Guidry v. New Amsterdam Casualty Co.

• Decision Date: 13 December 1956
• Docket Number: Civ. A. No. 4511.
• Citation: 148 F. Supp. 248
• Parties: Lena GUIDRY v. NEW AMSTERDAM CASUALTY COMPANY.
• Court: U.S. District Court — Eastern District of Louisiana

148 F. Supp. 248

Lena GUIDRY v. NEW AMSTERDAM CASUALTY COMPANY.

Civ. A. No. 4511.

United States District Court E. D. Louisiana, New Orleans Division.

December 13, 1956.

Rittenberg, Weinstein & Bronfin, Robert Weinstein and Henry Yoder, New Orleans, La., for plaintiff.

Henriques & Mayo, Harry M. Mayo, Jr., Stanley E. Loeb, New Orleans, La., for defendant.

CHRISTENBERRY, Chief Judge.

This is a proceeding under the Louisiana Workmen's Compensation Statute.¹

The plaintiff, Lena Guidry, alleged in her complaint that she was regularly employed by the Eye, Ear, Nose and Throat Hospital in New Orleans as a nurse's aide, and while so employed sustained injuries to her right arm in two accidents: the first when she slipped on a wet floor in the utility room of the hospital, and the second while she was assisting a patient who was recovering from anaesthetics administered during surgery, referred to in the testimony as reacting a patient, both injuries resulting in permanent and total disability. She further alleged that her work as a nurse's aide required her to react, move, bathe and lift patients, and that this was in the regular business of the employer. During the trial of the matter, evidence was adduced in an attempt to establish the hazardous nature of her work; that she was regularly required to be in proximity to oxygen and explosive anaesthetics; that she was required to operate a dumbwaiter, and that she was required to be around electrical machinery in the kitchen of the hospital, all as a part of her duties and the regular business of the hospital.

The business of operating a hospital is not found among those businesses designated as hazardous in the Workmen's Compensation Statute.

Nor does it appear that it has been so determined by agreement between the employee and employer in this case, or by prior submission and decision of any Court.

In applying the provisions of the statute to cases where employees are injured in performing services in a business not specifically designated as hazardous, the inquiry is always whether or not the duties of the injured employee required him to perform services of a hazardous nature incidental to his employment and directly associated with his employer's business. Brownfield v. Southern Amusement Co., Inc., 1940, 196 La. 73, 198 So. 656; Hammer v. Lazarone, La.App. 2 Cir., 1956, 87 So.2d 765. Where an employee performs services in both the hazardous and non-hazardous features of his employer's business and is injured while performing services in the latter category, he is entitled to compensation, provided the employee's connection with the hazardous features of the employer's business is a major or material portion of his duties, and not merely occasional. Byas v. Hotel Bentley, Inc., 1925, 157 La. 1030, 103 So. 303; Brownfield v. Southern Amusement Co., Inc., supra.

The first feature of the employee's services which it is contended by the plaintiff rendered a major or material portion of her occupation "hazardous" was her proximity to oxygen and explosive anaesthetics.

It is virtually undisputed that all seven of the operating rooms of the hospital are located on the third floor, the same floor as the employee's duty area. Generally the building consists of an original structure and a recent addition of about the same size and area. The main hallway of the third floor of the original structure connects with the main hallway of the addition, and separating the old and new structures is a firewall. A double set of swinging doors is situated in this hallway where the firewall runs through the building. The original half of the third floor was used as a general ward for patients. The new half of that floor has seven operating rooms adjoining the main hallway, and each operating room is entered by a double set of swinging doors. In addition, there is another double set of swinging doors in the main hallway separating the area of the operating rooms from the remainder of that floor. Mrs. Guidry worked generally among the patients in the ward area under the supervision of a nurse in charge of the ward whose desk was in that area. A dumbwaiter and passenger elevator were located in the main hallway between the firewall and the doors entering into the operating area. In the operating rooms were used anaesthetics, particularly, cyclo propane, ether, nitrous oxide and ethylene, some of which are explosive. Oxygen, an explosive, was also used in the hospital.

The plaintiff testified that she was required occasionally to go into the hallway on which the operating rooms open in order to bring certain supplies assigned to the patient during surgery, and in an emergency she assisted in bringing the patient into the operating room a few times. There was no testimony that she went into the operating rooms during surgery, but she states that she was sometimes required to wait there as long as 15 minutes in order to give the instruments to the proper person or to receive them. She testified that at all times when she was in the operating hallway the doors of the operating rooms were open, and further that if she was wearing a nylon uniform at the time she would change to a cotton uniform in compliance with a hospital safety regulation designed to prevent sparks in the operating rooms. According to her she never wore a face mask.

On the other hand, the Chief Nurse of the hospital testified that the plaintiff had no duties in the operating room during surgery, although she may have been sent on an errand, in which case she would not have entered the operating room. In addition, she stated that the doors of the operating rooms were closed during surgery. The nurse in charge of the third floor ward, supervisor of the plaintiff, testified that the duties of a nurse's aide only required the plaintiff to go into the operating hallway about once a week, and never into the operating rooms. She remembered the plaintiff wearing only cotton uniforms, and...