Carlock v. Gross

• Decision Date: 05 June 1967
• Docket Number: No. 2666,2666
• Citation: 200 So.2d 353
• Parties: Victor D. CARLOCK v. Elwood J. GROSS, d/b/a Cotton Construction Company, and United States Casualty Company.
• Court: Court of Appeal of Louisiana — District of US

Page 353

200 So.2d 353

Victor D. CARLOCK v. Elwood J. GROSS, d/b/a Cotton Construction Company, and United States Casualty Company.

No. 2666.

Court of Appeal of Louisiana, Fourth Circuit.

June 5, 1967.

Rehearing Denied July 5, 1967.

D. A. McGovern, III, and Richard A. Najolia, New Orleans, for plaintiff-appellee.

Wicker, Wiedemann & Fransen, Thomas C. Wicker, Jr., Lawrence D. Wiedemann, A. Remy Fransen, Jr., New Orleans, for defendants-appellants.

Before YARRUT, SAMUEL and BARNETTE, JJ.

BARNETTE, Judge.

This is an appeal by the defendants in a workmen's compensation case from a judgment refusing to grant a modification of the judgment awarding compensation to plaintiff in the amount of $35 per week, not to exceed 400 weeks. The defendants contend that the plaintiff is no longer disabled or under any physical incapacity which prevents him from pursuing his former employment as an ironworker.

The present action is a sequel to an earlier appeal in the same suit. Carlock v. Gross, 167 So.2d 464 (La.App.1964). Our judgment on the earlier appeal affirmed the lower court's holding that the plaintiff suffered total and permanent disability from his injury.

The modification proceedings were instituted under the provisions of LSA-R.S. 23:1331, which provides in part:

'At any time six months after the rendition of a judgment of compensation, a judge of the trial court that rendered the judgment shall review the same upon the application of either party for a modification thereof, on the grounds that the incapacity of the employee has been subsequently diminished or increased * * *'

A defendant-employer or insurer instituting such modification proceedings has the burden of proving that the employee's disability has diminished or ceased, and that the employee is no longer disabled from performing his occupational duties by reason of a work-caused injury. Belsome v. Southern Stevedoring, Inc., 239 La. 413, 118 So.2d 458 (1960); Cloud v. National Sur. Corp., 166 So.2d 31 (La.App.3d Cir. 1964); Holmes v. New Amsterdam Cas. Co., 128 So.2d 269 (La.App.1st Cir. 1961).

The defendants requested that the court appoint an independent medical expert to examine the plaintiff and to report to the court as provided in LSA-R.S. 23:1123. The pertinent provisions of that statute are:

'If there be any dispute thereafter as to the condition of the employee, the court, upon application of either party, shall order an examination of the employee to be made by a medical practitioner appointed by the court. * * * The medical examiner shall report his conclusions from the examination to the court, and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.'

This request was granted and the plaintiff was subsequently examined by the court-appointed medical expert, Dr. Robert M. Rose, an orthopedic surgeon.

We are of the opinion that the jurisprudence restricted the trial below to one issue, to wit, whether the plaintiff is now able to perform substantially the same duties of employment as performed by him prior to the accident. Bonin v. Sam Carline, Inc., 117 So.2d 312 (La.App.1st Cir. 1959); Thompson v. Bituminous Cas. Corp., 104 So.2d 248 (La.App.2d Cir. 1958); Nubles v. Texas Gas Transmission Corp., 72 So.2d 565 (La.App.2d Cir. 1954); Strother v. Standard Acc. Ins. Co., 63 So.2d 484 (La.App.1st Cir. 1953).

The fact that he is presently employed as a welder in electrical construction at wages exceeding those which he received from his employment prior to the accident, is not alone sufficient to preclude his right to continue to receive compensation payments. Myers v. Jahncke Service, 76 So.2d 436 (La.App. Orleans 1954); Strother v. Standard Acc. Ins. Co., supra; Cobb v. A. G. McKee & Co., 45 So.2d 432 (La.App.1st Cir. 1950); De Kerlegand v. Car & General Ins. Corp., 30 So.2d 881 (La.App. Orleans 1947).

In our opinion on the first appeal we followed our jurisprudence interpreting 'work of a reasonable character' and said:

'In order for a workman to be classified as totally and permanently disabled, he must be unfit to carry on work of any reasonable character which means, as held by the appellate courts of this state in numerous cases, the duties of the occupation he was pursuing at the time of the accident or duties similar thereto.' 167 So.2d at 468.

