Bourgeois v. Houma General Painting and Waterproofing Co., 86

• Decision Date: 14 October 1987
• Docket Number: No. 86,86
• Citation: 515 So.2d 486
• Parties: Ralph BOURGEOIS v. HOUMA GENERAL PAINTING AND WATERPROOFING COMPANY, et al. CA 1162.
• Court: Court of Appeal of Louisiana — District of US

Page 486

515 So.2d 486

Ralph BOURGEOIS v.HOUMA GENERAL PAINTING AND WATERPROOFING COMPANY, et al.

No. 86 CA 1162.

Court of Appeal of Louisiana First Circuit.

Oct. 14, 1987.

David M. Richard, Thibodaux, for plaintiff-appellantRalph Bourgeois.

John L. Lanier, Pugh, Lanier & Pugh, Thibodaux, for defendants-appelleesHouma General Painting and Waterproofing Co. & General Acc. Ins. Co.

Before GROVER L. COVINGTON, C.J., and SAVOIE and LEBLANC, JJ.

SAVOIE, Judge.

This is a suit for worker's compensation brought by Ralph Bourgeois(hereinafter Plaintiff) against his statutory employer, Houma General Painting & Waterproofing Company(hereinafter Employer), and its worker's compensation insurer, General Accident Insurance Company(hereinafter Insurer), as the result of an accident which happened on September 13, 1982.Plaintiff was injured when he fell thirty feet from a ladder.In his suit filed on May 4, 1983, Plaintiff alleged that he was totally and permanently disabled because of injuries to his face (loss of four teeth and multiple fractures of facial bones), left knee, left foot, left elbow, chest, and back.Plaintiff sought compensation benefits for total and permanent disability, medical expenses, penalties, and attorney's fees.In an amending petition filed on April 2, 1986, and at trial, Plaintiff made alternative claims for permanent partial disability, permanent disfigurement, and loss or partial loss of a function.

At trial on April 23 and 24, 1986, it was stipulated between the parties that Plaintiff was injured on September 13, 1982, due to an accident which occurred during the course and scope of his employment with Ted Barnes; that Ted Barnes was a subcontractor for Houma General Painting & Waterproofing Company; that Houma General Painting & Waterproofing Company was the statutory employer of Plaintiff; that at the time of the accident, Houma General Painting & Waterproofing Company's worker's compensation insurer was General Accident Fire and Life Insurance Corporation; that the insurer paid Plaintiff weekly worker's compensation benefits in the amount of $5,074.83 through July 3, 1984; that the insurer paid Plaintiff medical benefits totalling $14,117.40 through July 1, 1985; and that the weekly basis of the compensation was $160.01.

Employer and Insurer denied that Plaintiff was totally and permanently disabled on the basis that Plaintiff had been discharged by his attending physician as able to return to work.At trial, Employer and Insurer made an unconditional tender of $8,000.00 to Plaintiff; Plaintiff declined the tender, and the money was deposited into the registry of the court.

After the presentation of evidence, the court took the matter under advisement.For written reasons assigned July 2, 1986, judgment was rendered and signed on the same date.The trial judge rejected Plaintiff's claim of permanent and total disability and rendered judgment in favor of Plaintiff and against Employer and Insurer for worker's compensation benefits of $61.00 per week for 125 weeks for the partial disability of Plaintiff's foot under LSA-R.S. 23:1221(4)(g) and (o ), subject to a credit of $5,074.83.The trial judge also awarded Plaintiff penalties and attorney's fees.From this judgment Plaintiff has appealed raising two assignments of error, and the Employer and Insurer have answered his appeal.

ASSIGNMENT OF ERRORNO. 1

Plaintiff's first assignment of error is that the trial court failed to award Plaintiff benefits for loss of function or permanent disfigurement due to Plaintiff's loss of his four upper front teeth and his facial scarring.The trial judge found that Plaintiff was entitled to benefits for the 5% permanent partial loss of function of his foot ¹ under LSA-R.S. 23:1221(4)(g) and (o ), and for the loss of his four teeth and for his facial scars under LSA-R.S. 23:1221(4)(p).However, the trial judge only awarded Plaintiff benefits under LSA-R.S. 23:1221(4)(g) and (o ) for the foot, reasoning that:

[T]he law does not permit recovery [for the lost teeth and facial scars] under subdivision (4)(p) if the injured worker has a claim [for loss of function of the foot] under subdivision (4)(a) through (o).R.S. 23:1221(4)(p);Lee v. Gaffney Construction Co., 474 So.2d 994, 998(La.App. 5th Cir.1985), writ denied [477 So.2d 706(La.1985) ];Jack v. Fidelity & Casualty Co. of New York, 326 So.2d 584, 586-587(La.App. 3rd Cir.1976), writ denied [330 So.2d 295(La.1976) ].As such, plaintiff is only eligible for 'temporary total disability' benefits for the time he was unable to work and for benefits for the permanent partial loss of function of his foot.

