Employers' Liability Assur. Corp. v. Kelly

• Decision Date: 15 November 1966
• Docket Number: No. 6801,6801
• Citation: 192 So.2d 813
• Parties: The EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Ltd., et al. v. Hubert T. KELLY.
• Court: Court of Appeal of Louisiana — District of US

Page 813

192 So.2d 813

The EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Ltd., et al. v. Hubert T. KELLY.

No. 6801.

Court of Appeal of Louisiana, First Circuit.

Nov. 15, 1966.

Rehearing Denied Jan. 3, 1967.

Albert J. Huddleston, of Huddleston, Hurley, Senter & Davis, New Orleans, for appellant.

Frederick R. Bott, of Deutsch, Kerrigan & Stiles, New Orleans, for appellee.

Before LOTTINGER, REID and SARTAIN, JJ.

REID, Judge.

This is a suit for declaratory judgment brought by Employers Liability Assurance Corporation, Ltd., workmans compensation insurer of Lane and Company, Inc., the employer of the defendant Hubert T. Kelly.

Defendant's employer Lane and Company, Inc., intervened in this suit joining the plaintiff in seeking a declaratory judgment decreeing that its employee, Hubert T. Kelly, was no longer entitled to benefits from the Louisiana Workman's Compensation Act.

To the original petition and the petition of intervention the defendant filed exceptions of prematurity and no cause of action, which were overruled by the Court.

The defendant filed answer to the original petition and the petition of intervention, admitting the accident on July 16, 1963 but denying the remaining allegations and plead that he had sustained a fracture of the right os calcis and serious and permanent disabling injuries to his left knee and that these injuries particularly the one to his right heel have rendered him totally and permanently disabled.

The case was then tried on the merits and judgment rendered in favor of the plaintiff and intervenor against the defendant declaring that the plaintiffs Employers Liability Assurance Corp. Ltd., and Lane and Co., Inc. had no further liability to Hubert T Kelly for any workman's compensation benefits on account of Kelly's accident of July 16, 1963 while working for Lane and Company, Inc.

From this judgment the defendant Hubert T. Kelly has brought this appeal.

The facts are, on July 16, 1963 the defendant Hubert T. Kelly was working for Lane and Company, Inc., on the docks at New Orleans. Kelly was an iron worker and he was engaged at the time in plumbing collumns, that is using a plumb bar to straighten them up. He was walking on a bracer and was stepping from one column to the other when he fell and fractured his right heel, os calcis. He was then taken to Dr. John D. Andrews, the treating physician. Dr. Andrews diagnosed his case as a contusion of the plantar aspect of the right heel with an inverted Y shaped fracture of the right os calcis in good position. He put him in a long leg cast and prescribed crutches and rest with his leg elevated. He predicted a four to six months disability.

Plaintiff insurer paid $35.00 a week compensation to Kelly for a period of 101 weeks or a total of $3535.00. At the time the suit was filed they alleged they would, and did continue paying his compensation, and would continue until after the termination of this litigation. The suit for declaratory judgment was filed on September 4, 1964 alleging that Kelly was discharged to return to work in October, 1963 and has been working continuously for Williams-McWilliams Industries, Inc. since that time, earning a full wage equivalent to his earnings prior to the alleged accident, and that said work since October, 1963 was essentially the same type work he performed prior to the time of the accident on July 16, 1963 .

This suit was filed to avoid any possible penalties under Louisiana Workman's Compensation Act and petitioner continued paying the weekly compensation benefits but alleged that he was not entitled to any further compensation benefits because the injury to his os calcis had healed and he had been paid in full for the percentage of loss of the function of his heel and his injuries do not prevent him from doing work similar to that which he did at the time the accident occurred under similar conditions or circumstances . They further allege that Kelly claimed that in addition to the heel he suffered other injuries, including an injury to his left knee in the aforesaid accident of July 16, 1963 but plaintiff denies this and alleges specifically that complaints referable to his knee are not a result of the accident of July 16, 1963, and in any event, Kelly was not disabled by reason of the condition of his left knee.

Defendant sets up two defenses. First, that since this action is brought pursuant to the Declaratory Judgments Act, and the workman's compensation statute, there is not judicial authority for these proceedings, and second, that he is still permanently disabled in pursuing the same kind of work that he had been doing at the time of the accident.

We will take up the first defense at this time.

