Jackson v. Georgia Cas. and Sur. Co.

• Decision Date: 23 September 1987
• Docket Number: No. 19,011-CA,19,011-CA
• Citation: Jackson v. Georgia Cas. and Sur. Co., 513 So.2d 530 (La. App. 1987)
• Parties: R.T. JACKSON, Plaintiff-Appellee, v. GEORGIA CASUALTY AND SURETY COMPANY and Robert Lee McMillian, Jr., Defendant- Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 530

513 So.2d 530

R.T. JACKSON, Plaintiff-Appellee, v.GEORGIA CASUALTY AND SURETY COMPANY and Robert Lee McMillian, Jr., Defendant- Appellants.

No. 19,011-CA.

Court of Appeal of Louisiana Second Circuit.

Sept. 23, 1987.

Writ Denied Nov. 30, 1987.

D. Scott Brown, Mansfield, for defendant-appellants, Georgia Cas. and Sur. Co. and Robert Lee McMillian, Jr.

Watson, Murchison, Crews, Arthur & Corkern by Ronald E. Corkern, Jr., Natchitoches, for plaintiff-appellee, R.T. Jackson.

Before SEXTON, NORRIS and LINDSAY, JJ.

SEXTON, Judge.

Plaintiff brought suit for worker's compensation benefits.The trial court awarded him total permanent disability benefits, penalties and attorney's fees for arbitrary and capricious actions on the part of the defendant-insurer, reimbursement for medical travel expenses, and by amended judgment, awarded defendants a credit for social security disability benefits received by plaintiff effective from the date of judgment.We amend the trial court judgment and affirm as amended.

FACTS

Plaintiff in this action is R.T. Jackson, a 53-year old logging and pulpwood employee residing in DeSoto Parish.Defendant-appellants are plaintiff's employer, Robert Lee McMillian, Jr., d/b/a McMillian Logging and Pulpwood Contractor, and its worker's compensation insurer, Georgia Casualty and Surety Company.

Plaintiff worked for McMillian Logging and Pulpwood Contractor for a period of fifteen years.In December of 1982, he was injured while cutting down a tree.It somehow became entwined with a smaller tree and swung around and broke plaintiff's left leg in three places.

After the incident, Mr. Jackson was taken to Dr. Taylor in Mansfield, Louisiana.He was x-rayed and the decision was made to take him to Highland Hospital in Shreveport, Louisiana.Mr. Jackson remained in Highland Hospital for two weeks during which time surgery was performed on his left leg and ankle by Dr. Gordon Mead.He remained in a cast for a period of nine months and continued under the care and supervision of Dr. Mead until his discharge on May 24, 1985.After his discharge, Mr. Jackson attempted to return to work at a different logging company.However, he experienced swelling of his ankle and was unable to work past noon of the first day.

As a result, the plaintiff visited an orthopedist, Dr. John Sandifer, in Natchitoches, Louisiana, on July 5 and July 15, 1985.Dr. Sandifer responded to the plaintiff's complaints of pain and swelling with an anti-inflammatory agent and fitted plaintiff with a small brace.Dr. Sandifer stated that in his opinion Mr. Jackson would have difficulty performing the tasks necessary to his occupation.

At the request of defendant-appellant, Georgia Casualty, plaintiff again saw Dr. Gordon Mead on October 4, 1985.At that time, Dr. Mead reached the same conclusions relative to plaintiff's condition as he had in the prior examination which had resulted in the release of plaintiff.

Plaintiff received benefits of $166.67 per week from the time of the injury through June 1, 1983.After this time, however, he received benefits of $142.81 per week until April 24, 1984, when his payments were terminated.

Plaintiff filed suit seeking (1) benefits and medical expenses accruing subsequent to the April 24th termination date, as well as any benefits due before this time; (2) travel expenses incurred from the time of the injury to the present; and (3) penalties and attorney's fees for the alleged arbitrary and capricious failure of Georgia Casualty to pay travel expenses and the full amount of benefits due, as well as the premature termination of benefits.

The trial court rendered judgment in favor of plaintiff, Mr. Jackson, finding that he was permanently and totally disabled.It was ordered that benefits of $166.67 per week be paid from December 15, 1982 through the period of disability subject to a credit for amounts paid.The trial judge additionally awarded medical expenses as well as travel expenses.Finally, after a determination that the defendants were arbitrary and capricious in reducing and discontinuing benefits and in failing to issue travel expenses, penalties and attorney's fees were awarded.

