Golden v. Starns-McConnell Lumber Corp.

• Decision Date: 01 February 1965
• Docket Number: STARNS-M,No. 6300,6300
• Citation: 172 So.2d 78
• Parties: Jessie GOLDEN v.cCONNELL LUMBER CORPORATION.
• Court: Court of Appeal of Louisiana — District of US

Page 78

172 So.2d 78

Jessie GOLDEN v.STARNS-McCONNELL LUMBER CORPORATION.

No. 6300.

Court of Appeal of Louisiana, First Circuit.

Feb. 1, 1965.

On Denial of Application for Rehearing March 8, 1965.

Writ Refused May 3, 1965.

John S. White, Jr., of Kennon, White & Odom, Baton Rouge, for appellant.

James D. Thomas, of Dodd, Hirsch, Barker, Avant & Wall, Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.^*

REID, Judge.

This is a suit for workmen's compensation brought by Jessie Golden against his employer Starns-McConnell Lumber Corporation as the result of an alleged accident which happened on October 3, 1960.Plaintiff was employed as a laborer, and on the day of the alleged accident plaintiff was aiding in the loading of logs when a log chain which was under tension broke and struck him in the face.In his pleadings plaintiff alleged that he was totally and permanently disabled because of an injury to his face and to his left knee, which injury occurred when he fell as a result of the blow on his face.He asked for workmen's compensation from date until paid, for a period of 400 weeks, at the rate of $35.00 per week with legal interest on each week's compensation from date until paid, less compensation already paid, and for medical and hospital expenses.In addition plaintiff asked for attorney's fees and penalties.At the trial of the casethe plaintiff plead orally and alternatively that he has an impairment of physical function as a result of some of this teeth being knocked out which would necessitate the rest of them being pulled, all resulting from this accident.

It was stipulated between the parties that on October 3, 1960 the accident involved in this suit did occur; that there was an injury to the face; and that compensation was paid from October 10, 1960 until June 24, 1961, or a total of 38 weeks, in the amount of $1330.00 (65% Of weekly wages of $54.00, or $35.00 per week).It was further stipulated that medical expenses in the amount of $579.05 had been paid.

Defendant denied plaintiff was disabled in any manner after the termination of compensation payments on June 24, 1961, and further denied the impairment of physical function could be urged in this case because the statutory provision allowing compensation benefits for the impairment of a physical function clearly states that it only arises when none of the other statutory benefits are applicable .The defendant conceded plaintiff was partially disabled in the first place, for which disability he received compensation, but urged that he could not recover double under the compensation act even in the event the Court could find as a matter of fact that he did have an impairment of a physical function.Of course, defendant denies that there was any impairment of a physical function.

On these issues the case was tried on November 20, 1961, and for written reasons assigned April 11, 1964, judgment was rendered and signed May 26, 1964.The Trial Judge rejected the claim of plaintiff for total and permanent disability resulting from injury to his knee and rendered judgment in favor of plaintiff and against defendant for workmen's compensation benefits of $35.00 per week for 50 weeks or the sum of $1750.00 for the impairment of a physical function for loss of teeth under the provisions of LSA-R.S. 23:1221(4)(p), plus the additional sum of $260.00 for medical expenses incurred by plaintiff in treatment by Dr. Wylie C. Barrow, together with legal interest from date of judicial demand until paid, and fixed medical expert fees of Drs. James F. Halley, Gerald Joseph, Edmond Faulkenberry, Wylie C. Barrow, Collins P. Lipscomb, William E. Smith, and James L. Coffee at $50.00 each to be taxed as cost.He ordered all costs to be paid by the defendant with the exception of the fees of Drs. Halley, Smith, Lipscomb and Faulkenberry, to be paid by plaintiff.From this judgment, both the plaintiff and defendant have entered appeals .

On this appeal plaintiff alleges the Trial Court was in error (1) in refusing to hold that the plaintiff was totally and permanently disabled as a result of the injury to his knee, (2) in refusing to assess penalties and attorney's fees against defendant, and (3) in assessing expert witnesses fees, and alternatively that plaintiff should have received $35.00 per week for 100 weeks rather than $35.00 for 50 weeks.

Defendant alleges the Trial Court erred in using the term that plaintiff was entitled to compensation 'for the impairment of a physical function' rather than 'the usefulness of a physical function is seriously permanently impaired.'In the alternative defendant urges the Trial Court's judgment was excessive.

