Edwards v. Hartford Ins. Co.

• Decision Date: 16 January 1984
• Docket Number: No. 15953-CA,15953-CA
• Citation: 445 So.2d 499
• Parties: Charles EDWARDS, Plaintiff-Appellant, v. The HARTFORD INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 499

445 So.2d 499

Charles EDWARDS, Plaintiff-Appellant, v.The HARTFORD INSURANCE COMPANY, Defendant-Appellee.

No. 15953-CA.

Court of Appeal of Louisiana Second Circuit.

Jan. 16, 1984.

Cook, Yancey, King & Galloway by Charles G. Tutt, Shreveport, for defendant-appellee.

Ike F. Hawkins, Jr., Shreveport, for plaintiff-appellant.

Before JASPER E. JONES, FRED W. JONES, Jr., and SEXTON, JJ.

JASPER E. JONES, Judge.

A judgment was rendered awarding plaintiff, Charles Edwards, workers' compensation benefits for permanent scarring to his face and rejecting his claim for penalties and attorney's fees.Plaintiff appeals the judgment insofar as it rejects his demand for penalties and attorney's fees.The defendant, The Hartford Insurance Co., neither appealed the judgment nor answered plaintiff's appeal.

The plaintiff, while driving a truck for defendant's insured, was injured in an accident at approximately 3:00 p.m. on December 4, 1981 in Many, Louisiana.Plaintiff suffered extensive facial lacerations, among other injuries, in the accident.A doctor in Many referred plaintiff to Dr. Judd Chidlow, a plastic surgeon in Shreveport, for treatment of his facial injuries.

Plaintiff met Dr. Chidlow in the emergency room at Highland Hospital in Shreveport at approximately 5:30 p.m. the day of the accident.Dr. Chidlow described plaintiff as having one of the most extensive facial injuries he had ever treated.The lacerations required from 400 to 500 stitches.Dr. Chidlow gave the following description of plaintiff's injuries in response to questions from plaintiff's attorney in a deposition taken October 25, 1982.

Q.Could you describe the lacerations and the extent of the lacerations to his face, particularly?

A.Yes, sir, primary ones he had, about a two centimeter vertical laceration through his lower lip.He had a five centimeter laceration of the upper lip starting just at the base of the columella of the nose going all the way down to the maxilla and going out into the left cheek.The whole thing was approximately seven centimeters in diameter.The commissure of the left side of his mouth was completely torn out.He had an avulsion of two centimeters defect just below and lateral left lower eyelid, which had underminded down on his cheek.He had a four centimeter laceration of the center of his left cheek.He had about a three centimeter laceration of the left cheek below this.He had a stellate three centimeter laceration in his tongue, the left side of the tongue.His upper alveolar, or the upper bony ridge was lacerated, actually had a fracture of the bone above the right central incisor and lateral incisor and canine tooth.He had two small lacerations on the center of his upper lip.In addition, he had a ten centimeter laceration in the left neck and shoulder, and about a five centimeter laceration of his right forearm.

Q.Now I believe that you are reading from a report that you had worked up dated December 4th?

A.That is correct.

Q.Number three on that report says, the lacerations to the upper lip.Now they started at the base of the--

A.This is the columella of the nose (indicating).

Q.That would be the mid-part of the underside of the nose?

A.Yes, sir, and it went up into the nose.

Q.And it ran from there to where?

A.Well, let me read that again to clarify it.Five centimeter laceration starting--laceration to the upper lip, starting just at the base of the columella of the nose, going all of the way down to the maxilla and the bone behind that and going out into the cheek on the left side.So it went out like so (indicating).

Q.Now # 4, the avulsion injury.What did that tear out?

A.Okay, that was an avulsion of about two centimeter defect below the left lateral eyelid, just a piece of tissue was actually just gone from there.We had to swing a flap to bring a piece back to prevent his eye from being pulled down.He actually lost a piece of tissue in that area.

Dr. Chidlow answered these questions by reading from a report that he made on the date of plaintiff's accident.There is no indication in the record that defendant ever received this report.

Plaintiff was off work for approximately 7 weeks after the accident.During that period of time defendant paid him weekly benefits totalling $1,333.28.Defendant also paid plaintiff's medical expenses.When plaintiff returned to work his weekly benefit payments were terminated and he secured the services of an attorney.The attorney made numerous demands on defendant to resume paying weekly benefits to plaintiff for the scars on his face.The defendant repeatedly refused and suit was filed July 9, 1982.On October 4, 1982defendant tendered a $5,500.00 check to plaintiff which he apparently accepted.¹The matter came to trial March 9, 1983.

