Glidden v. Alexandria Concrete Co.

• Decision Date: 19 February 1962
• Docket Number: No. 45853,45853
• Parties: Donald F. GLIDDEN v. ALEXANDRIA CONCRETE COMPANY, Inc., et al.
• Court: Louisiana Supreme Court

Page 894

137 So.2d 894

242 La. 626

Donald F. GLIDDEN v. ALEXANDRIA CONCRETE COMPANY, Inc., et al.

No. 45853.

Supreme Court of Louisiana.

Feb. 19, 1962.

Stafford & Pitts, Alexandria, for applicants.

Lloyd G. Teekell, John M. Sherrill, III, Alexandria, for respondent.

McCALEB, Justice.

This is an action to recover workmen's compensation for total and permanent disability and for penalties and attorney's fees. The claimed disability has allegedly resulted from a cement dermatitis contracted by plaintiff while he was operating a cement truck in the course and scope of his employment. The facts of the case are not disputed and the only issue is: Does the plaintiff's skin condition render him disabled '* * * to do work of any reasonable character * * *' within the meaning and intendment of the Compensation law.

Plaintiff, who was 25 years old at the time of trial, had a work history prior to his employment with the defendant, Alexandria Concrete Company, Inc., of driving a moving van, operating a drill press in a factory, and being a truck driver while in military service. When his skin condition arose, plaintiff had been in the company's employ for approximately six months and was earning an average of $55.00 per week. His duties consisted of driving the cement truck, operating the cement mixer thereon, and loading and unloading both wet and dry cement. This job required training to the extent that, when the plaintiff first went to work for the company, he accompanied another driver for four days before being assigned to a truck on his own

The work made it necessary that plaintiff's bare skin be in contact with cement. On November 26, 1957, plaintiff discovered a rash on his face and neck. When the condition grew worse over the next few days, plaintiff consulted his family physician who placed him under the care of Dr. W. H. Hamilton, a dermatologist. Dr. Hamilton diagnosed the condition as 'acute cement dermatitis'. Plaintiff was hospitalized for seven days and, since that time, he has remained under the care of Dr. Hamilton, receiving numerous and varied treatments for bodily rashes resulting from 'flare-ups' of the dermatitis. Dr. Hamilton found that this was not the usual type of cement dermatitis but was a chromatic reaction to the minute amounts of chromates that are contained in cement. He stated that, in cases of chromate reaction the prognosis is necessarily indefinite and the condition may go on for a long time. With respect to the nature of the condition, Dr. Hamilton testified:

'Chromate is a very peculiar thing in that it apparently develops a change in the skin after a chromate sensitivity. The skin gets dry and they get to where they are very sensitive to heat, heat from bodily exertion or heat from weather. And any tendency to perspire after they have a chromate sensitivity breaks them out in what we call a chromate eczema which is a rash that is usually on the areas that have been most greatly exposed to the chromate * * *'.

Two other dermatologists, a Dr. Jolly and a Dr. Henington, supported Dr. Hamilton's diagnosis and his statement of the nature and duration of chromate sensitivity. Dr. Henington's views were obtained by the taking of his deposition and Dr. Jolly's through a written medical report which was included in the record by stipulation of the parties. The only thing added by these two dermatologists to Dr. Hamilton's testimony at the trial was Dr. Henington's emphatic opinion that there was no reason that the plaintiff could not work as a truck driver so long as he did not come in contact with cement or other substances containing chromates. Also, on cross-examination, Dr. Hamilton conceded that the plaintiff could drive trucks carrying a number of different products but that, if he got hot and perspired, he would itch and be uncomfortable.

Compensation was paid by the defendant insurance carrier from the time plaintiff had to leave his job until he found another position some months later. At that time, plaintiff went to work for an insurance company as a collector and compensation payments were stopped. Plaintiff is still employed in his insurance job and is making considerably more money than he made as a truck driver.

Plaintiff bases his claim for disability on two theories. First, it is contended that the operation of the cement-mixer truck is a skilled occupation and that, since he cannot go back to working around cement and ever expect to recover from his skin condition, he is prevented from practicing his trade. Alternatively, counsel asserts that, if the cement truck operation is not regarded as a particular skill, plaintiff is nevertheless totally disabled because he cannot do any manual labor without becoming overheated, which irritates his skin condition with the consequent suffering therefrom and that the law will not require a man to go back to work if he can only do so by suffering pain and discomfort.

The trial judge concluded that the operation of the concrete-mixer truck itself was not a specialized type of employment; that the plaintiff's skill was only that of a truck driver, and that, by the time payments were stopped, plaintiff was able to work as a truck driver. He recognized the fact that plaintiff would experience discomfort from his ailment while driving a truck, but held that such discomfort was not, per se, disability. Plaintiff's demands for further weekly compensation were rejected, but plaintiff did receive a judgment for an unpaid medical bill of $523.65, plus 12% Penalty and attorney's fee of $200.

On appeal, the Court of Appeal, Third Circuit, reversed the judgment in both as pects. That court, while apparently agreeing that operating a cement truck was not a specialized trade or skill, held that the fact that plaintiff would perspire and itch and would be more or less continually in discomfort, if he attempted to engage in his customary occupation of truck driver and performed the manual labor usually attendant therewith, rendered him totally permanently disabled within the intendment of our statute (R.S. 23:1221) as no one is required to work in pain or discomfort. Also, the court found that the trial judge had...