Freechou v. Thomas W. Hooley, Inc.

• Decision Date: 07 April 1980
• Docket Number: No. 65553,65553
• Citation: 383 So.2d 337
• Parties: Sidney W. FREECHOU v. THOMAS W. HOOLEY, INC. and Travelers Insurance Company.
• Court: Louisiana Supreme Court

Page 337

383 So.2d 337

Sidney W. FREECHOU v. THOMAS W. HOOLEY, INC. and Travelers Insurance Company.

No. 65553.

Supreme Court of Louisiana.

April 7, 1980.

Rehearing Denied May 19, 1980.

James J. Morse, Law Offices of James J. Morse, New Orleans, for defendants-respondents.

Ira J. Middleberg, Miranne & Miranne, New Orleans, for plaintiff-applicant.

CALOGERO, Justice.^*

Plaintiff in this workman's compensation suit alleged that he sustained an inguinal hernia in an accident while working. Summary judgment for defendant in the district court was affirmed in the Court of Appeal.

Sidney W. Freechou was employed by Thomas W. Hooley, Inc. on November 19, 1976. On that date, Freechou alleges that while carrying a heavy cylinder of gas across a set of railroad tracks he slipped and felt a pull in the lower left side of his groin. He alleges that this incident caused an indirect inguinal hernia. Plaintiff further alleges that he reported the incident to his employer the next working day, Monday, November 22, 1976. He was not seen by a physician, nor did he receive medical treatment of any kind until March 4, 1977, some three months after the accident.

Defendants, Hooley and their insurance carrier Travelers, filed a motion for summary judgment based upon R.S. 23:1221(4)(q)(i), and relying upon the fact that the plaintiff was not attended by a physician within thirty days of the accident. The trial court granted the motion and dismissed the suit. The Court of Appeal affirmed the ruling of the trial court.

We granted writs to determine whether, as a matter of law, a workman who suffers an inguinal hernia from an accident occurring in the course and scope of his employment is barred from recovering for that injury under R.S. 23:1221(4)(q)(i) because he is not attended by a physician within thirty days after promptly reporting the accident to his employer. Freechou v. Hooley, 376 So.2d 326 (1979).

Because of the occasional difficulty encountered by the courts in determining whether the hernia occurred within the course and scope of the employment, R.S. 23:1221(4)(q)(i) was added to the Workmen's Compensation Act by Acts 1968 (Ex.Sess.) No. 25. Guillory v. Farrar, 182 So.2d 158 (La.App. 3rd Cir. 1966). That statute provides:

"In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer, and that the employee was attended by a physician within thirty days thereafter."

We are called upon in this case to interpret and apply this statute. At the outset, we recognize that the purpose of the Workmen's Compensation Act is to provide the employee with prompt compensation for any "personal injury by accident arising out of and in the course of his employment," unless such compensation is specifically excluded. R.S. 23:1031.

R.S. 23:1221(4)(q)(i), interpreted most favorably to defendant, is not in keeping with that general purpose for it speaks of requirements more stringent than simply a showing of injury suffered in the course and scope of employment.

While we are constrained to interpret this statute only in a reasonable fashion we are nonetheless also cognizant of our obligation to construe the compensation statutes liberally in favor of finding coverage, whether to defeat a tort suit or to afford compensation to the injured employee. Danielson v. Security Van Lines, Inc., 245 La. 450, 158 So.2d 609 (1963); Johnson v. Cabot Carbon Co., 227 La. 941, 81 So.2d 2 (1955); and Leblanc v. Commercial Union Assurance Co., 349 So.2d 1283 (La.App. 1st Cir. 1977).

The Court of Appeal in this case held that the thirty day limitation in the statute (in addition to the requirement for prompt reporting) is a "standard of proof" which must be met by the workman making a claim for an inguinal hernia, and that absent plaintiff's meeting the standard or establishing such proof, the claim is to be barred. We do not agree with this interpretation of the statute for it would lead to irrational and unjust results in some situations if so applied.