With regard to the claim of plaintiff for compensation for total and permanent injury to his knee, the Trial Court held the plaintiff did not show any connection between the ailment of his knee and the accident.

The record discloses that on the afternoon of the accident plaintiff was working in a swampy area in the woods in water approximately at the level of his hips.Plaintiff testified that at the time of the accident he was standing clear of the log when something hit him.He stated he could not tell exactly what had happened but that the day after he was admitted to the hospital his knee was hurting.He admitted he did not tell any of the doctors or nurses or anyone working in the hospital about his knee but his testimony is most contradictory as to whether or not he told his wife and his son about his knee.He first said the only person he told while in the hospital was his cousin Reesa (who was not called as a witness) then he said he believed he told his wife and may have told his son, and then later said he told his cousin, his wife and his son that his knee was hurting while in the hospital.Plaintiff testified he went to see Dr. Thames of Hammond about his leg, but a stipulation entered into between counsel indicates that if Dr. Thames were present he would testify he had not treated plaintiff on October 3, 1960, or at any time subsequent thereto.The record shows plaintiff was treated by Dr. Collins P. Lipscomb of Ponchatoula at the time of the accident.Dr. Lipscomb stated that although he had only made a cursory examination, to the best of his knowledge the plaintiff made no complaint at that time about his leg but only complained of the injury to his face.This is further borne out by the medical report Dr. Lipscomb made in connection with the accident.Dr. Lipscomb further testified, however, that some time after plaintiff's discharge from the hospital he came to Dr. Lipscomb's office and complained of his knee and was instructed to go to Dr. Edmond Faulkenberry, the local doctor for his employer.Dr. Lipscomb further testified he had treated plaintiff sometime during August of 1961 but the treatment was unrelated to the accident and at that time plaintiff had not complained of his knee.

Dr. Faulkenberry testified that according to his office records the plaintiff came to his office on January 3, and January 7, 1961 complaining of pain in his left knee, right elbow and right hand, and he gave plaintiff medicine for arthritis but he had no independent recollection of the visit.This apparently was the first doctor to whom plaintiff complained about his knee.

Dr. Gerald Joseph, who performed an operation on plaintiff's face, testified he first saw plaintiff on October 3, 1960, the date of the accident, and stated that his examination of the plaintiff had been limited to the head and face.When he was asked by counsel if plaintiff complained of a knee injury he said his records indicated that when he saw plaintiff on December 8(two months after the accident)plaintiff was complaining of knee trouble and pain in his left shoulder, but that he had no independent recollection of the complaint.

Plaintiff was also examined by two orthopedic specialist, Dr. William E. Smith, and Dr. James F. Halley, of Baton Rouge.Dr. Smith examined plaintiff on June 6, 1961, approximately 8 months after the accident.In his report to plaintiff's counsel, dated June 20, 1961, he said:

'It is my impression following examination of this individual that he has an internal derangement of the left knee, most probably in the form of a torn medial meniscus.He also has synostosis of the proximal tibia and fibula which could be explained on the basis of old trauma or it is possibly congenital.'

Dr. Smith admitted, however, that the internal derangement he found in the left knee could have been caused by osteochondritis dissecans and that he found no objective evidence of trauma to the knee.

Plaintiff was examined by Dr. Halley on November 13, 1961, over a year after the accident.He testified that x-rays were taken on both knees (which was not done by Dr. Smith) and that these pictures showed evidence of acute boney injuries such as fractures, dislocations, or other acute boney abnormalities, and that incidental findings were noted of osteochondritis dissecans of the medical condyle of the femur.He further stated this could be caused by either degenerative change or trauma but since both of plaintiff's knees showed the same condition he felt plaintiff's condition was the result of a degenerate change.He stated he did not find any condition in the left knee which did not exist in the right knee, other than the suggestion of pain.

Plaintiff testified that three men were working with him, namely Earl Austin, Charlie Mitchell and Pat Fields.

Earl Austin testified when plaintiff fell his leg was jammed against a stump in a hole in water.He had seen plaintiff once in the hospital and once after he got home, at which latter time plaintiff's leg was swollen.On cross examination, however, Earl Austin, who had a 12th grade education, admitted he had given a statement on August 11, 1961, to Robert Hatcher, an insurance adjuster, which contained the following language:

'The only thing I saw...