Gros v. Employers Ins. of Wausau

• Decision Date: 13 October 1976
• Docket Number: No. 7902,7902
• Parties: Harold P. GROS, Sr. v. EMPLOYERS INSURANCE OF WAUSAU.
• Court: Court of Appeal of Louisiana — District of US

Page 986

338 So.2d 986

Harold P. GROS, Sr. v. EMPLOYERS INSURANCE OF WAUSAU.

No. 7902.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 13, 1976.

Lazard Levy, Marrero, for Harold P. Gros, Sr., plaintiff-appellant.

Louis M. Kiefer, Jr., New Orleans, and Ronald L. Ronzello, Metairie, for Employers Insurance of Wausau, defendants-appellees.

Before STOULIG, BOUTALL and MORIAL, JJ.

BOUTALL, Judge.

Plaintiff, Harold P. Gros, appeals a judgment rendered in favor of defendant-appellee, Employer's Insurance of Wausau, dismissing plaintiff's suit for workmen's compensation benefits.

Plaintiff injured the fingers of his right hand in an on the job accident, May 15, 1974. Surgery on one of the fingers occurred on May 16, 1974 with further treatment thereafter, but the long finger of the right hand had to be amputated at the proximal phalangeal joint in September, 1974. Plaintiff returned to work in October, but pain caused by a neuroma which was later excised, caused the plaintiff to seek further treatment and prevented his working. After this further medical treatment, the plaintiff returned to his same job as a laborer-mechanic in January, 1975 and has worked without interruption since then. During this entire period that plaintiff was unable to and did not work, workman's compensation benefits were paid him in the amount of $2,405.00 plus all medical expenses.

Plaintiff filed this suit in April of 1975 seeking an award of permanent and total disability based upon the impairment of the use of his right hand, and for penalties and attorney's fees because of defendant's refusal to pay further disability for the benefits. At the trial there were only two witnesses who testified, plaintiff and his work supervisor. No physicians testified, but the detailed reports of the physician who treated plaintiff for the entire period were stipulated into the record. From an adverse judgment, plaintiff filed this appeal.

There is no question but that plaintiff has suffered a disability for which he is entitled to workman's compensation benefits, the only question is the extent of that disability. The stipulated medical testimony is as follows:

'It is my opinion that this individual has limitation of motion of the aforementioned involved digits.

'It is my opinion that this individual has a 15% Loss of function of his index finger, 100% Loss of function of his long finger, 50% Loss of function of his ring finger and 50% Loss of function of his small finger. There is no loss of function of his thumb.

'It is my opinion that the plaintiff does not have Sudeck's atrophy of the involved hand.'

Based upon these findings, appellant argues to us that he is entitled to be declared totally and permanently disabled on the basis: 1.) That he cannot do his work; 2.) that he works in pain; and 3.) that he cannot compete in the labor market with workers of similar character.

The evidence discloses that the appellant has been doing essentially the same work since his discharge as he had been doing prior to that time, and that, because of the nature of the plant operation, he now does additional work of a different nature. Appellant testifies that he had some difficulty in performing all of the tasks involved in the same manner as he previously did, for example, climbing ladders, holding screw driver, paint brush or small tool, but we believe the evidence to fairly show that he does his job with only some inconvenience, i.e. he has to grip his tools in a different fashion or perhaps rely somewhat more on the use of his left hand. His supervisor testifies that appellant has done all of his job well and has made no complaint of inability to do so, nor has he noticed any....