In wrestling with the vexing issue of 'work of a reasonable character' in regard to skilled workmen versus common laborers, a jurisprudential rule has evolved: in the case of the 'skilled' workman the test of ability to perform the same or 'similar' duties is more rigidly applied and the limits of dissimilarity of duties become more narrow as the extent of skill is increased. ¹

There is no question that Mr. Carlock, being employed at the time of injury as an off ground ironworker, was engaged in a work requiring a high degree of skill. Nor is there any question that his present employment as an electrician's welder is one requiring a high degree of skill. The duties are not the same, though in some respects similar. It is our opinion that his demonstrated ability to perform the duties of the latter falls short of meeting the jurisprudential rule of same or similar work. However, the fact that he remains in the work of electrician's welder, rather than return to ironwork, is not necessarily evidence of his Inability to return to his former employment. It could well be a matter of choice; a choice conceivably influenced by the prospect of losing $35 per week in supplemental income. A workman might prefer not to return to his former work for a number of considerations: security, regularity of employment, environment, etc . Therefore, the question we must determine is not whether his present employment Is the same or similar, or more or less remunerative than the former, but whether he continues to be physically incapacitated from performing the duties of the former.

Plaintiff's duties as an ironworker were discussed by us in our opinion on the first appeal, 167 So.2d at 467, and will not be repeated here. Evidence of his ability to do the things required of his present employment will be considered in connection with the testimony of the examining physicians for such corroborative support as it might give to their expert opinions of his present physical limitations.

Plaintiff freely admits his present employment has extended without interruption over a period of many months. He admitted also that it requires climbing on scaffolds and the handling of heavy objects. However, he stated that he does not climb to the heights required of an ironworker, nor does he handle very heavy objects on narrow platforms or beams which would require a great amount of strength and balance. By the use of motion pictures Carlock was shown climbing upon a scaffold by means of a ladder and handling certain objects. He appeared to be laying boards for decking on a scaffold and handling a sheet of plywood. He also appeared to be working with aluminum tubing to be used as electrical conduits. It is in this particular respect that he does welding. The photographers admittedly took pictures showing him in the most strenuous activity observed by them during the three days he was under surveillance. The pictures, exhibited before us, indicated that he performed these duties in a very normal manner and without difficulty.

The medical testimony reviewed by us in considerable detail in our first opinion will not be repeated here. Our consideration of the issue presently before us is limited to the medical testimony taken on trial of the application for modification.

The court-appointed medical expert, Dr. Rose, testified that Mr. Carlock related his case history to him. Dr. Rose stated that the plaintiff complained of back trouble, 'consisting of continuous pain in what he indicated as the right lumbosacral area of his back and this pain radiated down the back of his leg to the knee.' Bending tests were normal with no limitations nor muscle spasm, but he did complain of a 'catch in his back on bending backwards.' Straight leg raising test, to 90 with each leg, was without complaint. Reflexes were normal.

An X ray was made upon his direction by Dr. Robin Hardy with the following report:

'Lumbosacral spine, all of the visualized bones appear normally mineralized and intact with their being no fracture or destructive process recognized involving them.

'The pedicles are not unusual. A small osteophyte arises at the anteriosuperior aspect of the fourth body. There is no evidence of spondylolisthesis or spondylolisis (sic). The heights of the disc spaces are within the range of normal variation.

'The zygapophyseal, sacroiliac and hip joints are clear. The sacral foramen are sharply demarcated and no evidence of osseous disease or injury is identified within the bones of the pelvis.

'Conclusions: Aside from one osteophyte, the osseous elements in this region are normal and geographical.'

Dr. Rose concurred in the findings of Dr. Hardy.

Mr. Carlock's right leg is a bit shorter than the left, but not from any cause associated with the accident. Dr. Rose said of this condition:

'A It's just the way nature made him. He happened to grow that way.

'Q It's a developmental thing?

'A Yes.

'Q He was born with this kind of leg?

'A Or else he just grew that way, yes.'

He further testified:

'Q Now, Doctor, you said that the man had a slight pelvic tilt?

'A That's due to the shortened right leg.

'Q I see. This information, in your opinion, this would not be related to trauma?

'A No, sir.

'Q I see. Now, Doctor, in your expert opinion, from your examination of this individual and from the x-rays that we have available, would you feel that as a result of the back that you see there and that you examined, that this man would have any disability or inability to perform the usual functions of an iron worker, that would be climbing and lifting and that sort of...