Defendant in his Brief states that the only cases which have permitted a declaratory judgment proceedings in a workman's compensation case have emanated from this Circuit. These cases are:

(1) Gary v. Marquette Casualty Co., 72 So.2d 619 (1954)

(2) Employers Liability Assurance Corporation Ltd., v. General Accident & Life Insurance Corporation, La.App., 125 So.2d 689 (1960)

The Gary case, supra, deals with an attempt by an injured employee to obtain a declaratory judgment against the compensation insurer which would set forth the status and extent of his disability. The insurer in the meantime had been making regular and timely payments of weekly compensation benefits under the act. The Court held that an exception of prematurity was sound under the circumstances of that case and dismissed plaintiff's action.

Appellant Kelly contends that as long as weekly compensation benefits are being paid the Declaratory Judgments Act is not available to either party because of the absence of the clear, present and judiciable controversy, and cites the Gary case, supra, in support of this contention. The holding of the Gary case is as follows:

'The purpose of the Uniform Declaratory Judgments Acts, as stated in 1 C.J.S. § 18, verbo: Actions, sub-title: Purposes of Acts, page 1022, is as follows:

"The general or primary purpose of a declaratory judgments statute is to provide a remedy and speedy remedy, in cases of actual controversy, for determining issues and adjudicating the legal rights, duties, or status of the respective parties, before controversies with regard thereto lead to the repudiation of obligations, the invasion of rights, and the commission of wrongs. In other words the purpose of such a statute is to supply deficiencies in legal procedure which existed before the enactment of the statute, to afford relief in cases that could not be tried under existing forms of procedure, and provide a method of procedure to have issues concerning rights speedily determined, which otherwise would be delayed, to the possible injury of, an added expense to, those interested if they are compelled to wait the ordinary course of judicial proceeding.'

'In the present case, a remedy is afforded the petitioner, provided that the provisions of LSA-R.S. 23:1314 is complied with. Furthermore, if the remedy sought were not expressly forbidden by the said Act, we believe that petitioner could have proceeded under the Declaratory Judgments Act even though an additional remedy were provided by the compensation act.

Prior to 1926, an employee could bring suit to determine his future payments under the compensation act even though he were, at the time of the suit, being paid full compensation. However, by Act No. 85 of 1926, LSA-R.S. 23:1314, the compensation act was amended to provide that the plea of prematurity would lie where the petitioner was being paid full compensation. In Lanoue v. Century Indemnity Co., La.App., 30 So.2d 207, at page 208, this court said:

"Before the amendment of Section 18 of Act No. 20 of 1914, the Employers' Liability Act, by Act No. 85 of 1926, an employee could file a suit and obtain a judgment on his claim for compensation, even though he was being paid the maximum allowance, where the employer would not admit liability for a definite amount or for a definite period, or admit that the injury was within any particular class. Daniels v. Shreveport Producing & Refining Corporation, 151 La. 800, 92 So. 341. This ruling was based on the ground that Section 18 (now R.S. 23:1311) permitted either party to file a suit in case of a dispute over, or failure to agree upon a claim for compensation. It was held that a failure to agree on the nature, extent and period of the disability constituted such a dispute as to justify the bringing of an action to have the disputed matter adjudicated.

"However, in the amendment of Section 18 by Act No. 85 of 1926 (after the above ruling was announced), two paragraphs were added to subsection 1 of the Section designated (B) (now R.S. 23:1314) and (C) (now R.S. 23:1318). In our opinion, these two paragraphs were added to the subsection in order to prevent the filing of a suit by an injured employee against his employer where the employer is paying full compensation, even though the employer would not admit the extent of the disability nor the period of time he would continue to pay this maximum compensation. Indeed, the plain wording of paragraph (B) of this amended subsection could mean nothing else. The added paragraph says that unless the injured employee or his dependent alleges in his complaint that he is not being or has not been paid, and that the employer has refused to pay, the maximum per centum of wages to which he is entitled under the provisions of the act, the filing of his suit shall be premature and shall be dismissed."

In the Gary case, supra, the employee was receiving maximum compensation allowable but the employer and his insurance carrier did not admit that the disability was permanent since such relief is expressly prohibited by LSA-R.S. 23:1314. We do not feel that the Gary case is applicable to the present case.

Employers Liability Assurance Corp. Ltd. v. General Accident & Life Insurance Corp., supra, involves a...