LaCoste v. J. Ray McDermott & Co.

• Citation: 185 So.2d 553
• Decision Date: 04 April 1966
• Docket Number: No. 6609,6609
• Parties: Murphy LaCOSTE et al. v. J. RAY McDERMOTT & CO., Inc., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 553

185 So.2d 553

Murphy LaCOSTE et al. v. J. RAY McDERMOTT & CO., Inc., et al.

No. 6609.

Court of Appeal of Louisiana, First Circuit.

April 4, 1966.

Rehearing Denied May 9, 1966.

Writ Granted June 22, 1966.

N. Cleburne Dalton, of Russell, Millican & Waters, Baton Rouge, for appellant.

John E. Coleman, Jr., of Aycock, Horne, Caldwell & Coleman, Franklin, for appellee.

Before ELLIS, LOTTINGER, LANDRY, REID and BAILES, JJ.

LANDRY, Judge.

This is a cumulation of actions by three brothers, Murphy, Barton and Peter LaCoste seeking an adjudiciation of their entitlement to workmen's compensation benefits for total and permanent disability allegedly resulting from the occupational disease known as silicosis, reputedly contracted in the performance of their duties as sandblasters and painters in the employ of defendant, J. Ray McDermott & Co., Inc., the insured of defendant, The Travelers Insurance Company.

Defendants filed dilatory exceptions grounded upon an asserted improper cumulation of actions which exceptions were adversely ruled upon by the trial court under authority of LSA-C.C.P. Articles 464 official Revision Comment (c), and 926. The exceptions are not reurged before this court.

The suit of plaintiff, Peter LaCoste was dismissed upon the joint motion of said plaintiff and the aforenamed defendants suggesting that said petitioner's claim had been settled by compromise agreement reached in a separate action.

After trial on the merits below, the learned trial court rejected the claims of plaintiffs, Murphy and Barton LaCoste, and from said unfavorable determination said plaintiffs have taken this appeal.

Our esteemed brother below stated the issue thusly:

'The principal question posed for determination in this workmen's compensation suit is whether, or not, an employee can be awarded compensation for total disability on account of an occupational disease while he is still working at his regular job and performing his duties well, without any undue pain or discomfort.'

However, in resolving the controversy adversely to plaintiffs, our worthy colleague concluded it was unnecessary to decide the question whether or not plaintiffs had contracted silicosis because, assuming they had the evidence did not establish their disability as a result thereof. Considering the record establishes that appellants were still performing the duties of their occupation at the time of trial and receiving full wages therefor, the learned trial court further concluded they were not entitled to compensation inasmuch as our law does not permit recovery of compensation while the injured employee continues in his employment at full pay.

He further concluded an employee is not entitled to compensation for total disability unless he is totally disabled to perform work of a reasonable character which rule is subject to only two exceptions, namely: (1) where the employee can still perform his work but only while suffering pain, and (2) where the employee loses a bodily member or suffers disfiguration which does not prevent him from doing his work.

Appellants concede that at the time of instituting suit as well as at the time of trial, both were still employed as sandblasters and painters by defendant employer. Plaintiffs further acknowledge that they were still receiving full wages for a full day's work; that they occasionally worked overtime and that they had received wage increases along with other employees similarly classified. Appellants nevertheless contend the trial court erred in failing to find they were in fact suffering from silicosis and also erred in denying their claims for compensation benefits as for total permanent disability.

In August of 1962, plaintiffs were given a routine annual X-ray examination by Dr. C. G. Whitley, general practitioner, at the request of appellants' aforenamed employer. Dr. Whitley detected evidence of fibrosis which prompted him to refer appellants to Drs. J. N. Ane and William S. Neal, Radiology consultants. On August 4, 1962, Drs. Ane and Neal reported that chest examination of Barton LaCoste revealed that the 'pulmonary fields show a fairly marked generalized fibrosis suggesting a possible silicosis.' Re-examination on July 22, 1963, by Drs. Ane and Neal disclosed signs identical to those previously noted, with no apparent change in the radiographic appearance of the patient's chest. Dr. Whitley would not venture a definite diagnosis of the condition of Barton LaCoste but stated 'his suspicions would lean toward silicosis.' (The medical evidence relative to Murphy LaCoste will be separately discussed hereinafter.)

