Jacks v. Banister Pipelines America, 81-C-2296

CourtSupreme Court of Louisiana
Writing for the CourtDENNIS; MARCUS; MARCUS
Citation418 So.2d 524
Docket NumberNo. 81-C-2296,81-C-2296
Decision Date21 June 1982

Page 524

418 So.2d 524
Leonard B. JACKS
No. 81-C-2296.
Supreme Court of Louisiana.
June 21, 1982.
Rehearing Denied Sept. 3, 1982.

Page 525

Roy Maughan, and Elliott W. Atkinson, Maughan, Atkinson & Martin, Ltd., Baton Rouge, for plaintiff-applicant.

Page 526

L. Michael Cooper, Durrett, Hardin, Hunter, Dameron & Frithcie, Baton Rouge, for defendant-respondent.

DENNIS, Justice.

Following the Workers' Compensation statute's provisions for total and partial disability, there is a schedule of specific losses accompanied by a provision for the number of weeks of compensation payable in each instance. In this case we are called upon to determine the proper mode of compensation when an employee, who suffered the loss of an eye, qualifies for both a specific loss award and a permanent partial disability judgment. The trial and appellate courts held, in effect, that the employee is entitled only to compensation for his partial disability. We modify this decision. Although the employee may not recover compensation for both his specific loss and his permanent partial disability, he is entitled to the more favorable of the two remedies. In a case in which it cannot be predicted which remedy will be more favorable, the employee should be awarded compensation for his specific loss as a minimum with reservation of his right to recover under the partial disability provision in the event it proves to be the more favorable.

The plaintiff, Leonard B. Jacks, was employed by Banister Pipelines America as an equipment mechanic and utility welder. The record reveals that on January 16, 1979, Jacks suffered an injury to his right eye which resulted in a permanent loss of vision in that eye. He missed three weeks of work for which he received temporary total disability benefits. 1 Jacks returned to work and has continued to work as a pipeline mechanic and utility welder for Banister and other employers at the same or greater wages than he was being paid at the time of the accident.

On November 20, 1979, the plaintiff sent a written demand for further compensation to the Insurance Company of North America (INA), the employer's compensation insurer. INA notified plaintiff of its intention to pay schedule benefits and commenced payment of those benefits on January 22, 1980.

Suit was filed on behalf of plaintiff on November 23, 1979, requesting total and permanent disability benefits, penalties, and attorney's fees. The trial court made the following findings of fact:

"The Court finds as a fact that Mr. Jacks is unable to perform certain duties required by his job as well as he could before the accident. Those duties include climbing, walking on irregular work surfaces, working or driving at night and operating equipment. Further, Mr. Jacks is no longer able to perform precision welding, to catch tools thrown by his job helper, or to read numbers on certain parts. As a result of these handicaps, the Court finds that Mr. Jacks is unable to compete with able-bodied men in the same job market for which he was previously suited and thus is permanently, partially disabled."

The trial court ordered defendants to pay weekly compensation benefits for permanent partial disability under La.R.S. 23:1221(3) subject to a credit for compensation previously paid. 2 The judgment, however, did not specify whether the previous payments should be deducted from future compensation on a dollar-for-dollar or a

Page 527

week-for-week basis. Penalties and attorney's fees were denied. Both plaintiff and defendants appealed. The court of appeal affirmed the trial court's judgment. 396 So.2d 604 (La.App. 1st Cir. 1981). This court granted certiorari to review the correctness of that decision.

In his application to this court, plaintiff contends that the courts below erred in not allowing recovery for a schedule loss under La.R.S. 23:1221(4) in addition to the award of benefits for partial disability under La.R.S. 23:1221(3). Plaintiff's loss of sight in one eye would entitle him to full compensation for one hundred weeks under the schedule of specific losses, La.R.S. 23:1221(4)(i). Because he received only 72 weeks of compensation, plaintiff contends that he is entitled to twenty-eight more weeks of compensation. Additionally, he contends that he is entitled to 450 weeks of compensation under La.R.S. 23:1221(3) for permanent partial disability with no credit applied against those payments for the 100 weeks of benefits received under the schedule of specific losses. In the alternative, he argues that if a credit is allowed, it should be on a week-for-week rather than a dollar-for-dollar basis.

La.R.S. 23:1221 provides in relevant part:

Compensation shall be paid under this Chapter in accordance with the following schedule of payments:

* * *

* * *

(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, ... during the period of disability, but not beyond a maximum of ... four hundred fifty weeks for such partial disability ...

(4) In the following cases, the compensation shall be as follows:

* * *

* * *

(i) For the loss of an eye, sixty-six and two-thirds per centum of wages during one hundred weeks.

The statute does not explicate the relationship between the specific loss schedule and the total and partial disability provisions. In a case in which a specific loss also results in total or partial disability for the worker, the act does not give either remedy priority or state whether the remedies are cumulative or optional. The interaction of judicial opinions and legislative amendments over the lifetime of the act presents a checkered pattern of interpretations on the question of disability vis a vis schedule loss provisions. W. Malone & H. Johnson, Workers' Compensation in 13 Louisiana Civil Law Treatise, § 252 (1980); Comment, The Conflict Between the Disability and Specific Injury Clauses of the Louisiana Workmen's Compensation Act, 11 Tul.L.Rev. 86 (1936).

The prevailing interpretation is that an employee may not recover compensation both for a total or partial disability and for a specific loss but he may recover for one or the other, the employee being permitted recovery under whichever provision affords him greater compensation. 3 This rule is a workable one in cases which present a clearcut choice between remedies affording

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fixed amounts of compensation. In the present case, however, in which the employee continued to earn wages at the same rate despite his partial disability, it cannot be predicted which provision will afford him greater compensation. Consequently, we must reexamine the statute, its history and its underlying policies to extract the precept to be applied in the present case.

Historical evidence indicates that the...

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