Blanchard v. Pittsburgh-Des Moines Steel Co.

• Decision Date: 02 June 1952
• Docket Number: PITTSBURGH-DES,No. 7816,7816
• Citation: 59 So.2d 384
• Parties: BLANCHARD v.MOINES STEEL CO. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 384

59 So.2d 384

BLANCHARD v. PITTSBURGH-DES MOINES STEEL CO. et al.

No. 7816.

Court of Appeal of Louisiana, Second Circuit.

June 2, 1952.

Rehearing Denied June 18, 1952.

Guillory & Guillory, Eunice, for appellant.

Stafford & Pitts, Alexandria, for appellees.

HARDY, Judge

This is a compensation suit in which plaintiff claims permanent, total disability. Plaintiff also sought to recover 12% penalty and attorney's fees on the ground that defendant insurer 'arbitrarily, capriciously and without probable cause, failed to make payment within sixty days after receipt of satisfactory proof * * *' in violation of LSA-R.S. 22:658. After trial there was judgment in favor of plaintiff and against the defendant employer and its insurer at the rate of $3 per week, minimum allowed by statute, for a period not to exceed 300 weeks, subject to credit for compensation already paid. From this judgment plaintiff has appealed, and defendants have answered the appeal, praying for the rejection of plaintiff's demands.

There is no dispute as to the occurrence of the accident and the nature and character of the injuries sustained, the only question here tendered dealing with the extent of the disability suffered by plaintiff.

Plaintiff was employed as a common laborer, and, at the time of the accident, was engaged in this employment, which consisted of the performance of a number of varied activities--the driving of a truck hauling materials and supplies, covering of finished cement work with burlap bags and the use of tools in the performance of other tasks of manual labor. The accident occurred when plaintiff, carrying some burlap bags for the purpose of covering cement work, tripped upon a loose board and sustained a fall, severely spraining his right thumb. The injury is described as a severe sprain of the metacarpophalangeal joint of the thumb with resultant swelling, stiffness of the joint, enlargement thereof, and a resultant limitation of flexion, extension and movement. As usual there is a serious conflict of opinion between the medical experts for the respective parties litigant, which, however, we do not find to be as serious and irreconcilable as is sometimes the case. The accident occurred in or about the early part of the month of November, 1949. Despite his injury plaintiff continued to work on his job in the regular performance of his duties for a period of more than three months, that is, until the job was completed on or about January 6, 1950. During the interval he had reported to a physician some six or seven weeks after the injury, which physician recommended that he consult an orthopedist. Plaintiff delayed following this advice until after the completion of the job. During the month of January he did consult an orthopedist, was treated for the injury and finally submitted to an operation, which was designed to tighten the thumb by adding a ligament and which operation was described as having successful results. Trial was had in April, 1951, some eighteen months, more or less, following the injury. Plaintiff insists that he suffers pain and is unable to use his thumb to such an extent that he cannot properly perform any of the tasks usually associated in the field of common labor. As a result he claims he is permanently and totally disabled. At the time of trial he was employed as a farm overseer at a wage of $30 per week, which is substantially the same as the wage he was receiving at the time of the accident.

Two medical experts testified on behalf of plaintiff, one a general practitioner and the other an orthopedic specialist who, however, had not received his certificate because of the fact that he had not practiced the length of time required. Both of these witnesses were of the opinion that the injury to plaintiff's thumb was so severe and its residual effect so great that he was totally and permanently incapacitated from further performance of work as a common laborer. Three medical witnesses testified on behalf of defendant, one the general practitioner to whom plaintiff at first reported for treatment, and the other two orthopedic specialists of standing and reputation, each of some eleven years or more experience in this particularly highly specialized field. It was the consensus of these witnesses that plaintiff suffered, at the time of the giving of their testimony, a very slight residual impairment and disability of the right thumb which they variously estimated as being from five to ten percent. Taking into consideration the background of education, training and experience of the several medical witnesses, we think the testimony of the witnesses tendered by defendant is entitled to the greater weight and preponderates over that of the experts offered by plaintiff. We accept, as did the Judge of the District Court, the computation of disability, as agreed upon by the medical witnesses for defendants, to the extent of a ten percent impairment of the function and use of the right thumb.

Upon the basis of this conclusion the question therefore is squarely presented, that is, whether a ten percent residual disability of the use and efficiency of the right thumb of an individual engaged in common labor is to be regarded as being totally and permanently disabling.

In support of plaintiff's contention of permanent and total disability his learned counsel quotes extensively from Malone's Work 'Louisiana Workman's Compensation Law and Practice' and from the opinion of the Supreme Court in Hughes v. Enloe, 214 La. 538, 38 So.2d 225. We find ourselves substantially in accord with the majority of Mr. Malone's observations. Particularly we are in complete agreement with what he calls a suggested formula with respect to the consideration of the relative effect of an injury to an employee engaged in common labor upon his ability to compete in the common labor market. In the development of this idea Malone reaches the conclusion that a common laborer should be considered to be totally disabled whenever his injury is of such character that it appears he will be substantially handicapped in competing with able bodied workers. He observes:

'This formula affords the flexibility necessary to enable the court to pass an intelligent judgment upon the facts of each individual case.'

In this connection, the facts, as we find them to be established, lead to the conclusion that plaintiff has suffered a ten percent disability in the use and function of the thumb of his right hand. The record in the case before us does not satisfactorily establish facts which would justify the additional conclusion that plaintiff is unable to secure employment as a common laborer. True it is that plaintiff testified that he suffers pain in his injured thumb; that he is unable to properly grasp and operate tools, such as a shovel or axe, but, unfortunately for plaintiff's case, we do not think that this testimony is entitled to any great consideration. Militating against the acceptance of plaintiff's estimate and evaluation of his own disability, we are confronted with two definitely established facts which are entitled, in our opinion, to most serious consideration. First, it is shown that after the injury, and at a time presumably when plaintiff was most affected by pain, he continued to work at his job without interruption for a period of over three months. Second, upon trial of the case an examination by one of the medical witnesses determined that plaintiff showed evidence of continuing manual labor in that both hands were well calloused and by measurement the right forearm was some five-eights of an inch larger than the left, which the doctor appeared to regard as evidence of the fact that plaintiff had used his right hand and arm in a natural manner for a period of time. In other words, there was no showing of any disuse nor of any muscular...