On October 7, 1963, Barton LaCoste was examined by Dr. Samuel B. Nadler, a specialist in internal medicine. Dr. Nadler stated that X-rays taken pursuant to his direction showed very definite reticulation with punctate densities in the lung field on both sides in the first and second interspaces. In a report to defendant insurer dated October 28, 1963, referring to plaintiff, Barton LaCoste, Dr. Nadler said:

'While the pulmonary function studies in themselves were not abnormal, this patient's history of shortness of breath upon exertion of moderate degree and the finding of changes in both upper lung fields are consistent with the possible diagnosis of silicosis in view of the occupational history of this patient. I believe this patient's story and this would look like early silicosis to me. At this time this patient is not disabled but has to limit his activities to a pace consistent with being free of shortness of breach. I do not think that he should proceed with further exposure to sandblasting unless very careful precautions are taken to avoid undue exposure of this individual. He already has the physical findings on x-ray suggestive of silicosis.'

In a subsequent deposition Dr. Nadler, referring to appellant Barton LaCoste, gave the following testimony:

'A. We are talking about Batron (sic) LaCoste?

Q. Yes, sir--continues to work as a sandblaster and if as a result of that work fine dust continued to get into his nose and mouth, will this tend to aggravate the silicosis condition?

A. I would think that if he is working as a sandblaster at a sandblasting job and has changes in his lungs of silicosis at this time, he must do one of two things, either quit this form of work or have adequate dust protection. Now, by 'Adequate dust protection,' I mean really, good dust protection, because many of the men who work in plants or in areas like this for their own sakes don't realize that they mustn't take the masks off while there is a lot of dust in the air and while they are sandblasting, and many of them do . When Batron (sic) LaCoste was here, I told him this, for his own sake, he is a human being, and I did explain to him that continued exposure to silicosis was a hazard to him as it is to anybody else.

Q. Now, this silicosis, Dr. Nadler, as I understand, it causes shortness of breath. Would it if Batron (sic) LaCoste just got out working, say, ditchdigging or something like that, would the shortness of breath you know doing that kind of hard, manual labor, would that tend to tire him out and slow him down?

A. Well, I am dependent not ¹ on what the patient has told me. He told me that when he exerts himself unduly, he has shortness of breath. Now, I don't think it makes a bit of difference whether he changes automobile tires, digging a ditch or having an affair with some female, I mean, all of these things are exertional effort, and he says exertional effort will make him short of breath so that I would say an answer to your question, that if he can engage himself in an occupation that does not require that he exert himself to the point of shortness of breath, no harm could occur.'

With respect to the medical evidence regarding the condition of appellant Murphy LaCoste, we note considerable conflict therein. When Dr. Whitely referred Murphy LaCoste to Drs. Ane and Neal on August 4, 1962, said consultants reported that the 'hilar structures are slightly enlarged and there is a slight generalized pulmonary fibrosis.' The following year, on July 22, 1963, Drs. Ane and Neal reported that the latest film was somewhat darker, but they observed no essential difference in the radiographic appearance. In substance Dr. Whitley testified that Murphy LaCoste was found to have minimal fibrosis, but he could not conclude said appellant had silicosis.

Dr. Nadler examined Murphy LaCoste on October 7, 1963, and reported as follows:

'Essentially the x-ray picture of the chest failed to show any abnormality. There is no evidence of silicosis in these films. The pulmonary function studies done on this patient show some moderate obstruction to air flow but this may well be within the limits found in a heavy smoker. X-ray evidence fails to reveal findings that are even suggestive of silicosis.

'It is not possible on the basis of my findings on this patient to make a definitive diagnosis of silicosis in him. So far as I can tell there is no significant lung disease.'

In his deposition subsequently taken, Dr. Nadler in effect stated he could find no objective evidence at all to indicate Murphy LaCoste was suffering from silicosis. X-rays taken of the patient's chest proved normal. Dr. Nadler found no evidence of fibrosis in the lungs and neither did he discern any evidence of silicotic process. Dr. Nadler's findings are at considerable variance with those of Dr. Joseph E. Schenthal, internist, who examined appellant Murphy LaCoste a few months later as will hereinafter appear.

Dr. Schenthal examined plaintiff, Murphy LaCoste, December 23, 1963, December 30, 1963, January 6, 1964, January 17, 1964 and February 17, 1964. On March 14, 1964, Dr. Schenthal reported that an 'occasional faint crepitant rale was noted on inspiration in both lung bases * * *. Pulmonary function studies carried out in the pulmonary laboratory at Touro Infirmary revealed moderately obstructive...