Dodd v. Nicolon Corp.
| Decision Date | 29 October 1982 |
| Docket Number | No. 82-C-0790,82-C-0790 |
| Citation | 422 So.2d 398 |
| Parties | Linda B. DODD v. NICOLON CORPORATION, et al. |
| Court | Louisiana Supreme Court |
Dennis R. Whalen, Baton Rouge, for plaintiff-applicant.
William J. Doran, Jr., William T. Kivett, Doran & Kivett, Baton Rouge, for defendant-respondent.
The plaintiff, Linda Dodd, now married to Ollie Perry, suffered an injury to her knees as a result of an accident arising out of and in the course of her employment with Nicolon Corporation, a/k/a United States Textures Sales Corporation. Plaintiff brought this suit against Nicolon Corporation and its insurer, The Maryland Casualty Company, seeking workmen's compensation benefits based on total permanent disability, or in the alternative, permanent partial disability. In addition, the plaintiff prayed for penalties and attorney's fees for the defendants' failure to pay compensation.
After a hearing on the merits, the trial court dismissed the plaintiff's suit by finding that Perry's continuing disability was attributed to her failure to engage in exercises prescribed by her doctor. The court of appeal affirmed in its original hearing. On rehearing, the appellate court again refused to grant the plaintiff any disability benefits, but did award her penalties in the amount of 12% of $1,805.00 together with $100.00 in attorney's fees. Since neither party has complained to this court concerning the court of appeal's award of penalties and attorney's fees, we uphold this portion of the judgment. We believe, however, that the lower courts erred in failing to grant the plaintiff partial permanent disability benefits.
Linda Dodd Perry was employed by Nicolon Corporation as office manager for a warehouse which stored large rolls of erosion control filter fabric. Part of Perry's job included the act of climbing on the rolls in order to cut samples for customers. On May 16, 1977, as Mrs. Perry was climbing on the rolls of fabric, she slipped and fell, striking her knees on the concrete floor.
The day following the accident, the plaintiff visited the office of Dr. James Kilroy, an orthopedic surgeon. Perry complained of pain in her left knee. After an examination of the plaintiff revealed tenderness in the area of the knee, Dr. Kilroy placed her on one crutch with a splint and an ace wrap. Three days later, Mrs. Perry returned to Dr. Kilroy's office. At this time, she was instructed to use two crutches.
On June 20, 1977, Dr. Kilroy diagnosed Perry's condition as chondromalacia of both patellas. Chondromalacia, as explained by Dr. Kilroy, is a roughness in the back of the kneecap which causes a grinding sensation, in addition to pain and swelling. After several more visits with Mrs. Perry, Dr. Kilroy determined that surgical intervention was necessary to correct the condition. On April 26, 1978, surgery was performed on the plaintiff's left knee to shave the rough areas under the knee. Similar surgery was performed on the right knee on September 5, 1978.
The plaintiff commenced physical therapy on October 18, 1978. Dr. Kilroy examined the plaintiff's knees on February 9, 1979 and found that she had full, unrestricted motion in her right knee. Perry was then referred to a physical therapist for a final evaluation. Upon receipt of the therapist's report, Dr. Kilroy wrote a letter on February 14, 1979 to the Maryland Casualty Company to inform it that he was of the opinion that the plaintiff could return to work as long as she did not do any excessive kneeling or climbing.
On October 29, 1979, the plaintiff complained to Dr. Kilroy that she was experiencing pain and weakness in both knees. The doctor attributed this weakness to Mrs. Perry's failure to perform her exercises, and he instructed her to continue her physical therapy. The plaintiff did undergo physical therapy for several weeks, but it was interrupted when she developed a neuroma of her left knee. This neuroma was surgically removed on January 22, 1980. Subsequently, however the plaintiff contracted phlebitis and was placed on crutches for an extended period of time. When she recovered from phlebitis, Dr. Kilroy performed a plastic closure to reduce the size of the scars on Linda Perry's legs. The plaintiff developed suture abscesses as a result of this operation.
By February 27, 1980, plaintiff was once again able to resume physical therapy. In August, 1980, however, Mrs. Perry returned to Dr. Kilroy and complained of weakness in her knees. Dr. Kilroy later testified that he believed that the plaintiff's decreased strength was a result of her failure to do her exercises. He further testified that, with proper exercise, Mrs. Perry could perform any job, as long as it did not involve excessive kneeling or squatting.
Plaintiff concedes in brief that she is not permanently and totally disabled. This does not, however, preclude her from receiving any compensation award at all. Schouest v. J. Ray McDermott and Co., Inc., 411 So.2d 1042 (La.1982); Allor v. Belden Corp., 393 So.2d 1233 (La.1981). La.R.S. 23:1221(3) as amended provides that an employee is deemed partially disabled if he is unable "to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience..." We find that the preponderance of the evidence shows that Linda Perry is permanently and partially disabled.
The record reveals that Mrs. Perry underwent surgery on her knees on April 26, 1978 and September 5, 1978. As a result of this surgery, Dr. Kilroy awarded the plaintiff a total, permanent physical impairment rating of fifteen percent for each knee. Since these surgical procedures involved the removal of cartilage which provides a cushion for the kneecap, Dr. Kilroy told Mrs. Perry that she should refrain from any excessive kneeling. 1
At the time of her accident, Linda Perry was employed by Nicolon Corporation as an office manager. Although her job was supervisory in nature, she was expected to perform the duty of cutting material for samples or for a sale. Mrs. Perry testified that this material was stored on large rolls and were stacked as many as twenty rolls high. In order to obtain a sample, the plaintiff would climb on the rolls, pull a roll out of the stack, and stretch it out on the floor of the warehouse. Then the material would be marked, and the plaintiff would get on her hands and knees to cut it with a pair of scissors or long shears. Mrs. Perry testified that she was expected to perform these acts almost on a daily basis.
Recently, in Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981), this court found a claimant to be partially disabled when his work-related injury prevented him from performing significant physical tasks which were expected by his employer and important to the effective performance of his work, even though the physical tasks were incidental to his supervisory position. In the present case, Mrs. Perry was expected by her employers to cut material for samples or for sales. The physical task of cutting such material required excessive kneeling, and Dr. Kilroy specifically stated that, due to her knee surgery, the plaintiff...
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... ... Felde, 422 So.2d at 395; ... State v. Dodd, 120 Wash.2d 1, 838 P.2d 86 (1992); ... Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, ... ...
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State v. Bordelon, No. 07-KA-0525 (La. 10/16/2009), 07-KA-0525.
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