By stipulation of the parties the only injury to plaintiff at issue in the trial was the facial scarring.At the close of the trial, the trial court awarded plaintiff $183.00 per week for 100 weeks, which is the maximum benefits that could have been awarded.²Since the amount of the award is not questioned by either party, this appeal is limited to the issue of whether the trial court properly rejected plaintiff's claim for penalties and attorney's fees.

The failure of a workers' compensation insurer to pay a claim due within 60 days after satisfactory proof of the injury from the injured employee subjects the insurer to a statutory penalty of 12% interest and reasonable attorney's fees where the failure to pay is found to be arbitrary, capricious or without probable cause.La.R.S. 22:658.³See alsoR.S. 23:1201.2.The question of whether penalties and attorney's fees will be awarded for termination of benefit payments is subject to the same arbitrary and capricious standard.SeeJohnson v. State Farm Mut. Auto. Ins. Co., 342 So.2d 664(La.1977);Johnson v. Continental Ins. Companies, 410 So.2d 1058(La.1982).

Whether or not a termination of or refusal to pay benefits is arbitrary, capricious or without probable cause depends primarily on the facts known to the insurer at the time of its action.Lee v. Smith, 248 La. 16, 176 So.2d 413(1965);Arthur v. McConnell, 286 So.2d 499(La.App. 2d Cir.1973);Hughes v. Webster Parish Police Jury, 414 So.2d 1353(La.App. 2d Cir.1982);Scott v. Sears, Roebuck & Co., 406 So.2d 701(La.App. 2d Cir.1981).The question is ultimately one of fact and the trial court's finding should not be disturbed on appeal absent manifest error.Scott v. Sears, Roebuck & Co., supra;Kilbourne v. Armstrong, 351 So.2d 802(La.App. 1st Cir.1977).

Defendant claims its termination of benefit payments was not arbitrary, capricious or without probable cause because the facts known by it at the time established legitimate questions as to whether any benefits were owed and if and when it became apparent that benefits were owed the amount of such benefits.⁴

An injured employee who sustains facial scars from a job related accident may recover compensation benefits under La.R.S. 23:1221(4)(p) which provides:

In cases not falling within any of the provisions already made, 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 in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-six and two-thirds per centum of wages during one hundred weeks.(emphasis added)

In cases involving facial scarring this provision requires that the scars be both materially disfiguring and permanent in nature.Templet v. Travelers Insurance Company, 278 So.2d 805(La.App. 1st Cir.1973);Dykes v. North River Insurance Company, 270 So.2d 329(La.App. 1st Cir.1972);Addison v. Neeb Kearney & Company, 252 So.2d 471(La.App. 4th Cir.1971).

The defendant's adjuster, Chuck Mullis, testified that the only medical report which the defendant ever received as to the nature of plaintiff's facial scars was a report from Dr. Chidlow dated February 23, 1982 which it received on March 1, 1982.It stated:

"I have not seen Mr. Edwards since January 4, 1982.I do not suspect any permanent damage with the exception of scars on his face.As you noted, I did plastic surgery to repair these, but always it would be a possibility that some scar revision operations would be necessary depending on how much this bothers him.I do not think his dizziness will be permanent, and from my standpoint, he can go back to work at any time and could have at any time that his dizziness subsided to the point where he can drive his truck."⁵(emphasis added)

A review of the letter establishes only that the plaintiff would have some permanent scarring which would be subject to improvement by plastic surgery.The letter does not establish the nature or extent of the permanent scarring nor whether or not it would cause the plaintiff to be "seriously permanently disfigured about the face or head" in order for the scarring to be compensable within the contemplation of R.S. 23:1221(4)(p).When defendant received this letter it was placed under a duty to investigate plaintiff's claim by seeking further information from Dr. Chidlow.SeeBilliot v. Alton's Bakery of Morgan City, 398 So.2d 624(La.App. 1st Cir.1981);Self v. Riverside Companies, Inc., 382 So.2d 1037(La.App. 2d Cir.1980);Dowden v. Liberty Mut. Ins. Co., 346 So.2d 1311(La.App. 3d Cir.1977);Zeringue v. Fireman's Fund American Insurance Co., 271 So.2d 613(La.App. 1st Cir.1972);Barham v. Mathieu, 198 So.2d 145(La.App. 1st Cir.1967).

Dr. Chidlow is the only doctor who ever examined, treated and evaluated plaintiff's facial injuries and he testified in a deposition taken on October 25, 1982 and introduced as evidence at trial on March 9, 1983 that he last examined plaintiff in January, 1982.⁶

In this deposition the plastic surgeon described the...