Jackson v. Phoenix Ins. Co.
| Citation | 252 So.2d 511 |
| Decision Date | 15 July 1971 |
| Docket Number | No. 4433,4433 |
| Parties | Donald A. JACKSON v. The PHOENIX INSURANCE COMPANY. |
| Court | Court of Appeal of Louisiana (US) |
John J. Cummings, III, Robert G. Heller, Sidney F. Rothschild and Edwin A. Stoutz, Jr., New Orleans, for plaintiff-appellant.
Porteous, Teledano, Hainkel & Johnson, James L. Donovan, John J. McGuckin, Jr., New Orleans, for defendant-appellee.
Before SAMUEL, GULOTTA and STOULIG, JJ.
This is an appeal by a claimant, Donald A. Jackson, from a district court judgment awarding workmen's compensation benefits of $35 per week for 100 weeks, together with medical expenses, statutory penalties of 12 percent, and attorney's fees of $600, subject to a credit of $420 previously paid. Appellant maintains that he is totally and permanently disabled and, accordingly, is entitled to 400 weeks. No answer to the appeal was filed by the defendant, The Phoenix Insurance Company, compensation carrier, and therefore it has acquiesced in the trial court's award.
In its responsive pleadings, the defendant admitted that the plaintiff was injured during the course and in the scope of his employment, which was hazardous in nature. There remains for consideration, however, the nature, extent and disabling effects of the employee's injury.
Uniquely, the expert medical testimony adduced on behalf of the respective litigants is confirmatory rather than contradictory relative to plaintiff's injuries. The dispute arises over its interpretation in relation to the employee's ability to perform the customary duties of his occupation as a carpenter-cabinetmaker.
The evidence reflects that on April 28, 1966, plaintiff was a passenger in his employer's truck when it became involved in an accident, as a result of which he sustained the following injuries: a bilateral basal skull fracture, resulting in a transitory facial paralysis, lasting one week; a permanent residual of tearing of the left eye, attributable to facial nerve injury, and, occasioned only by eating; a brain concussion; a comminuted fracture of the right clavicle producing a 5 percent permanent residual loss of use of the right shoulder; lacerations of the scalp; a perforated left ear drum, causing a progressive loss of hearing, estimated to be 45 percent on the date of trial, and further aggravated by tinnitus (a ringing or buzzing sound of the ear). Mr. Jackson also suffered a stabilized loss of 17 percent of his hearing in the right ear.
As a result of these injuries complainant was confined to Mercy Hospital for 21 days. In 52 office visits extending from March 3, 1967, through March 10, 1970, Mr. Jackson was treated for his left eye and loss of hearing by Dr. Frank S. Norman, expert otolaryngologist, at which time he was considered to have received the maximum benefits of medical science. In addition, the plaintiff received medical attention from Dr. Christian Haindel, an otolaryngologist, on eight occasions from May 25 through September 23, 1966. He was also examined by Dr. Robert Azar, ophthalmologist; Dr. Richard Levy, neurologist; and Dr. Raymond Kitziger, orthopedist whose reports were stipulated into evidence in lieu of their testimony.
Although the trial court did not render findings of fact or reasons for judgment, it is obvious from the nature of its award ($35 for 100 weeks) that the employee was being compensated for the serious permanent impairment of a physical function as authorized under LSA-R.S. 23:1221(4)(p). If we determine that the injuries to Mr. Jackson do not prevent him from performing the usual and customary duties of his occupation free of pain and without serious impairment of his capacity, then he is entitled to compensation for the loss of function of a member as granted by the trial court. However, if we conclude that the employee because of a residual incapacity can no longer perform the duties of a carpenter, then he is entitled to disability benefits for the duration of such incapacity.
In reviewing the expert testimony we note a lack of specific medical expression as to the ability of the employee to perform all of the salient functions of a carpenter-cabinetmaker. More specifically, Dr. Azar, in his ophthalmological report, concluded that the employee is 'fully Visually qualified to perform whatever tasks he was engaged in prior to this alleged injury.' (Emphasis added.) He noted the chief complaint, as of August 29, 1969, to be 'headaches.' Visual deficiency is not one of the alleged causes of disability; however headaches are.
The neurological findings of Dr. Levy confirm partial deafness in the left ear and the tearing of the left eye due to a facial nerve injury. He further states: 'I see no reason why this man cannot continue in his current occupation.' It should be noted that this doctor lists plaintiff's job as a 'construction supervisor,' and his conclusion about the continuance of employment must be related to the duties of this particular work, as opposed to those of a carpenter-cabinetmaker. His reort also reflects complaints of generalized headaches.
Dr. Norman, an otolaryngologist, to whom the plaintiff was referred by Dr. Levy, concerns himself with the loss of hearing and the tearing of the eye. In his testimony, he makes no reference to the employee's ability to return to work. He, too, acknowledged Mr. Jackson's complaint of headaches, the constancy of which he could not explain except to attribute it to the bizarre nature of the nerve injury.
Another otolaryngologist, Dr. Haindel, who examined plaintiff shortly after the accident, testified to the transitory nature of the facial paralysis and the loss of hearing. He, too, referred to the plaintiff's complaint of headaches, the cause of which he assigned to the blow on his head and was of the further opinion that close proximity to buzz saws or high frequency drills would aggravate the ringing in the ear. This witness testified that the ear condition would not cause pain nor would it be affected by height. In this instance, too, the medical witness passed no judgment on the ability of the employee to perform the duties of a carpenter.
The last medical evidence was a stipulated report of Dr. Kitziger, which reflects a 5 percent permanent residual disability of the right shoulder and the discharge of the employee to return to work on May 12, 1966. This report was rendered on a printed data sheet and is lacking in detailed information, particularly as it relates to the type of employment and the resumption of the duties of employment.
Thus, from the foregoing resume of testimony it must be concluded that there is no medical expression as to the ability of the employee to perform the significant duties of acarpenter-cabinetmaker. While we are mindful of the fact that the jurisprudence of this State, expressed in the case of Lee v. Royal Indemnity Company, 149 So.2d 606 (La.App.1st Cir. 1963), enjoins us from considering lay testimony in determining the disability of an employee, where no conflict exists in the expert medical evidence, we are of the opinion that the case of Carpenter v. Employers Mut. Liability Ins. Co. of Wis., 178 So.2d 486 (La.App.1st Cir. 1965), writ refused 248 La. 444, 179 So.2d 431, permits a consideration of such testimony when it does not contradict the medical testimony, where, as in the instant matter, the medical evidence is inconclusive.
Testifying as lay witnesses were the plaintiff, his wife, and two employees. The gist of Mr. Jackson's testimony was to the effect that he suffered constantly from headaches, requiring up to twelve aspirins a day for relief; that climbing made him dizzy; that he was unable to nail freehand because of his shoulder injury; and that he could not do sustained work for more than two hours before becoming exhausted and suffering with headaches.
Mrs. Jackson substantiated that her husband's rest at night was frequently disturbed because of headaches which he complained of constantly, and that after the accident he did not work regularly, but oftentimes remained at home.
His two employees, Mason Hill, Jr., and Alfredo Sabunge, testified that on occasions plaintiff worked for an hour or two and then complained of dizziness and headaches; that frequently he would leave the job and return home, and, in some instances, did not report at all; and that he was unable to assist them in the hanging of Sheetrock.
In determining the extent of Mr. Jackson's...
To continue reading
Request your trial