Fruge v. Hub City Iron Works, Inc.

• Decision Date: 19 June 1961
• Docket Number: No. 286,286
• Citation: 131 So.2d 593
• Parties: Lee Roy FRUGE, Plaintiff-Appellant, v. HUB CITY IRON WORKS, INC., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 593

131 So.2d 593

Lee Roy FRUGE, Plaintiff-Appellant, v. HUB CITY IRON WORKS, INC., et al., Defendants-Appellees.

No. 286.

Court of Appeal of Louisiana, Third Circuit.

June 19, 1961.

Rehearing Denied July 12, 1961.

Willis & Willis, by J. B. Willis, St. Martinville, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe, by James E. Diaz, Lafayette, for defendants-appellees.

Before TATE, SAVOY, and HOOD, JJ.

TATE, Judge.

This is a suit under the Louisiana workmen's compensation act by an injured employee to recover compensation for disfigurement and for impairment of a physical function. Made defendants are the employer and its compensation insurer.

The plaintiff appeals from a trial court award, urging that the weekly amount of compensation awarded is inadequate and also that the trial court incorrectly disallowed his claim for penalties and attorney's fees arising out of the allegedly arbitrary nonpayment of compensation. The defendants answer the appeal, arguing that no compensable impairment resulted from the accident, and, alternatively, that said defendant employer and its compensation insured, because of the continued payment of wages to the employee following the accident, should be allowed credit for such wage payments against any compensation liability.

Plaintiff seeks an award under LSA-R.S. 23:1221(4)(p), which provides:

'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 trial court summarized the facts and applicable jurisprudence as follows:

'There is no question but what the loss of teeth is compensable under the above cited section of Louisiana Workmen's Compensation Act, as is recognized in the recent case of Macaluso v. Schill-Wolfson, Inc., La.App., 56 So.2d 429, and the cases referred to and discussed in that opinion. It is also clear that in cases involving serious permanent impairment of a physical function, the Court must award compensation for a period of one hundred weeks, but is allowed discretion in the amount of such compensation. Odom v. Atlantic Oil Producing Company, 162 La. 556, 110 So. 754.

'Dr. Dupuis testified by deposition that plaintiff's two upper front teeth, to which an already existing bridge was anchored, had to be removed as a result of this blow, and that the crown of another front tooth was broken. It was his opinion, however, that this was the extent of plaintiff's injuries as a direct result of the accident, and that the pyorrhea which he found to exist in the upper jaw was the sole and only cause for the extraction of all of plaintiff's remaining upper teeth. Upon perceiving the condition of plaintiff's upper teeth, it was his recommendation that they all be extracted and a full denture supplied, which he did.

'In view of this positive testimony, the Court cannot agree with the position taken by counsel for plaintiff that the extraction of all of plaintiff's upper teeth was the result of this blow. Regardless of this fact, however, the loss of two upper teeth to which his permanent fixed bridge had been anchored, and the loss of the crown of another tooth does constitute, in my opinion, a serious permanent impairment of a physical function, for which Lee Roy Fruge is entitled to compensation. The maximum to which plaintiff would be entitled under the law is one hundred weeks at the rate of $35 per week, plus all medical expenses. This Court does not feel, however, that such an allowance would be reasonable and in proportion to the compensation specifically provided by the Workmen's Compensation Act in cases of specific disability and, consequently, has concluded that compensation in this case should be fixed at an allowance less than the maximum. (Italics supplied by the Court of Appeal.)

'There is no hard and fast rule to be followed in such matters. Here, the plaintiff was suffering from a disease which necessitated removing all of his upper teeth remaining after the accident, and which were actually unaffected by the blow which he received to his mouth. He had previously lost some of the teeth, for which he had compensated with a fixed bridge. He did lose two teeth to which the bridge was anchored, thus making it apparent that the industrial accident suffered by him did contribute substantially to the impairment of a physical function which he now experiences.

'It is my opinion that plaintiff should be compensated for this injury at the rate of $20 per week from the date thereof for a period of one hundred weeks. * * *'

I.

We agree for the most part with our trial brother's conclusions, except that in our opinion the plaintiff's weekly award should be increased to $35, the statutory maximum.

In the italicized portion of the trial opinion above quoted, it was indicated that the rate of weekly compensation should be fixed, in proportion to the seriousness of the impairment of the physical function, with relation to the maximum compensation rate of $35.00. However, in determining the rate of weekly compensation payable for such impairment, 'the award of the percentage of loss is to be based upon a percentage of 65% Of the full wages paid rather than upon a percentage of the weekly rate of workmen's compensation payable for total disability * * *; although of course the weekly rate thus arrived at shall not exceed the maximum statutory rate of $35 per week, LSA-R.S. 23: 1202'. Francois v. Circle Drilling Company, La.App. 1 Cir., 112 So.2d 771, 774 (citations omitted). In the present instance, therefore, the award is to be based, in proportion to the seriousness of the impairment, upon 65% Of the plaintiff's established weekly wage rate of $96, and not upon the $35 maximum compensation rate.

In the second place, we find that, as well as the loss of the two upper front teeth, the extraction of all of the plaintiff's upper teeth was a result of the accident. Before it, the plaintiff had lost two of the four important upper front teeth, which had been replaced by a stationary bridge attached to the other two upper front teeth. In the accident, the plaintiff was struck in the mouth by a sledge hammer, as a result of which the bridge was smashed and the plaintiff's other two front teeth were broken and required to be extracted (P--3, Tr. 26; 41; 51; 55; 92; 94--95), and the other back teeth were loosened (Tr. 57, 113--114).

Thus, as the dentist testifying for the defendants admitted, the plaintiff had sufficient teeth before the accident to perform the usual functions of teeth, whereas the accident caused the loss of the other two front teeth additional to the two earlier lost, so that there was a serious and permanent impairment in the function of masticating food. Tr. 49. The plaintiff further complained of difficulty in speaking and in adjusting to the use of the upper plate used to replace the upper teeth, all the remaining of which were extracted subsequent to the accident.

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 pre-existing condition of pyorrhea, in his initial report to the plaintiff's employer (see P--3, Tr. 26), 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 (Tr. 45, 51, 58), 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 in the accident, we regard such an argument to have been substantially answered in Macaluso v. Schill-Wolfson, Inc., La.App., 56 So.2d 429, by our brethren of the Orleans Court when it awarded maximum compensation where dentures had been supplied to replace not only some sixteen teeth broken in the accident but most of the other teeth which had been lost previously. There, it was stated, 56 So.2d 431--432:

'* * * consequently, since prior to the accident plaintiff had sufficient teeth to permit him to perform all of the usual functions of teeth, it is proper to hold that his present condition is chargeable to the accident.

'The situation is much the same as that which is found where an employee, prior to an accident, suffers from some latent disease or minor physical disability but is able to perform all that is required of him and, as a result of an accident, the condition is so aggravated that the employee is unable to continue to do the same work. In such case compensation is awarded because of the fact that the accident brought to light a condition which, except for the accident, might never have come to light and which possibly might never have affected the ability of the injured party to perform all of his usual physical functions.'

Further, when the medical treatment for the accidental injuries is cause in fact of the final condition of the employee, such residual is in itself considered a result of the accident and therefore compensable, even where (which we of course we do not imply to be the case here) caused subsequent to...