The judge also found that Plaintiff was entitled to benefits for temporary total disability from the date of the accident (September 13, 1982) through May 11, 1983, on which date the trial court found that Plaintiff was discharged from Dr. Eroche, his treating physician.²The judge then correctly stated that the Plaintiff could not recover both for temporary total disability and for the loss of use of the foot, citing Hall v. Pipe Line Service Co., 233 La. 821, 98 So.2d 202, 205(1957).Based on the jurisprudence, as Plaintiff was entitled to the more favorable of the two remedies, the judge found the award for the loss of function to be more favorable based on his calculations, and gave Plaintiff recovery for the loss of function of his foot.

Plaintiff contends that the trial court's interpretation of the Lee and Jack cases is an incorrect interpretation of LSA-R.S. 23:1221(4)(p).After a review of those cases and prior jurisprudence, we agree with Plaintiff's contention.

This accident occurred prior to the 1983amendments to the worker's compensation statutes; the statute as it read at the time of plaintiff's accident controls.Hughes v. General Motors Guide Lamp Division, 469 So.2d 369, 376(La.App. 2nd Cir.1985).The pertinent parts of LSA-R.S. 23:1221 are as follows:

Compensation shall be paid under this Chapter in accordance with the following schedule of payments:

* * *

* * *

(4) In the following cases, the compensation shall be as follows:

* * *

* * * (g) For the loss of a foot, sixty-six and two-thirds per centum of wages during one hundred and twenty-five weeks.

* * *

* * *

(o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

(p) 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 in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-six and two-thirds per centum of wages during one hundred weeks.

The judge's interpretation was that a worker was not entitled to recover under LSA-R.S. 23:1221(4)(p) for a particular loss of function where he was already entitled to recover under any of the other schedule provisions, even for an independent loss of function.Yet, in both the Jack and Lee cases, the Plaintiff was seeking to recover benefits for the loss of one function under the specific disability provision as well as under the provision for disfigurement or impairment of the usefulness of a physical function.Jack concerned a worker's recovery under both LSA-R.S. 23:1221(4)(c) and (p) for injury to his toe, and Lee concerned the worker's recovery under both LSA-R.S. 23:1221(4)(i) and (p) for injury to his eye.An examination of the jurisprudence reveals that in earlier cases where recovery was denied under a specific disability provision and what is now provision (4)(p) it was denied because the worker was seeking to recover twice for the same injury.Rodriguez v. Standard Oil Co. of Louisiana, 166 La. 332, 117 So. 269(1928).As the court stated in Rodriguez, the provision which is now LSA-R.S. 23:1221(4)(p) is "not applicable to an injury for which compensation is specifically provided for elsewhere in the statute...."(Emphasis ours).117 So. at 270.

In the case before us, Plaintiff is not seeking to recover for the partial disability of his foot under LSA-R.S. 23:1221(4)(g) and (p).This "double dipping" is clearly barred.Rather, Plaintiff is seeking to recover for the disability of his foot under (g)--one loss of function--and he also seeks to recover for the loss of his four teeth and his facial scars under (p) as a separate, entirely independent loss of function.Under the statute, Plaintiff is entitled to recover for both of these losses of functions.We reverse the trial court's finding that Plaintiff is not entitled to recover for the two independent losses of function.

In awarding benefits for loss of function under LSA-R.S. 23:1221(4)(p), the trial judge has much discretion in determining the weekly amount which is to be awarded for the impairment of the physical function.The judge has no discretion as to the length of time--100 weeks--for which the amount must be paid.Edwards v. Hartford Insurance Company, 445 So.2d 499, 502, n. 4(La.App. 2nd Cir.1984).In this case, the lower court did find that Plaintiff was entitled to recovery for the loss of teeth and scarring under LSA-R.S. 23:1221(4)(p).Yet, he did not set the amount of compensation to which Plaintiff would be entitled.Two earlier cases compensated workers for the loss of their teeth: Jenkins v. Orleans Parish School Board, 310 So.2d 831(La.1975)andHanks v. CRC Holston, Inc., 430 So.2d 1340(La.App. 3rd Cir.), writ denied, 438 So.2d 576(La.1983).In Jenkins, for the loss of...