reduced the award of compensation to the period of temporary total disability (February 21, 1960, to April 3, 1960) under LSA-R.S. 23:1221(1) but otherwise affirmed the judgment of the district court.See134 So.2d 416.

On the application of plaintiffs, we granted certiorari to review the judgment of the Court of Appeal.

The plaintiffs contend that the abortion is compensable on the basis of 100 weeks as an impairment of a physical function under the Louisiana Workmen's Compensation Law.If the abortion is not so compensable, plaintiffs contend, in the alternative, that the demand in tort is maintainable.

The defendant asserts that Mrs. Bergeron sustained no permanent impairment of a physical function and that compensation for the period of temporary total disability is a full compliance with the Louisiana Workmen's Compensation Law.The defendant also contends that the Workmen's Compensation Law provides plaintiffs' exclusive remedy.

We address ourselves first to the initial contention of plaintiffs that the abortion is compensable under the Louisiana Workmen's Compensation Law for a period of 100 weeks as an impairment of a physical function.

LSA-R.S. 23:1221(4)(p) provides:

'In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and as in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks.'

The plaintiffs contend that this section provides for compensation in three instances: in cases not falling within any provisions already made, in cases of serious, permanent disfigurement, and in cases in which the usefulness of a physical function has been seriously, permanently impaired.In our opinion, this construction does violence to the statute.The section authorizes compensation only for disfigurement or the impairment of the usefulness of a physical function in cases which do not fall within any other benefit provision of the law.²Since the section provides compensation for disfigurement or impairment unattended by disability, it transcends the historic base for workmen's compensation: the diminution of earning capacity.³However, it is not a catch-all clause, as contended by plaintiffs.

The precise inquiry presented here is whether or not the abortion constitutes an impairment of the usefulness of a physical function as provided in the section.

The physical function involved in the instant case is child bearing, or reproduction.Under the express statutory language, to be compensable the impairment must be permanent in character.The record reflects that the plaintiff wife had fully recovered as of April 3, 1960.Future gestation was neither precluded nor affected.Plaintiffs contend that the birth was aborted, and hence a physical function was destroyed.However, the finality of the abortion cannot be equated to a permanence in the impairment of the function.That which was destroyed was not the function itself, but the product of the function.The most liberal construction of the statute does not bring the abortion within the classification of a permanent impairment of the usefulness of the reproductive function.We conclude, as did the Court of Appeal, that the injury is compensable as one producing temporary total disability under LSA-R.S. 23:1221(1) which provides: 'For injury producing temporary total disability to do work of any reasonable character, sixty-five per centum of wages during the period of disability, not beyond three hundred weeks.'

Plaintiffs strenuously contend that, if the compensation cannot be had for the impairment of a physical function, the demand in tort is maintainable.They rely upon the decision of this Court in Boyer v. Crescent Paper Box Factory, 143 La. 368, 78 So. 596.

Pertinent here is LSA-R.S. 23:1166(ActNo. 495 of 1958) which provides:

'When an insurance company issues a policy of insurance to an employer covering claims for injuries to employees that may arise within the scope of the employer's business, the insurance company shall be estopped to deny liability on the grounds that the employment ws not hazardous and during the period such insurance is in effect, claims for injuries occurring during such period by such employees against the employer or the insurance company shall be exclusively under the workmen's compensation act.'

Commenting upon this provision in 19 Louisiana Law Review 110--112, Dr. Wex Malone, an eminent authority on workmen's compensation, stated:

'The recent estoppel provision offers a happy solution, and in this writer's mind this is preferable to an outright repeal of the sections of our act restricting compensation to hazardous employments.* * *

'As a corollary of the estoppel amendment it is provided that so long as the insurance is in effect, the employee cannot resort to a tort suit against his employer on the ground that his employment was not hazardous and hence was not covered by the statute.This corollary carries out the established principle that wherever compensation is available, the employee should have no other remedy against his employer.Were it not for this provision the employee in an insured non-hazardous employment would have available the choice either of suing the insurer for compensation of instituting a tort claim directly against his employer.'

This statutory enactment brings the employment in the instant case within the coverage of the Workmen's Compensation Law.The circumstance that the employment may be non-hazardous under the earlier definition of the law does not militate against such coverage.Certain non-hazardous employments were covered by the statute prior to this enactment.⁴Other non-hazardous employments were subject to coverage by the election of the employer and employee.⁵

The section clearly makes recovery under the Workmen's Compensation Law exclusive in those cases to which it is applicable.This is true although all specific elements of the injury may not be compensable.⁶Inasmuch as Boyer v. Crescent Paper Box Factory, supra, was decided prior to this amendment, that case is not controlling.

The plaintiffs strenuously contend, however, that such an interpretation of the statute will render it unconstitutional under the due process clauses of the State Constitution and the Fourteenth Amendment of the United States Constitution.

Article I, Section 6 of the state constitution, LSA provides:

'All courts shall be open, and every...