Dusang v. Henry C. Beck Builders, Inc.

• Decision Date: 06 October 1980
• Docket Number: No. 67111,67111
• Citation: 389 So.2d 367
• Parties: Jules DUSANG v. HENRY C. BECK BUILDERS, INC. and Aetna Life and Casualty Insurance Company.
• Court: Louisiana Supreme Court

Page 367

389 So.2d 367

Jules DUSANG v.HENRY C. BECK BUILDERS, INC. and Aetna Life and Casualty Insurance Company.

No. 67111.

Supreme Court of Louisiana.

Oct. 6, 1980.

Joseph M. Singerman, Singerman, Cosentino, Broussard, Toups & Troyer, New Orleans, for plaintiff-applicant.

Lawrence J. Duplass, Johnson & Duplass, New Orleans, for defendants-respondents.

Darleen M. Jacobs, New Orleans, amicus curiae for Gary Taintor.

DIXON, Chief Justice.^*

The plaintiffJules Dusang brought this suit against his employer, Henry C. Beck Builders, Inc., and its insurer, Aetna Life and Casualty Insurance Company, for workmen's compensation benefits.The trial court awarded the plaintiff compensation benefits of $95.00 per week for total and permanent disability.A five judge panel of the Fourth Circuit Court of Appeal amended the trial court's decision in a three-two decision;379 So.2d 775.The appellate court held that the evidence supported the trial court's finding that the plaintiff suffered substantial pain even though he continued to work regularly after his accident; however, the court held that the plaintiff was only entitled to an award of benefits based on partial disability.Application for rehearing was denied and this court issued a writ of review on May 30, 1980.

This case presents two principal issues: whether the plaintiff did in fact suffer substantial pain even though he worked regularly after his accident, and whether an injured worker who continues to work (in the same job or in a job similar to the one he had before his injury) but in substantial pain, should be considered totally or partially disabled under the amended version of the Louisiana Workmen's Compensation Act(R.S. 23:1221).The plaintiff argues that the appellate court was correct in finding that he continued to work in substantial pain, but was wrong in finding him partially, rather than totally, disabled.

The plaintiff was employed as an ironworker and a welder by Henry C. Beck Builders, Inc. when he slipped and fell while walking across a wet concrete floor on September 21, 1976, injuring his right shoulder and wrist.He was treated, returned to work, but continued to have pain.¹

It is well settled that:

"... a claimant will not be held to be disabled within the meaning of the Workmen's Compensation Act solely because he suffers some residual pain and discomfort when he attempts to work following a work-connected accident.The residual pain or discomfort in such a circumstance will be considered as being disabling only if it is substantial or appreciable pain.Glidden v. Alexandria Concrete Company, 242 La. 626, 137 So.2d 894(1962);Jackson v. American Mutual Liability Insurance Co., 242 So.2d 903(La.App. 3 Cir.1971).

The claimant who alleges disability because of inability to perform his usual and regular duties without substantial or appreciable pain must establish the existence of that condition to a reasonable certainty and by a fair preponderance of testimony.Ball v. American Marine Corporation, 245 La. 515, 159 So.2d 138(1964);Johnson v. R. P. Farnsworth and Company, 186 So.2d 405(La.App. 1 Cir.1966)." Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923, 925(La.App. 3d Cir.1973).

The record is convincing that plaintiff is in pain; no evidence contradicts his testimony that it is constant.The pain interferes with overhead work and heavy lifting.Nevertheless, he continues to work as a welder, apparently performing all the duties his job requires, except for the heaviest.We find, as did the courts below, that he works in "substantial and appreciable" pain.

Prior to 1975, R.S. 23:1221 defined total disability as the inability of a workman "to do work of any reasonable character."The courts construed this language broadly in favor of injured workmen, holding that an employee should be considered totally disabled whenever his injuries prevented him from performing work of the same or similar nature as that which he was accustomed to performing before his injury.Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9(1932).The courts also held that an employee who was unable to perform his usual and normal duties without substantial pain was totally disabled.Brannon v. Zurich General Accident & Liability Ins. Co., 224 La. 161, 69 So.2d 1(1953).

