Knispel v. Gulf States Utilities Co., Inc.

• Citation: 141 So. 9,174 La. 401
• Decision Date: 29 February 1932
• Docket Number: 31552
• Court: Supreme Court of Louisiana
• Parties: KNISPEL v. GULF STATES UTILITIES CO., Inc

141 So. 9

174 La. 401

KNISPEL v. GULF STATES UTILITIES CO., Inc

No. 31552

Supreme Court of Louisiana

February 29, 1932

Rehearing Denied March 30, 1932

Judgment of the Court of Appeal set aside, and judgment of the District Court reinstated.

Cline Plauche & Thompson, of Lake Charles, for plaintiff.

Pujo Bell & Hardin, of Lake Charles, and Thatcher, Browne, Porteous & Myers, of Shreveport, for defendant.

OVERTON J.

OPINION

OVERTON, J.

Plaintiff was in the employ of defendant as a lineman. On May 22, 1929, while engaged within the scope of his employment, in the alteration of a high voltage electricity transmission line, he fell from a pole. As a result of his fall he received severe injury to his right eye, his left arm and his pelvis. He alleged that these injuries have incapacitated him permanently to perform work of any reasonable character. The injuries to his arm and his pelvis have passed out of the case, leaving the injury to his eye for consideration. When the accident occurred, plaintiff was earning approximately $ 62.50 a week. In the event of his recovery in these proceedings, this wage would entitle him to the maximum compensation, under the law, of $ 20 a week.

Defendant does not question that plaintiff is entitled to some compensation, but urges that, at best, it should not exceed $ 20 a week for 100 weeks, since the injury to his eye falls within subsection (d), par. 16, of section 8 of Act No. 242 of 1928, p. 357, which, for injuries falling under it, provides for such compensation as is reasonable and as is in proportion to the compensation specifically provided in the cases of specific disability, not to exceed 65 per centum of wages during one hundred weeks, or, if the injury does not so fall, then that it falls within subsection (d), par. 9, of section 8 of the act, which provides that for the loss of an eye compensation shall be allowed for 65 per centum of wages during one hundred weeks. Defendant also contends that, in the event it should be held that the injury falls within subsection (d), par. 16, then, in the proper application of the law, the maximum compensation there allowed should be reduced to 15 per centum disability, or fifteen weeks compensation, because the injured eye is affected only fifteen per centum of its normal vision when both eyes are used.

On the other hand, plaintiff urges in his brief that, if he has established the allegations of his petition, he is entitled to compensation under subsection (b) of section 8 of the act of 1928, which allows as compensation for injury producing permanent total disability to do work of any reasonable character, 65 per centum of wages during the period of disability, not, however, beyond four hundred weeks. He also urges that, should the court find that his disability, though total is only temporary, then he is entitled to compensation under subsection (a) of section 8 of the act, which provides the same compensation, during the period of disability, as does subsection (b), not to exceed, however, three hundred weeks.

The district court rendered judgment for plaintiff, allowing him compensation, under subsection (b) of section 8, in the sum of $ 20 a week for four hundred weeks, as for permanent total disability, amounting to $ 8,000, payable in weekly installments of $ 20, beginning on May 22, 1929, with 5 per centum per annum interest on installments from maturity, subject to credits for weekly installments of $ 20 a week, paid for the weeks beginning May 22, 1929, and ending July 19, 1930. The Court of Appeal entertained a view of the case in conflict with that of the district court, and found that the right to compensation fell under subsection (d), par. 16, of the act of 1928, and accordingly amended the judgment of the district court, so as to reduce the period of time during which compensation was allowed from 400 weeks to 100 weeks, allowing the same credits as the district court allowed, and, as thus amended, affirmed the judgment.

The defect in plaintiff's vision is caused by paresis of the superior oblique muscle of the right eye, brought about as the direct result of his fall from the pole supporting the transmission wires. This injury to the eye causes plaintiff to see double when his head is in certain positions, that is, to see two objects where there is only one -- a condition known as diplopia. The vision in either eye, when the other is closed, is 20-20, which is normal. However, with both eyes open, when the first examination was made, which was in November, 1929, the injury to the right eye caused a defect in visibility in that eye of 20 per cent., and when the second examination was made, some eleven months later, this defect in visibility had fallen to 15 per cent., showing an improvement of 5 per cent. during that period.

With the injured eye completely closed by sewing the lid down -- which seems to be an approved method -- or should plaintiff wear a piece of green cloth over the injured eye, or a dark or a frosted glass over it, so as to completely obstruct vision out of it, any one of these methods will enable him to see as well as any one-eyed man. If plaintiff should lose his uninjured eye, the injured eye could be used then with the same effect as was the uninjured eye, for with either eye closed plaintiff is able to see as normally as a one-eyed man, out of the injured or the uninjured eye, without reference as to which is left open. The double vision may be reduced by the use of a prism glass over the defective eye, but by such method it cannot be entirely eliminated.

The effect of the double vision is totally to disable plaintiff from pursuing his occupation as a lineman, or any occupation involving, as necessary to safety, accurate estimates of distances and levels. He is incapacitated to follow any occupation requiring the use of cutting instruments, or requiring the driving of nails, or the doing of work from a scaffold. He is therefore incapacitated to do the work of a carpenter or any work similar to his occupation as a lineman.

In addition to the work of a lineman, plaintiff is trained in structural iron work and in radio work, but these lines, it is obvious from the foregoing, he is incapacitated to pursue. The record shows no specific occupations that he is capacitated to follow, when he uses both eyes, except those of porter and night watchman.

Subsection (d), par. 16, of section 8 of the Act of 1928, under which the Court of Appeal classified plaintiff's injury, reads as follows:

"In cases not falling within any of the provisions already made where the employee is seriously permanently disfigured about the face or head or where the usefulness of a physical function is seriously permanently impaired, the Court may allow such compensation as is reasonable and as is in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks."

The Court of Appeal was in error in fixing plaintiff's compensation under this paragraph. The injury suffered by plaintiff is an injury...