Comoletti v. Ideal Cement Co.

• Decision Date: 14 December 1962
• Docket Number: No. 5694,5694
• Citation: 147 So.2d 711
• Parties: Valentino J. COMOLETTI v. IDEAL CEMENT COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 711

147 So.2d 711

Valentino J. COMOLETTI v. IDEAL CEMENT COMPANY.

No. 5694.

Court of Appeal of Louisiana, First Circuit.

Dec. 14, 1962.

Kantrow, Spaht & Kleinpeter, by Robert L. Kleinpeter, Baton Rouge, for appellant.

Dyer & Wilson, by Billy O. Wilson, Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

LANDRY, Judge.

Plaintiff, Valentino J. Comoletti, a laborer in the employ of defendant, Ideal Cement Company, instituted this action against his said employer seeking judgment for maximum workmen's compensation benefits for alleged total permanent disability attributed to a partial loss or impairment of hearing. Our learned brother below rendered judgment in favor of plaintiff decreeing him entitled to compensation in the sum of $35.00 weekly for a maximum period of 400 weeks and from said unfavorable judgment defendant has appealed.

Defendant earnestly contends that our esteemed brother below erred in two respects. First, it is contended the court erred in finding that plaintiff did in fact suffer an accidental injury within the contemplation of the workmen's compensation act. Secondly, and alternatively, defendant maintains that if plaintiff did sustain an accidental injury, the trial court erred in awarding him total and permanent disability benefits when in fact plaintiff sustained only a partial loss of a physical function and should have been awarded maximum compensation for a period of 100 weeks only, as provided for by LSA-R.S. 23:1221(4)(p).

Defendant's business entails operation of five huge 'kilns' which the record reveals to be large cylindrical ovens in which the basic ingredients of cement are mixed and blended. Though mounted horizontally on concrete foundations known as brackets, the kilns are not perfectly level but are slightly inclined or slanted, their lower ends being so constructed as to permit opening to allow removal of the finished product. If we understand the testimony correctly, the upper or higher end of each kiln is equipped with devices by means of which raw materials are fed into the kilns and therein mixed, under extreme heat and pressure, resulting in the finished product, cement. The extremely high temperature required for the manufacturing process is achieved by combustion of natural gas injected into each kiln or oven by means of an apparatus referred to as a 'rolling tube', the exact nature and location of which is not made clear by the testimony. In the course of producing cement in the manner indicated, it appears that the interiors of the kilns or ovens accumulate large mud rings referred to in the industry as 'clinkers' which must be removed from time to time. It is undisputed that the dislodging and removal of clinkers from the kilns does not require that the fire therein be completely extinguished.

The process of clearing the kilns of clinkers is known as 'shooting the kilns' which terminology, as will hereinafter appear, both accurately and graphically describes the procedure employed. The record reveals that on the right side of each oven are situated small holes or 'ports' through which the barrel of an 8-gauge shell gun (much in the order of a conventional shotgun) is inserted and by means of which the mud rings or clinkers are literally 'shot' from the walls of the kilns. Although the record does not reveal at which end of the kilns these ports are situated, the absence of such information is of little importance to the decision of this matter. It does appear, however, that a team of three men is required to discharge the gun which fires a single large lead projectile in the nature of a bullet. The barrel of the gun is inserted into a port by the 'fireman' who aims and fires the gun. The fireman is assisted by a second individual who loads the gun by inserting shells in the breech to keep the weapon loaded and the third and remaining member of the team directs an air hose upon the gun to keep it sufficiently cool in order that the operation may continue without interruption.

Dependent upon the condition of the interiors of the respective kilns from 25 to 750 rounds are required to be fired in the process of cleaning each kiln. A team delegated to 'shoot the kilns' is generally engaged in the process for a period of from four to five hours. Each shot admittedly results in a loud report producing considerable noise. It is undisputed that as a general rule temperature is reduced in the kilns (resulting likewise in a reduction of pressure) to facilitate the cleaning process in that the employees so engaged are afforded a better view of the interior of the kiln. It is conceded, however, that occasionally the process is undertaken with little or no reduction in temperature and that performing the work under high temperature and pressure intensifies the noise produced by the explosion of each shell fired.

