Latiolais v. Home Ins. Co.

• Decision Date: 23 August 1984
• Docket Number: No. 83-829,83-829
• Parties: Robert LATIOLAIS, Plaintiff-Appellee, v. The HOME INSURANCE CO., et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 902

454 So.2d 902

Robert LATIOLAIS, Plaintiff-Appellee, v. The HOME INSURANCE CO., et al., Defendants-Appellants.

No. 83-829.

Court of Appeal of Louisiana, Third Circuit.

Aug. 23, 1984.

Rehearing Denied Sept. 19, 1984.

Allen, Gooch, Bourgeois, Breaux & Robison, P.C., Frank Flynn, Lafayette, for defendants-appellants.

Vernon McManus, Eunice, for plaintiff-appellee.

Before LABORDE, YELVERTON and KNOLL, JJ.

KNOLL, Judge.

Robert L. Latiolais brought a workmen's compensation suit seeking total and permanent disability benefits and statutory penalties and attorney's fees against his employer, Wilson Brothers Drilling Company, and its insurer, Home Insurance Company. The trial court found Latiolais temporarily totally disabled, awarding him benefits from the date of injury continuing during the period of disability, medical expenses, 12% penalties on all compensation benefits due, and an attorney's fee of $7,500.

The defendants appeal contending the trial court committed manifest error in finding: (1) Latiolais temporarily totally disabled; (2) the defendants arbitrary and capricious in terminating benefits; and, (3) in awarding excessive attorney's fee. Latiolais answered the appeal seeking benefits for total and permanent disability and an increase in attorney's fees. We amend and affirm, finding no abuse of the trial court's discretion.

The facts are undisputed. On September 17, 1981, Latiolais was working as a floor-hand on a rig in an oil field near Branch. During rigging down, a drill line hung up in the sheave. Latiolais climbed the A-frame structure and reached into the sheave with his gloved right hand. The weight of the block pulled back, catching and lodging his right hand in the sheave for approximately five minutes injuring his long, ring and little fingers. He was immediately taken to Moosa Memorial Hospital where x-rays and examination showed a fracture of the proximal end of the ring finger, circumferential lacerations of the right ring finger and extensor mechanism transection, and a subungual hematoma of the little finger. The treating physician, Dr. Gary Lafleur, closed the lacerations and applied a short arm cast to immobilize the fracture. Latiolais remained hospitalized for two days and was seen on five occasions at Dr. Lafleur's office. Because of the complexity of Latiolais's injury, Dr. Lafleur referred him to Dr. L. Lazaro, III, an orthopedist with a specialty in hand surgery.

Dr. Lazaro's examination revealed that Latiolais had suffered multiple lacerations on the dorsal aspect of the long, ring and little fingers. The ring finger was the most severely involved. The ring finger was fixed at approximately 55-60 degrees of flexion, with only a small piece of soft tissue still attached, the flexor tendons were denuded, and there was also involvement of the extensor mechanism. Dr. Lazaro felt Latiolais's ring finger needed attention because the finger would always act as a hook. Because Dr. Lazaro opined that Latiolais's chances were too slim to justify reconstructive surgery on the finger to restore motion, he amputated the ring finger at the PIP (Middle) joint on November 10, 1981.

On November 26, 1981, Latiolais returned to work for Wilson Brothers until he quit on January 14, 1982. Shortly after, he worked as an industrial painter for R.T. Nelson Company until May 1982, and then for Bernard & Burke from October to November, 1982. He attempted carpentry work but was laid off because he was unable to hold a hammer.

Wilson Brothers was paying Latiolais $9.45 an hour when he was injured. Home Insurance paid the medical expenses and weekly compensation at the rate of $183 from September 18, 1981, until November 26, 1981, for a total of $1,830.

DISABILITY

The defendants assert that Latiolais's disability is limited to recovery for the amputation of two joints of his right ring finger. They contend that Latiolais is not disabled because he returned to work as a roughneck for Wilson Brothers on November 26, 1981, and later worked in 1982 as an industrial painter. They emphasize that Dr. Lazaro placed no restrictions on Latiolais's activities nor did Latiolais complain of pain to the doctor until he was re-examined on December 16, 1982. To the contrary, Latiolais contends that he is totally and permanently disabled.

