Butzman v. Delta Shipbuilding Co.

• Decision Date: 26 February 1945
• Docket Number: 18200.
• Citation: 21 So.2d 80
• Court: Court of Appeal of Louisiana — District of US
• Parties: BUTZMAN v. DELTA SHIPBUILDING CO., Inc., et al.

21 So.2d 80

BUTZMAN v. DELTA SHIPBUILDING CO., Inc., et al.

No. 18200.

Court of Appeal of Louisiana, Orleans.

February 26, 1945

Rehearing Denied April 9, 1945.

Writ of Certiorari Denied June 5, 1945.

Christovich & Kearney, of New Orleans, for appellants.

Jorda S. Derbes, of New Orleans, for appellee.

WESTERFIELD Judge.

This is a suit under the compensation law in which the plaintiff, Peter M. Butzman, Jr., claims to be totally and permanently disabled as a result of an accident which occurred while he was employed by the defendant, Delta Shipbuilding Company Inc., on March 15, 1943. He sues his employer and its insurance carrier, the Fidelity & Casualty Company of New York for compensation at the rate of $20 per week for four hundred weeks.

It is admitted by the defendants that plaintiff was injured in the course of his employment as a shipfitter and compensation was paid him for nineteen weeks and two days at the rate of $20 per week, or a total of $396.67. Defendants, however deny that the plaintiff was permanently or totally disabled and contend that he had completely recovered on July 29 1943, when they ceased paying him compensation.

There was judgment below in plaintiff's favor and the defendants have appealed. Plaintiff has answered the appeal, asking that the judgment be amended in the respect that it suspends payment of compensation during the period for 'which he has received or will continue to receive wages equal to or exceeding the amount of the compensation'.

Butzman was injured when a scaffold on which he was standing collapsed causing him to fall and strike his leg on the edge of a tank. He suffered a comminuted fracture of the left leg. After the accident and after his discharge by the defendants' physicians, who declared that he was able to go back to work on July 29, 1943, Butzman resumed his former employment with the Delta Shipbuilding Company and worked for about ninety days when he concluded that he was unable to perform the duties of a shipfitter and asked for and obtained a transfer to the 'burning department', where he worked continuously until the time of the trial a year and three months later. Before the accident he earned an average weekly wage of $55.26, whereas after the accident his average weekly wage amounted to $69.70. Butzman was also employed as a janitor in one of the Divisions of the Criminal Court where he earned $90 per month.

It is the contention of plaintiff's counsel that the earning capacity of plaintiff before and after the accident is of no moment because he is now unable to discharge the duties of his former occupation as a shipfitter, which required him to climb ladders, carry weights and perform other strenuous hard work. As a matter of fact, plaintiff had never been a shipfitter before his employment by the defendant shipbuilding company a few days before the accident. He had previously been an ornamental iron worker and a ship painter.

The section of the compensation law relative to total disability reads as follows:

Section 8 par. 1(b). 'For injury producing permanent total disability to do work of any reasonable character, sixty-five per centum of wages during the period of disability, not, however, beyond four hundred weeks.' Act No. 242 of 1928, p. 357.

This provision has been interpreted to mean work of the same or similar description to that which he was accustomed to perform. Black v. Louisiana Cent. Lumber Company, 161 La. 889, 109 So. 538; Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9; Yarbrough v. Great American Indemnity Company, La.App., 159 So. 438; Stieffel v. Valentine Sugars Co., 188 La. 1091, 179 So. 6; Ranatza v. Higgins Industries, La.App., 18 So.2d 202, now pending in the Supreme Court on writs of review, and authorities therein cited.

As we have observed, Butzman was not specially fitted to perform the work of a shipfitter. As a matter of fact, he had only worked in that capacity for a very few days when he was injured and were it not for the holding in Stieffel v. Valentine Sugars Company, supra, we would be inclined to say that Butzman was not permanently and totally disabled within the meaning of the compensation law, but we read in the Stieffel case on page 1115 of 188 La., at page 14 of 179 So., an interpretation of the Yarbrough v. Great American Indemnity Company case (supra) as holding:

'When an injured employee is unable to do work of the same description that he was employed to do when injured, his injury, in contemplation of law, is equal to total disability.'

We do not understand the Yarbrough case as so holding, but we are mistaken because our Supreme Court has held otherwise and to the effect that when a workman is injured so that he is unable to perform the duties of the position he occupied when injured, he is totally and permanently disabled.

Butzman, though a shipfitter for a very limited length of time, was employed as such when he was injured and we now turn to the testimony to ascertain whether it can be said that he is unable to discharge the duties of that position. Butzman himself says that while he was trying to accustom himself to the work after his injury during the ninety days that he resumed his position as shipfitter, he found that the pain in his leg was so intense that he could not bear it.

Three doctors testified in the case--Drs. George Battalora and Joseph T. Scott, Jr., for the defendant and Dr. Edward H. Maurer for the plaintiff. There is no dispute as to the character of plaintiff's injury. Butzman, according to Dr. Scott, who treated him, suffered a 'comminuted fracture of the left tibia at the junction of the lower and middle third. That is the main bone of the left leg'. Dr. Scott expressed the opinion that after July 29th, 1943, when he discharged him, plaintiff could do hard strenuous work of the character which he was engaged in before the accident.

Dr Battalora, who did not examine Butzman until February 10th, 1944, eleven...