Jones v. Brewton

• Decision Date: 23 May 1960
• Docket Number: No. 9238,9238
• Citation: 121 So.2d 600
• Parties: Elmer A. JONES, Plaintiff-Appellant, v. L. L. BREWTON et al., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 600

121 So.2d 600

Elmer A. JONES, Plaintiff-Appellant, v. L. L. BREWTON et al., Defendant-Appellee.

No. 9238.

Court of Appeal of Louisiana, Second Circuit.

May 23, 1960.

Rehearing Denied June 22, 1960.

Watson, Williams & Brittain, Natchitoches, for appellant.

Wright & Hamaker, Winnfield, for appellee.

HARDY, Judge.

Plaintiff instituted this suit for compensation as for permanent total disability and an allowance for future medical expenses. From a judgment awarding him compensation as for partial disability at the rate of $10.00 per week for a total period of three hundred weeks, the plaintiff appealed.

There is no question as to the occurrence of the accident and the nature of the resulting injury. The sole issue tendered relates to plaintiff's contention that the judgment of the trial court is manifestly erroneous in failing to award compensation as for total permanent disability.

Plaintiff, a forty-four year old manual laborer, was injured by a falling tree while engaged in the operations of cutting and loading of pulpwood in the employ of defendant on March 4, 1957. Immediately following the accident plaintiff was removed to the Mosley Clinic at Winnfield, where he was given emergency treatment. On March 6, 1957, plaintiff was examined by Dr. Alfons R. Altenberg of Monroe, a specialist in orthopedic surgery, who diagnosed the injury as a comminuted intertrochanteric fracture of the left hip, and performed an open reduction of the fracture, comprehending the insertion of a Jewett type nail plate held by four screws. Plaintiff continued to be totally disabled and compensation was paid for a period of one hundred three (103) weeks, after which time it was discontinued on the ground that plaintiff had fully recovered and was able to return to his employment. In or about the month of February or March, 1959, plaintiff procured employment as a log peeler at a wage substantially less than the amount which he was earning at the time of the accidental injury. This work did not require the strenuous physical exertion attendant upon logging operations.

The medical testimony on behalf of plaintiff was tendered by Drs. W. H. Pierson and James V. Kaufman, general practitioners, and Dr. Ford J. Macpherson, a specialist in orthopedic surgery. The record contains on behalf of defendant the testimony of Dr. McElwee, a general practitioner; Dr. Carson R. Reed, Jr., a specialist in orthopedic surgery, and the written reports of Dr. Altenberg.

The written opinion of the district judge discloses his conclusion that there was no medical evidence of pain, and that the percentages of disability as opined by Dr. Macpherson and Dr. Altenberg were not substantial. The opinion correctly stated the important factor of the case as being the question as to whether plaintiff can work without undue pain.

After thorough consideration of the record we are of the opinion that the factual findings of the district judge as to pain and disability are erroneous. This finding necessitates a somewhat detailed discussion of the medical testimony.

We disregard as without weight or value the testimony of Dr. McElwee, by reason of the fact that his last examination of plaintiff was made less than two months following the accident and he did not attempt to express any opinion as to the degree of disability from which plaintiff suffered, or the extent of his recovery. The last of Dr. Altenberg's several written reports on plaintiff's condition was given following examination on November 5, 1957, and the doctor expressed the opinion that plaintiff had suffered a permanent partial disability of his leg estimated at ten per cent; that although from an 'orthopedic standpoint' the patient could be discharged, he still had a mild weakness in his leg, which would always have an occasional soreness.

The deposition of Dr. Reed established the date of his last examination of plaintiff as being July 15, 1958, at which time the fracture was not healed, and it was his opinion that--'* * * further surgery will be necessary. Patient may continue to work at his regular occupation. Probably another six months will be required for complete bony union to take place' On cross examination the witness admitted that he did not think it advisable for plaintiff to undertake heavy lifting.

In support of plaintiff's claim of permanent total disability it is pointed out that Dr. Pierson made an examination on October 1, 1959, at which time he estimated plaintiff's disability as being twenty-five per cent less than his normal capacity; that Dr. Kaufman, who examined plaintiff prior to trial, but did not give the exact date thereof, estimated plaintiff's disability at seventy per cent, as far as woods work was...