Eaves v. Louisiana Cypress Lumber Co.

• Decision Date: 04 March 1968
• Docket Number: No. 7261,7261
• Citation: 208 So.2d 380
• Parties: Duelle D. EAVES, Plaintiff-Appellant, v. LOUISIANA CYPRESS LUMBER COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 380

208 So.2d 380

Duelle D. EAVES, Plaintiff-Appellant, v.LOUISIANA CYPRESS LUMBER COMPANY, Defendant-Appellee.

No. 7261.

Court of Appeal of Louisiana, First Circuit.

March 4, 1968.

Rehearing Denied April 8, 1968.

Writ Granted May 17, 1968.

Robert J. Mack, of Sims & Mack, Hammond, for appellant.

Pierson & Pierson, Ponchatoula, for appellee.

Before LOTTINGER, ELLIS, and CUTRER, JJ.

CUTRER, Judge.

This is a workmen's compensation action wherein plaintiff, Duelle Eaves, a millright, seeks compensation under the provisions of L.S.A . R.S. 23:1221(4)(p) for the permanent impairment of a physical function caused by the accidental loss of teeth arising out of and during the course of his employment with defendantLouisiana Cypress Lumber Company.From an adverse judgment plaintiff appeals.

Defendant paid the dental expenses and the remaining issues presented are the amount, if any, of compensation to be awarded and, if so, should plaintiff be entitled to recover penalties and attorney fees.

By answer filed to the petition it was admitted that plaintiff was employed by defendantSeptember 3, 1964 upon which date plaintiff suffered certain injuries to the face and teeth as a result of his employment.It was further admitted by answer that plaintiff's employment was hazardous within the meaning of the Louisiana Workmen's Compensation Act and if plaintiff is entitled to compensation he is entitled to recover the maximum rate thereof.

The evidence preponderates that plaintiff, on September 3, 1964, was performing his duties for defendant as a millright attempting to loosen some bolts holding an electric motor when a wrench slipped and struck him in the mouth.He was immediately sent to a physician, Dr. E. E. Faulkenberry.This physician felt that plaintiff's problem was one for a dentist and thus referred him to Dr. Richard P. Lesneski for dental treatment.

Dr. Lesneski testified that, upon examination, he found plaintiff'had suffered a blow to his mouth cutting the inside of his lip considerably and knocking out two upper front teeth and loosening four lower front teeth and three other upper front teeth.'He extracted two of the front teeth and considerable bone the day of the accident.He repositioned the loosened teeth in the hopes that they would tighten and the bone would heal.Stitches were removed September 10, 1964.By March of 1965 the loosened teeth had not tightened as was hoped.The seven loosened front teeth were then removed leaving plaintiff with nine teeth since he had lost fourteen prior to the accident.The dentist testified that plaintiff's teeth were generally involved with periodontal disease which would require treatment.He stated that at this point in the procedure he was faced with two alternatives.He could put in a removable partial plate to replace the missing teeth or he could remove the remaining teeth and put in full dentures.After discussing the problem with plaintiff the latter procedure was followed.

Following the occurrence of the accident, plaintiff continued his work for the defendant with no loss of time due to the injuries received.He performed his usual duties with defendant for approximately one year and seven months at which time he voluntarily terminated his employment and took employment for another company in the same capacity at higher wages.

Plaintiff seeks an award under the provisions of L.S.A. R.S. 23:1221(4)(p) which reads as follows:

'In cases not falling within any of the provisions already made (i .e., for disability or for specific injuries), where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and as in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks.'

The question of workmen's compensation awards for the loss of teeth has been considered by the courts of this state in several cases including the following: Odom v. Atlantic Oil Producing Co., 162 La. 556, 110 So. 754;Wallace v. Natural Gas & Fuel Corp., 8 La.App. 614;McBride v. Natural Gas & Fuel Corp., 9 La.App. 513, 119 So. 722;Smith v. L. H. Gilmer Co. of Louisiana, 11 La.App. 336, 123 So. 451;Sadler v. May Bros., Inc., La.App., 185 So. 81;Goins v. Shreveport Yellow Cabs, La.App., 200 So. 481;Macaluso v. Schill-Wolfson, Inc., La.App., 56 So.2d 429--431;andFruge v. Hub City Iron Works, Inc., La.App., 131 So.2d 593.

In the Frugecase, supra, the court was faced with circumstances very similar to those in the instant case.In that caseplaintiff had lost two front teeth as a result of the accident.The remainder of the teeth were affected by pyorrhea.All the teeth were removed and replaced by dentures.The court made this observation:

'Although the defendants-appellees rely upon the attending dentist's opinion that the extraction of the remainder of the upper teeth was entirely due to a preexisting condition of pyorrhea, in his initial report to the plaintiff's employer, this witness had considered the removal of these additional upper teeth as an incident to the treatment prescribed by him for the injuries accidentally received.He testified to such effect also in his deposition introduced at the trial explaining that he could have supplied either a new four-tooth stationary bridge, or else (after extracting the remaining upper teeth) a full denture, which latter treatment he recommended both to the employer and to the employee as more suitable because of the deteriorated condition of the plaintiff's gums and remaining teeth.

Although the defendant contends that the employee is not entitled to compensation for the additional serious impairment of physical function sustained by the plaintiff because the rest of his upper teeth were removed as well as those injured...