Plaintiff was employed by defendant for approximately four years preceding the date of the accident and had, on many occasions, been required to assist in 'shooting the kilns'. On the date of the alleged 'accident', namely, July 28, 1960, after having been engaged in shooting the kilns for a period of two or three hours, plaintiff and two fellow workers, Burton Dufour and Burton J. Pritchard, began to shoot the Number Five or last kiln. For some reason (not appearing in the record) Number Five kiln was shot without reducing the temperature therein, consequently, the intensity of the noise produced by each shell fired into said kiln was somewhat louder than usual. Plaintiff, who was acting as loader, inasmuch as he was inserting shells into the gun, testified that the noise was such that he had placed rags over the sides of his head to protect his ears. He suddenly felt what he described as 'an excess stunned blow' in his ear of greater intensity than ordinarily occasioned by the shooting. The extreme loudness of the reports caused plaintiff to experience a stunned feeling accompanied by an aching in his ears which affected him to the extent that he jumped away from the kiln two or three times.

Burton Dufour testified that the process of shooting the kilns ordinarily results in considerable noise and that cleaning the kilns without reducing temperature does intensify the noise. He recalled the incident in question and although he conceded the temperature was not lowered in Number Five kiln on the date in question, it was his opinion that, on said date, there was no greater noise or concussion than on any other occasion. He recalled that plaintiff immediately reported experiencing a whistling in his ears and acknowledged that plaintiff had never before made such a complaint.

The third member of the team, namely, Burton J. Pritchard, testified that he had no independent recollection of the incident.

On the day following the incident plaintiff complained to his superior, Earhart, who informed plaintiff that, if the ringing and whistling sounds plaintiff was experiencing in his ears did not clear up within a day or so, he, Earhart, or Mr. Glass (the personnel manager) would refer plaintiff to a doctor. Plaintiff's condition failed to either improve or clear up and upon plaintiff's further complaint, Mr. Glass referred plaintiff to Dr. Thomas P. Raggio, an otolaryngologist, a physician specializing in treating diseases and disorders of the ear.

Mr. Earhart testified he did not recall whether plaintiff reported an unusual injury or complained of experiencing pain. Neither did he recall referring plaintiff to the Personnel Manager Glass, although he freely conceded that such occurrence was possible. He acknowledged that on August 1, 1960, he was informed that plaintiff was not to be employed in the kiln area upon recommendation and advice of medical authority.

Dr. Raggio first examined plaintiff on August 2, 1960, on which date he found no evidence of physical abnormalities in plaintiff's ears, nose or throat. He observed no objective symptoms of injury such as scar tissue, bleeding or evidence of rupture of the ear drums. Neither did he note any changes in the bony structure of the ear which might be detected upon clinical examination. Dr. Raggio's examination consisted of administration of repeated audiometric tests in addition to an examination designed to determine discrepancy in hearing perceptibility as between normal bone conduction and normal air conduction, if any. Dr. Raggio found that, in addition to plaintiff's subjective complaint of experiencing ringing and whistling sounds, especially in the right ear, plaintiff was suffering from a high tone hearing loss with slight impairment of ability to understand speech. He found, however, that within the range of speech sounds, plaintiff's hearing was considered to be above a practical level. More precisely, Dr. Raggio concluded that with respect to the upper limit of speech range, namely, 2000 cycles, plaintiff's hearing was well above the practical level but that at higher frequencies his hearing decreased so that at 4000 cycles plaintiff's hearing was below practical level. The term 'practical level of hearing' was explained by Dr. Raggio as follows: impaired hearing ranges from normal or zero to what is considered the lowest practical level, the difference between normal and lowest practical level being 30 decibels. More precisely, Dr. Raggio found that with respect to high tones, such as whistles and bells, plaintiff's hearing was impaired and that plaintiff had difficulty in hearing shrill, high pitched sounds.

Upon Dr. Raggio's first examination of plaintiff, Dr. Raggio felt that the ringing sensation experienced by plaintiff as a result of the acoustic trauma shown would subside in a few days although he considered plaintiff's hearing impairment permanent and unlikely to improve. No specific treatment was indicated or prescribed excepting Dr. Raggio's recommendation that plaintiff refrain from working in any area of high noise intensity. Plaintiff was...