In 1975the legislature amended the Workmen's Compensation Act and redefined total disability, apparently in order to treat as partially disabled many claimants who previously would have been treated as totally disabled (although earning substantial wages) and to increase the benefits payable to totally disabled employees.

The amended act defines total disability as the inability "to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience ..."(R.S. 23:1221(1) and (2)).This new language suggests that a worker is totally disabled only if he cannot engage in any gainful occupation for wages.A person who can engage in a gainful occupation is not totally disabled, even if such occupation is not the same or similar to his old occupation and even if it is not one for which he is particularly fitted by education, training or experience.In their Louisiana Civil Law Treatise, Workers' Compensation, Vol. 13, 2d Ed., § 272, 598, Malone and Johnson state that the new definition clearly reveals the legislature's intent to overrule the liberal disability standard enunciated in Knispel v. Gulf States Utilities Co., supra.

Under the new act, 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 ..."(R.S. 23:1221(3)).This amended statutory definition of partial disability is substantially the same as the traditional judicial definition of total disability, suggesting that the legislature wished to include in the partial disability category many of the cases previously treated as total disability cases.

Unfortunately, the new act does not address the question of whether an employee who returns to work after an injury, and continues to work while enduring substantial pain, should be considered totally or partially disabled.Some courts have construed the legislature's failure to include language in the act legislatively altering or overruling the old jurisprudence as an expression of the legislature's intent to leave the jurisprudence undisturbed.(SeePhillips v. Dresser Engineering Co., 351 So.2d 304, 309, fn. 3(La.App. 3d Cir.1977)), writ den.353 So.2d 1048(La.1978).They have followed the long-standing jurisprudential rule that a worker who returns to work out of economic necessity but functions only with substantial pain is entitled to total disability benefits.Phillips v. Dresser Engineering Co., supra, andJones v. Arnold, 371 So.2d 1258(La.App. 3d Cir.1979).Other courts have attempted to reconcile the jurisprudential rule with the express terms of the statute, holding that an injured employee should be considered totally disabled if he is unable to pursue any gainful employment without experiencing substantial pain.(Rachal v. Highlands Ins. Co., 355 So.2d 1355(La.App. 3d Cir.1978), writ den.358 So.2d 645(La.1978);Simmons v. State of La. Dept. of Transportation and Development, 368 So.2d 770(La.App. 2d Cir.1979)).In Rachal and Simmons the claimants experienced back pain so severe that they had difficulty sitting or standing for long periods.The courts concluded that the claimants would experience pain in all types of work and therefore found them totally disabled.In both casesthe courts rejected the appellants' contentions that an employee could not be considered totally disabled if he could engage in some type of employment, even if he did so in substantial pain.Some courts have held that if an employee can work in some type of job without experiencing pain he should be considered partially disabled.In Conlay v. Houston General Ins. Co., 370 So.2d 196(La.App. 3d Cir.1979), the court found the claimant who suffered from a knee injury, partially disabled, because he could work in some position without experiencing substantial pain, even though it might not be his former occupation.Similarly, in Dufrene v. St. Charles Police Jury, 371 So.2d 378(La.App. 4th Cir.1979), the court deemed the claimant partially disabled because, while his wrist injury prevented him from continuing in his former occupation of heavy equipment operator, it did not keep him from engaging in lighter work of a similar nature.

Recently, in Whitaker v. Church's Fried Chicken, Inc., 387 So.2d 1093, this court reversed the lower courts and found the claimant, a young man who worked as a janitor, totally disabled.The claimant had severely burned his legs and continued to suffer pain and itching from the scars.This court noted that the claimant was unqualified to take a sedentary indoor job which might alleviate his pain because of his physical and mental capacity and therefore was limited to janitorial work, a job in which he would continue to experience pain.In the case at hand, testimony as to Mr. Dusang's pain is not so strong as in Whitaker's case.Dusang himself stated that the work as an electrician's welder was easier than ironwork.Moreover, Dusang is not the marginal employee Whitaker is.Although Mr. Dusang did state that he would have more opportunities for work if he could work as an ironworker and welder, the testimony at trial does not clearly indicate that he would have great difficulty finding work.

Malone and Johnson have recommended that Louisiana courts adopt the "odd lot" doctrine in...