By amended judgment, the trial court ordered that defendants be entitled to a credit for social security benefits received by plaintiff.This credit was to run prospectively "from the date of the execution of [the] amended judgment."^*

The appellants assign as error the trial court's finding that Mr. Jackson is permanently and totally disabled and its finding of arbitrariness on the part of Georgia Casualty and Surety Company.Additionally, appellants assign as error the ruling that defendants were entitled to a credit for social security benefits received by plaintiff from the date of finality of the judgment, as opposed to the date of judicial demand.

DISABILITY

Defendant-appellant contends that the trial court erred in its finding that Mr. Jackson was totally and permanently disabled.We disagree.

The plaintiff in a worker's compensation case bears the burden of proving his claim by a preponderance of the evidence.LaPrarie v. Liberty Mutual Insurance Company, 463 So.2d 908(La.App. 2d Cir.1985), Attaway v. Farley's Glass Company, Inc., 430 So.2d 705(La.App. 2d Cir.1983).

The question of disability is determined with reference to the totality of the evidence, including both lay and medical testimony.Henson v. Handee Corporation, 421 So.2d 1134(La.App. 2d Cir.1982).

On appellate review, the trial court's factual findings concerning work-related disability should be given great weight and should not be disturbed where the evidence before the trier of fact supports a reasonable factual basis for the trial court's finding.Culp v. Belden Corporation, 432 So.2d 847(La.1983);Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300(La.1979).

A finding of permanent and total disability under the worker's compensation law as it read at the time of plaintiff's injury mandates a finding that an employee is unable to "engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged."LSA-R.S. 23:1221(2).

The jurisprudence of Louisiana employed the "odd lot" doctrine as a guiding theory in the determination of permanent total disability at the time of this accident.Oster v. Wetzel Printing, Inc., 390 So.2d 1318(La.1980).Professors Malone and Johnson in their treatise on worker's compensation define the "odd lot" theory.

Simply stated, this doctrine states that a claimant may be considered totally disabled if, after his injury, he's considered an "odd lot" in the competitive labor market, i.e., that he may be capable of holding various jobs from time to time, but that the kind of work he may perform is so limited in quality, dependability or quantity that a reasonably stable market for that work does not exist.

13 W. Malone, A. Johnson, Civil Law Treatise, § 276, p. 621(1980).

A plaintiff must show that his physical impairment, mental capacity, education, training, age, availability of employment in his area and any other relevant factor preclude him from performing the substantial and material part of some gainful work or occupation with reasonable continuity.Oster v. Wetzel Printing, Inc., supra;Henson v. Handee Corporation, supra.

Additionally, if a worker's pain appreciably limits the type of work available to him and greatly diminishes his ability to compete in the labor market, he may be treated as an odd lot worker and may be entitled to total disability benefits.Calogero v. City of New Orleans, 397 So.2d 1252(La.1980);LeBaron v. Louisiana Pacific Corporation, 434 So.2d 496(La.App. 2d Cir.1983), writ denied440 So.2d 758(La.1983).

It is the opinion of this court that Mr. Jackson falls within the "odd lot" category under the worker's compensation law as it existed at the time of the accident.

The medical testimony taken in its entirety reveals that Mr. Jackson in fact sustained serious injuries to his left leg and ankle.Mr. Jackson was diagnosed by Dr. Gordon Mead, an orthopedic surgeon, as experiencing a twenty percent permanent partial disability on March 8, 1984, but he opined, however, that Mr. Jackson should be able to return to work doing essentially the same thing as he did before the accident.A follow-up visit in May of 1984 revealed, in the opinion of Dr. Mead, the same disability, although Mr. Jackson continued to complain of pain.

The final visit by Mr. Jackson on September 24, 1985, upon the request of defendants' counsel, resulted in the same conclusions.Dr. Mead testified that x-rays revealed no degenerative arthritis.Dr. Mead, however, stated that pain was not inconsistent with the injury received by Mr. Jackson in light of the swelling of his ankle.

The testimony of Dr. Sandifer, an orthopedic surgeon who examined and x-rayed Mr. Jackson's leg in July of 1985, is in direct contrast with that of Dr. Mead.Dr. Sandifer's examination revealed probable degenerative arthritis which would account for the pain and swelling.He prescribed an anti-inflammatory drug and an ankle brace and was of the opinion that Mr. Jackson would have trouble walking on uneven ground and standing for long periods of time.He therefore thought the plaintiff would have difficulty engaging in his occupation.He additionally reasoned that the original diagnosis by Dr. Mead may have been correct but that there had been changes which at the time of his examination rendered Dr. Mead's diagnosis inappropriate.

Clearly, the conclusions reached by both physicians were inconsistent.The trial court may, however, accept or reject an opinion expressed by a medical expert depending upon what his impressions are regarding qualifications, credibility and testimony.Rodriquez v. American International Insurance Company, 394 So.2d 621(La.App. 3d Cir.1981).The trial judge in this case weighed the...