Daniel v. Transport Ins. Co.

• Decision Date: 14 March 1960
• Docket Number: No. 21441,21441
• Citation: 119 So.2d 107
• Parties: Edward C. DANIEL v. TRANSPORT INSURANCE CO. and Campbell '66' Express Company.
• Court: Court of Appeal of Louisiana — District of US

Page 107

119 So.2d 107

Edward C. DANIEL v. TRANSPORT INSURANCE CO. and Campbell '66' Express Company.

No. 21441.

Court of Appeal of Louisiana, Orleans.

March 14, 1960.

Rehearing Denied April 11, 1960.

Edgar J. Monjure and Joseph V. Di Rosa, New Orleans, for plaintiff-appellee.

Christovich & Kearney, W. K. Christovich, New Orleans, for defendants-appellants.

JANVIER, Judge.

Plaintiff, a truck driver employed by Campbell '66' Express Company, sustained injury to his right knee on April 18, 1957, when a heavy box fell from the truck and struck his leg. He was sent by his employer to Dr. W. Rogers Brewster who referred him to Dr. H. R. Soboloff, an orthopedist specialist. Dr. Soboloff found that the plaintiff had sustained 'a torn cartilage' and 'a softening of the surfaces of the bone,' and a 'little arthritis in the knee'. It was necessary to perform an operation which is referred to as a menisectomy and a part of a cartilage in the knee was removed. This operation was performed on May 21, 1957.

Sometime after the operation the plaintiff returned to work for the same employer and was given identical work and received the same pay.

At the time of the trial in the District Court, which was more than two years after the accident, he was still employed by the same employer, doing the same work and at a pay which had been increased slightly due to a general increase to all employees.

During the time in which plaintiff could do no work, he was paid full compensation and all medical expenses were paid. The compensation paid him totaled $905. Conceding that he had continued to work for the same employer, doing the same work and at the same pay, he brought this suit against the employer and the Transport Insurance Company, the insurer of the employer, contending that, though he had done and was doing the same work, he did so only with considerable pain and that therefore he should be considered as totally permanently disabled.

Defendants maintain that, because of the fact that, for more than two years, he continued to do the same work, for the same employer, and at the same or higher weekly pay, he could not be considered as totally permanently disabled, and, in the alternative, contend that if he was entitled to compensation at all, it should be on a basis of partial disability due to the fact that it was conceded that the function of his right leg had been decreased by approximately twenty or twenty-five per cent.

In the District Court there was judgment in favor of plaintiff and against both defendants under which they were required to pay him maximum compensation of $35 per week for a period not in excess of 400 weeks, subject to a credit for each week during which he had been employed and had received as much as $35 per week, and subject to a further credit of twenty-five and six-sevenths weeks during which he had been paid maximum compensation. In the judgment the fee of the attorney for plaintiff was also fixed, as was the fee of a medical expert. From this judgment defendants have appealed.

The District Judge set forth his reasons as follows:

'I can only hold at this time that plaintiff suffered a compensable injury, and voluntarily underwent an operation to his injured knee. He resumed working for the same employer, doing the same character of work, but doing it in pain. As long as he works with the same employer and receives the same compensation, he is not entitled to compensation. The moment he quits or works for another employer and is disabled, he can collect compensation. From the testimony I find he suffered a 25% Disability.

'Plaintiff cannot work except in pain, driving a truck and lifting freight on and off the truck. The medical testimony and the testimony of plaintiff is that he gets fatigued and suffers pain and discomfort while at work.

'Plaintiff is entitled to $35.00 a week, not to exceed 400 weeks, less credit for wages paid to him by his present employer who employed him at the time of injury. Pohl v. American Bridge Division, U.S. Steel Corp., (La.App.) 109 So.2d 823. Guillory v. Coal Operators Gas (Cas.) Co., (La.App.) 95 So.2d 201. Mottet v. Libley (Libbey)-Owens-Ford Glass Co., (220 La. 653) 57 So.2d 218.'

In support of their contention that the plaintiff should not be considered as totally permanently disabled, defendants point to certain conceded facts, first of which is that, for some twenty months preceding the date of the trial, plaintiff had done identical work for the same employer and at the same pay. And they also point to several statements of plaintiff which, if not read in connection with other statements, might indicate that the pain which he suffered was intermittent and not continuous and not a particularly severe.

Plaintiff, on the other hand, relies upon the testimony of Dr. Edward Haslam, an expert produced by him, and particularly upon the testimony of Dr. Soboloff, an orthopedic expert produced by the defendants themselves, and upon the testimony of Dr. Soboloff we base our conclusion that the judgment in favor of plaintiff was correct and that, though he has been able to perform the same work, he has done so only with considerable pain and also that there is the grave possibility that he will later have to undergo an additional operation which will further incapacitate him.

It is interesting to note that the testimony of Dr. Haslam and the testimony of Dr. Solomon Winokur, an expert produced by the defendant, cannot in certain particulars be reconciled. It appears that shortly before the trial, at the same time, these two experts examined plaintiff's knee and that, as a result of that examination, Dr. Haslam found that it was some three-quarters of an inch larger than it should be and that there was every reason for the disability and the pain of which plaintiff complained, whereas Dr. Winokur, at the same examination, found that there was no increase in the size of the knee and that there was no reason for the pain of which plaintiff complained.

In view of this conflict we have found it interesting to note that there is no doubt at all that Dr. Soboloff obviously believed that, at the time of the trial, plaintiff's condition had substantially worsened; that there was...