Flowers v. E. M. Toussel Oil Co., 2163

• Decision Date: 15 July 1966
• Docket Number: No. 2163,2163
• Citation: 190 So.2d 147
• Parties: Joe FLOWERS v. E. M. TOUSSEL OIL CO., and the Employers Liability Assurance Corporation.
• Court: Court of Appeal of Louisiana — District of US

Page 147

190 So.2d 147

Joe FLOWERS v. E. M. TOUSSEL OIL CO., and the Employers Liability Assurance Corporation.

No. 2163.

Court of Appeal of Louisiana, Fourth Circuit.

July 15, 1966.

Rehearing Denied Oct. 5, 1966.

Writ Refused Nov. 18, 1966.

Owen J. Bradley, New Orleans, for plaintiff-appellant.

Simon, Wicker & Wiedemann, Lawrence D. Wiedemann, New Orleans, for defendants-appellees.

Before SAMUEL, CHASEZ and BARNETTE, JJ.

SAMUEL, Judge.

This is a suit under the Louisiana Workmen's Compensation Act for total and permanent disability allegedly resulting from a knew injury suffered by the plaintiff in an accident which occurred while he was working as a service station attendant. Named defendants are plaintiff's employer at the time of the accident and its compensation insurer. Plaintiff has appealed from an adverse judgment dismissing his suit.

At the time suit was filed plaintiff had been paid compensation benefits in the maximum weekly amount of $35 from June 17, 1964 through February 3, 1965, and weekly sums of $10 thereafter through the first day of trial on June 2, 1965, or a total of $1,395, plus medical charges. At the time of trial he was receiving compensation benefits at the rate of $10 per week, the maximum amount under the act for the percentage disability of his left leg as testified to by plaintiff's medical witness.

The trial court found as a fact that plaintiff was not suffering from any disability within the purview of the act other than that for which had been and was being compensated. Although all payments were made by the defendants voluntarily, in the trial court they denied the occurrence of the accident as alleged and alternatively denied a causal connection between the accident and the disability of which plaintiff complained. However, as the defendants have not answered the appeal and seek only an affirmation of the trial court judgment, those issues are not before us insofar as that judgment is concerned.

Plaintiff contends he is entitled to total and permanent disability benefits because: (1) although he has worked since the accident, such work has been done in pain of sufficient severity as to be disabling under the act; (2) his injury renders him unable to do work of a kind similar to that which he performed prior to the accident; and (3) the injury is of such a character as to substantially handicap him in competing with able-bodied workers in the common labor market.

Plaintiff sustained a blow to his left knee on May 28, 1964. Several days after the accident his employer sent him to Dr. V. P. Blandino, a general practitioner. The injury failed to respondent to conservative treatment, which included aspirating the joint for removal of bloody fluid, and Dr. Blandino suggested consultation with Dr. Irving Redler. On August 10, 1964, following a further period of unsuccessful conservative treatment, an arthrotomy was recommended and performed by Dr. Redler for the removal of the medial semilunar cartilage. During the operation this doctor discovered a condition within the joint cavity known as pigmented villonodular synovitis, an uncommon and serious pathologic condition . On November 18, 1964, after post operative treatment, plaintiff was advised by Dr. Redler to return to work which did not include prolonged squatting, stooping or climbing. Plaintiff was not rehired by the defendant service station. Since his discharge by Dr . Redler he has worked at various jobs including dishwasher, waiter, laborer in construction work, and laborer engaged in landscaping. At the time of trial he was working as a janitor.

Eleven witnesses testified during the course of the trial, six for the plaintiff and five for the defendants. The medical evidence consists of the testimony of two physicians, Dr. Redler, the treating physician, who testified for the defendants, and Dr. Jack Wickstrom, who examined plaintiff and testified for him. Both doctors are specialists in orthopedic surgery.

Dr. Redler testified as follows: The operation revealed two basic conditions of the left knee, a torn medial meniscus, which is associated with trauma, and pigmented villonodular synovitis, the etiology of which is unknown but which may be aggravated by trauma. The torn medial semilunar cartilage and, insofar as was possible, all of the diseased lining of the joint were removed. The doctor stated it was not possible to remove all of the diseased lining because of the danger of disarticulation. The results of the operation were excellent, much better than this doctor had anticipated or had ever seen in any similar case. The patient made steady improvement, was relieved of his pain and, for practical purposes, made a full recovery. Dr. Redler was unable to find any atrophy, a condition ordinarily expected to occur, the absence of which indicated normal function of the muscles. However, he also testified plaintiff would never return to a 100% Normal limb anatomically. In his opinion plaintiff did have a 15% Disability of the lower left extremity and, although pain is a subjective thing, the occurrence of pain in connection with squatting and stopping would not be inconsistent with the medical findings. His opinion remained unchanged after reexamining plaintiff before the trial.

Dr. Wickstrom examined plaintiff on two occasions after he had been discharged by Dr. Redler. He was of the opinion that plaintiff's residual disability represented 17% Of the lower left extremity. He felt the synovitis condition, which was permanent and had not been eradicated by the operation, had been aggravated by the trauma involved in the accident. While he agreed the etiology of pigmented villonodular synovitis is unknown and cannot be said to result from trauma, the condition characteristically can go in cycles and become worse, particularly if plaintiff reinjures his knee. This doctor testified he cannot say whether or not plaintiff would be free of pain. However, he did believe plaintiff had reason to have pain when he squats, when he gets down, when he kneels or goes up and down steps and simply from exhaustion; and plaintiff can be expected to have some discomfort from normal, active use of the knee.

Plaintiff's four lay witnesses were his wife, a person for whom (or with whom) he worked in construction both before and since the accident, a fellow laborer with whom he worked before and since the accident, and a service station operator who testified to the usual type of work performed by service station attendants, which work does involve stopping and squatting.

The testimony of these witnesses (other than the service station operator) was that plaintiff was able to perform hard manual labor without difficulty prior to the accident and unable to do so after. The person for or with whom he worked was engaged in construction. He testified that after the accident plaintiff was unable to keep up with the remainder of the crew, only worked part time and never a full day, complained of his leg, couldn't dig or bend and, because of the friendship between this witness and plaintiff, was allowed to rest at various times during work and also was allowed to avoid the heavier tasks. The fellow worker testified to...