Deville v. Townsend Bros. Const. Co., 4292

• Decision Date: 18 September 1973
• Docket Number: No. 4292,4292
• Citation: 284 So.2d 110
• Parties: Adam DEVILLE, Plaintiff and Appellee, v. TOWNSEND BROS. CONSTRUCTION COMPANY et al., Defendants and Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 110

284 So.2d 110

Adam DEVILLE, Plaintiff and Appellee, v. TOWNSEND BROS. CONSTRUCTION COMPANY et al., Defendants and Appellants.

No. 4292.

Court of Appeal of Louisiana, Third Circuit.

Sept. 18, 1973.

Rehearing Denied Nov. 2, 1973.

Writ Refused Dec. 14, 1973.

Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendants and appellants.

Garrett & Ryland by Donald M. Garrett, Alexandria, for plaintiff and appellee.

Before FRUGE , SAVOY and DOMENGEAUX, JJ.

DOMENGEAUX, Judge.

This is a workmen's compensation case in which plaintiff, Adam Deville, sued his employer, Townsend Bros. Construction Company and its compensation insurer, Travelers Insurance Company, for benefits resulting from an accident which occurred on October 11, 1971. Deville was employed as a laborer, although he was sometimes referred to as a roustabout or welder's helper. He alleged that while assisting a welder on an oilfield well location, he slipped and fell on hot iron, striking an Ibeam, and sustained severe burns to his fingers on his right hand and to the right forearm, in addition to other injuries.

Suit was filed December 15, 1971. The first compensation was not paid until January 18, 1972, in the amount of $686.00, and constituted the accumulated weekly benefits from the date of the accident. Weekly benefits followed in the maximum amount of $49.00 through May 2, 1972, then discontinued for three weeks, which three weeks of nonpayment were caught up on May 22, 1972. Payments were completely discontinued on the latter date. The only medical expenses paid by defendants were two hospital bills totalling $36.25 .

The trial court awarded weekly compensation benefits at the rate of $49.00 per week from the date of the accident, through and including January 10, 1973, crediting the defendants with the amounts previously paid; there was also an award totalling $5,330.05, representing physician, hospital, and drug bills. Additionally the court assessed 12% Statutory penalties and $1,000.00 attorney fees, and finally, fixed expert fees for the medical experts who testified at trial or by deposition.

Defendants have appealed to this court. The plaintiff had neither appealed nor answered defendants' appeal.

At the time of the accident plaintiff, acting as a helper to Billy Wayne Smith who was welding a beam, was 'prizing' a sheet of iron with a sledge hammer, when something slipped and plaintiff fell, striking the hot iron with his right arm and hand. He alleged burns to two fingers of his right hand and the inside of his right forearm . He also complaimed of injuring his knee and kidney. The trial judge concluded that plaintiff was injured in the course and scope of his employment and there is ample evidence in the record to substantiate the trial court's conclusions in that respect.

The only significant work-connected injury sustained by plaintiff was the burn on his inside right forearm. The record shows that the burn was a relatively minor one initially but became infected, causing complications to develop. He was seen by numerous doctors at different times, was hospitalized several times, and the infected arm was treated conservatively. On occasion the arm showed improvement and then relapses would occur with the arm becoming reinfected. Ultimately it became necessary to perform a skin graft on the forearm area and that was done on April 14, 1972.

Plaintiff's first treating physician, although recognizing the seriousness of plaintiff's burn, (which incidentally was testified to by all doctors to be at least a second degree burn and by some, a third degree burn,) was of the opinion, because of a constant reoccurrence of the infection, that the plaintiff did not properly take care of his wound and even suspected that the plaintiff had intentionally reinjured the wound. The trial court concluded that there was no real proof in support of that opinion and we can find no manifest error in that conclusion.

Dr. Charles E. Fontenot, a general practitioner and surgeon, treated plaintiff from December 15, 1971, through November 10, 1972, and in connection with the doctor's testimony the trial judge stated in his reasons for judgment as follows:

'The plaintiff's attending physician, Dr. Charles E. Fontenot, who treated the plaintiff most, and who performed the skin graft on him, felt that plaintiff, because of his injury, infections and complications, was disabled throughout this period of time when he was being treated and hospitalized. The skin graft was performed in April of 1972; he was seen at regular intervals through November 10, 1972, when, he said, the graft area was well healed; the arm was free of infection. There was still some tenderness of the area and the claimant was advised to take precautions against traumatizing the tender area. He still considered him disabled on his last date and stated that in his opinion plaintiff 'could return to heavy work in another two or three months'. It might be added here, that the Court also examined plaintiff's arm and skin graft scar on November 17, 1972; a close scrutiny showed a well healed scar and the Court has no reason to believe on the basis of the best medical evidence presented, that his disability should extend beyond that projected by Dr. Fontenot.

Therefore, the Court holds that plaintiff was disabled by the accident and that his disability has been continuous since and will be through date January 10, 1973, . . .'

In addition to defendant's attempts to show that plaintiff did not properly take care of his wound and that he even may...