R.S. 23:1221(4)(q)(i)'s language is that, "In all claims for inguinal hernia, it must be established by a preponderance of the evidence that . . . ." The statute does not directly assert that it is the plaintiff, or workman, who must "establish by . . . preponderance" the prompt report and attendance by a physician within thirty days; nor does it specify the consequence of failure in this respect. In other sections of the Workmen's Compensation Act, the Legislature has been quite specific where they have chosen to bar a workman's claim absent his compliance with certain statutory requirements. For example, R.S. 23:1031.1(E) provides, "All claims for disablement arising from an occupational disease are forever barred unless the employee files a claim with his employer within four months . . . ; " Section F of that same statute provides, "All claims for death arising from an occupational disease are forever barred unless . . . ; " and R.S. 23:1291 provides, "No proceeding under this Chapter for compensation shall be maintained unless . . . ." Standing alone, this argument, that the statute does not unequivocally place upon the employee the burden of prompt reporting and seeing to attendance by a physician, would perhaps be insufficient to support a conclusion that the statute is ambiguous, for the argument can be made that the statute implies that these are the claimant's burdens. Along with other considerations, however, the aforestated argument does indeed lend support to the conclusion that the statute is ambiguous.

The principal consideration, and a compelling reason for concluding that the statute is ambiguous, is the irrational and unjust result which would follow defendant's construction in some fact situations including the one in the present case. Here the accident was reported promptly to the employer, for plaintiff reported his late afternoon accident on the morning of the immediately succeeding work day. It was not evident to him at that time that he had suffered a disabling injury or inguinal hernia.¹ Nor was the workman's condition so immediately disabling as necessarily to require medical attention to facilitate his continued working.² If we were to accept defendant's construction of the statute (that the workman's claim is barred if he is not seen by a physician within thirty days of the accident), then in this case plaintiff's claim would be barred before he ever discovered that he sustained the injury.

Furthermore, a workman who fails or neglects to report an accident immediately may be in a better position than one who does report it immediately. This is so because the workman need only report the accident "promptly," followed by the thirty days for attendance by a physician. Thus, a plaintiff like the one in Graver v. Zeeman Enterprises, Inc., 362 So.2d 1228 (La.App. 4th Cir. 1978) whose report was found to have been prompt when made some ten weeks after the accident, would not be barred although seen by a physician some twelve weeks post accident, while a workman reporting the accident immediately and not seen by a physician within thirty days thereafter would be barred less than five weeks post accident.³

The apparent purpose of the statute is to facilitate early diagnosis and avoidance of the sometimes vexatious proof problems in hernia cases. This purpose is served by the workman's prompt report of the accident and the employer's consequent opportunity to require the workman's attendance by a physician. After prompt notification of the accident, the responsibility for insuring the workman's attendance by a physician within thirty days is equally, if not more so, that of the employer. To place the entire burden upon an employee, promptly reporting an accident, to attend a physician of his choice at his own initial cost within thirty days of the report (even though he may not be aware of his injury) under threat of barring his claim, is to invite an employer to desist from sending the workman to a doctor, with his reward being the avoidance of compensation liability. Such an irrational and unfair situation could not have been the intention of the legislature. Furthermore, this is at variance with the employer's obligation under R.S. 23:1122,⁴ to cause an examination of an injured workman immediately upon receiving knowledge or notice of the accident.

There is little doubt in our view, that R.S. 23:1221(4)(q)(i) is ambiguous for the reasons expressed hereinabove. And, "Where a statute is ambiguous and susceptible of two constructions, the courts will give that construction which best comports with the principles of reason, justice, and convenience, for it is to be presumed that the legislature intended such exceptions to its language as would avoid its leading to injustice, oppression, or absurd consequences." State v. Standard Oil Company of Louisiana, 188 La. 978, 178 So. 601 (1937); and Flanagan v. A...