Deshotels v. Fidelity & Cas. Co. of New York

• Citation: 324 So.2d 895
• Decision Date: 24 December 1975
• Docket Number: No. 5275,5275
• Court: Court of Appeal of Louisiana (US)
• Parties: Joseph R. DESHOTELS, Plaintiff-Appellee, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Defendant-Appellant.

Page 895

324 So.2d 895

Joseph R. DESHOTELS, Plaintiff-Appellee, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Defendant-Appellant.

No. 5275.

Court of Appeal of Louisiana, Third Circuit.

Dec. 24, 1975.

Dissenting Opinion Jan. 2, 1976.

Rehearing Denied Jan. 28, 1976.

Writ Refused March 19, 1976.

Allen, Gooch & Bourgeois by Kenneth Cole, Lafayette, for defendant-appellant.

Deviller, Ardoin & Morrow by J. Michael Morrow, Eunice, for plaintiff-appellee.

Before WATSON, HUMPHRIES and PETERS, Judges.

PETERS, Judge ad hoc.

This is an appeal from a judgment awarding plaintiff the sum of $49.00 per week in workmen's compensation benefits for total and permanent disability. Plaintiff answered the appeal asking for an award of past and future medical expenses and for attorney's fees.

Plaintiff was employed by Evangeline Timber Company, primarily to make fence posts. Plaintiff cut trees ranging from two and one-half to six inches in diameter, trimmed the branches and cut the trees into sections using a chain saw. When the cutting was done, he loaded the sections on to a one and one-half ton truck and drove to a creosote plant several miles away where the sections were treated to be used as fence posts.

At the time of the accident, plaintiff was rebuilding a fence for Evangeline. This was a job he had never done for Evangeline before. Plaintiff broke off a vine, clinging to the fence, which struck him in the right eye. It is undisputed that plaintiff lost all vision in his right eye as a result of the accident. The medical evidence clearly shows plaintiff has suffered a loss in range of vision and a loss of depth perception due to the loss of vision in the right eye.

The trial judge found plaintiff was disabled from doing the same work or work of a reasonably similar character as that which he was performing at the time of the accident. The holding by the trial judge indicates that he found the plaintiff to be at least a semi-skilled worker. We are unable to find any error in this conclusion. Although plaintiff had been working for Evangeline only one or two weeks at the time of the accident, he had been employed by Evangeline on at least one other occasion to do similar work. He was sufficiently knowledgeable about his job duties that his employer sent him to work without supervision. He was entrusted with driving a truck. Mr. Richard Allen Waltrip, a timber buyer and pulpwood procurer, testified he had employees doing the same type of work plaintiff was doing for Evangeline and he would not hire a man to do this type of work unless that man had some experience in the logging business. While it is probably true that no special skill is required to operate a chain saw or to drive a one and one-half ton truck, the plaintiff's experience in performing, and ability to perform well, all his job tasks make him at least a semi-skilled worker. Smith v. Traveler's Insurance Company (La.App.3rd Cir., 1972), 267 So.2d 622.

The trial judge's conclusion that plaintiff was disabled from performing the same or reasonably similar work as he was performing when injured is correct. The medical evidence clearly shows plaintiff has suffered a loss in range of vision and depth perception. Plaintiff testified he now has trouble staying in his lane of traffic when driving. He further stated he would have trouble working among tree branches and stumps because he cannot estimate properly the height of branches and stumps. Mr. Waltrip's testimony is highly relevant because it indicates plaintiff is unable, due to his disability, to compete in the labor market with able-bodied workers with similar skills. According to Futrell v. Hartford Accident and Indemnity Company, 276 So.2d 271 (La., 1973), the test for disability is whether the injury has substantially decreased claimant's ability to compete with able-bodied workers with similar skills in the general labor market. Therefore, even if plaintiff in the instant case were able to perform the same job duties he was performing at the time of the accident, he is disabled under LSA-R.S. 23:1221 if he is unable to compete with able bodied workers for such a job. The only evidence tending to show plaintiff's position in the labor market is the testimony of Mr. Waltrip, who testified unequivocably that he would not hire a one-eyed man to do the type of work plaintiff was doing.

We therefore affirm the trial court's award of benefits for permanent total disability.

We find no merit in plaintiff's contention that the trial court erred in not awarding plaintiff past and future medical expenses. It was stipulated by counsel at trial that medical payments in the amount of $3,466.62 had been paid and there were no medical bills outstanding at the time of trial; it is therefore apparent plaintiff was entitled to no award for past medical expenses. Plaintiff also is not entitled to an award for future medical expenses. There is no liability for medical expenses until they are incurred. Reed v. Employer's Mutual Liability Insurance Company of Wisconsin (La.App.2nd Cir., 1974), 303 So.2d 506; Manuel v. Jennings Lumber Company (La.App.3rd Cir., 1971), 248 So.2d 908. Furthermore, the right to assert a claim for medical expenses that arise in the future is always reserved to the plaintiff and need not be specifically so reserved in the judgment. Reed v. Employer's Mutual Liability Insurance Company of Wisconsin, supra; Welch v. Clemons Brothers Lumber Company, Inc. (La.App.1st Cir., 1972), 262 So.2d 79.

Plaintiff is not entitled to penalties and attorney's fees because defendant's refusal to pay benefits was not arbitrary and capricious. There apparently was an honest dispute between plaintiff and defendant concerning whether plaintiff was entitled to benefits for permanent disability or merely to benefits for 100 weeks under the schedule and defendant did voluntarily pay plaintiff $49.00 per week for 100 weeks under the schedule.

All costs in this court and in the court below are to be paid by defendant-appellant.

Affirmed.

HUMPHRIES, J., dissents and assigns written reasons.

HUMPHRIES, Judge (dissenting).

I find that I am not in agreement with the majority opinion in affirming the decision of the trial court awarding permanent and total disability for the loss of an eye.

I agree with the majority and the trial judge that the plaintiff has lost all vision in his right eye.

The majority finds that the plaintiff is totally disabled from performing the same or reasonably similar work as he was performing when injured and that the plaintiff's loss of vision in his right eye has substantially decreased his ability to compete with able bodied workers with similar skills in the general labor market. I submit that there is no evidence in the record to support these two findings.

Whether the plaintiff can perform work of similar character to that he was performing at the time of the accident is a legal question that addresses itself to the trial judge. This opinion of course must be based upon sufficient, competent evidence.

Two doctors testified by depositions. The plaintiff called Dr. Merrick J. Wyble and the defendant called Dr. Larry E. Baker. Dr. Wyble was the attending physician. He stated that he felt that the plaintiff should not return to work in the timber business and no different jobs as driving a tractor, cutting timber and working around the timber yard. This is not what the plaintiff was doing. He stated that the plaintiff was employed with the timber company and working in a hazardous condition as manifested by the fact that he got injured and lost an eye. He stated that if the plaintiff returned to work he could place 'himself and others in a very bad situation, that he could either injure...