A worker who cannot return to gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981). Total disability, whether permanent or temporary, means the inability to engage in any gainful occupation, whether or not the same or one similar to that in which the employee was customarily engaged when injured. LSA-R.S. 23:1221(1), (2); Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982). A worker is not considered disabled solely because he suffers some residual pain and discomfort when he attempts to work following a work-related accident. The pain or discomfort is considered disabling only if it is substantial or appreciable pain. Miller v. Electrical and Pneumatic Services, Inc., 434 So.2d 602 (La.App. 3rd Cir.1983); Augustine v. Courtney Construction Company of Alexandria, Inc., 405 So.2d 579 (La.App. 3rd Cir.1981), writ denied, 407 So.2d 735. Whether a claimant's pain is substantial enough to be disabling is a question of fact that must be determined according to the circumstances of each individual case. Augustine, supra.

The worker has the burden of proving his disability to a legal certainty and by a preponderance of the evidence. Augustine, supra; Guidry v. Ford, Bacon & Davis Construction Corp., 376 So.2d 352 (La.App. 3rd Cir.1979). In every case the totality of the evidence, medical and lay, must be examined by the court in making its determination of whether to grant a disability award. Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977); Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975).

The criteria to determine whether disability is temporary or permanent is claimant's condition at the time of trial. Glover v. Southern Pipe & Supply Co., 408 So.2d 352 (La.App. 4th Cir.1981), writ denied, 412 So.2d 86 (La.1982). If an injured worker can show disability under the subsections governing benefits for temporary total disability, permanent total disability or partial disability, the provisions governing benefits for the loss of an extremity are inapplicable. Conlay v. Houston General Ins. Co., 370 So.2d 196 (La.App. 3rd Cir.1979), writ granted, 371 So.2d 618 (La.1979), dismissed upon settlement, 374 So.2d 650 (La.1979). On appellate review, the trial court's factual findings with regard to the issue of disability are entitled to great weight, and will not be disturbed absent clear error. Culp v. Belden Corp., 432 So.2d 847 (La.1983).

In the present case, the trial court considered the medical testimony of Dr. Lazaro, an expert in the field of orthopedic surgery with a specialty in hand surgery and hand treatment, and Errol J. LeBlanc, a licensed physical therapist. Approximately two months after the amputation of Latiolais's ring finger, Dr. Lazaro estimated that Latiolais would have a 10% impairment to the hand on a permanent basis. On his following visit on February 15, 1982, Dr. Lazaro found Latiolais's hand strength weakened significantly and noted that he had difficulty using the right hand. Dr. Lazaro referred Latiolais to Errol J. LeBlanc for evaluation. LeBlanc conducted a series of objective tests which results were as follows: his grip strength of the right hand was generally 50% weaker than the left; he was unable to fully flex his right hand especially on objects like a rope and a chain; and he lacked endurance strength and exhibited poor performance when his right hand was used for an extended period of exertion. After receiving these results, Dr. Lazaro increased Latiolais's hand impairment to 30% and discharged him on February 26, 1982, without restrictions.

Latiolais testified he returned to work because of economic reasons and suffered pain when he used his right hand. After he was discharged, it was his understanding that he lost two-thirds of a finger, suffered a permanent right hand impairment, and there was little more that could be done medically to help him. When he was roughnecking, he explained that he was right handed, therefore he was unable to grip the chain with enough strength to bind it to the drill pipe. When he worked as an industrial painter, he had to rely on the assistance of his left hand and co-workers to pull himself up on a boatswain's chair to the height he was painting (generally 60-300 feet). Co-workers testified that he complained of pain and an inability to use his right hand. They assisted him in carrying the 30 lb. paint cans, in pulling up the boatswain's chair, and in handling the oilfield chains. Latiolais testified he worked in pain and feared for his safety because he could not grasp the tools he used with any strength.

Dr. Lazaro saw Latiolais again on December 16, 1982, for pain and tenderness in the right hand localized at the base of the ring finger. His examination revealed that Latiolais's flexor tendon was stuck in scar tissue causing a loss of strength in the hand, as well as an inability to completely flex the long, ring and little fingers. This condition directly correlated to his earlier findings and were consistent with Latiolais's complaints of pain. Dr. Lazaro stated that Latiolais's hand irritation posed a significant problem. At trial, Dr. Lazaro opined that...