Lewis v. St. Charles Parish Hospital Dist.

• Decision Date: 09 December 1975
• Docket Number: No. 7233,7233
• Citation: 323 So.2d 842
• Parties: Anna Mae LEWIS v. The ST. CHARLES PARISH HOSPITAL DISTRICT d/b/a the St. Charles Hospital et al.
• Court: Court of Appeal of Louisiana — District of US

Page 842

323 So.2d 842

Anna Mae LEWIS v. The ST. CHARLES PARISH HOSPITAL DISTRICT d/b/a the St.

Charles Hospital et al.

No. 7233.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 9, 1975.

Rehearing Denied Jan. 13, 1976.

Writ Granted Feb. 13, 1976. See 326 So.2d 377.

Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.

Henderson, Hanemann & Morris, Charles Hanemann, Douglas H. Greenburg, Houma, for defendants-appellants.

Before LEMMON, BOUTALL, and BEER, JJ.

BEER, Judge.

Plaintiff-Appellee, Anna Mae Lewis, a twenty-five year old mother of three young children, was employed by the housekeeping department of Defendant-Appellant, St. Charles Parish Hospital Service District, d/b/a St. Charles Hospital, in February of 1973.

Her duties as maid in the housekeeping department consisted primarily of cleaning the various rooms and hallways of the hospital. She made use of a certain phenolic detergent germicide which, she alleges, has caused depigmentation of the skin of both hands particularly the dorsum of the fingers and the distal portion of the hands in patched areas originally comprising approximately seventy-five percent of her right hand and fifty percent of her left hand. Repigmentation has now reduced the original depigmentation by about fifty percent.

Four qualified physicians specializing in the field of dermatology essentially agree that the depigmentation noted above most probably resulted from contact with a phenolic detergent germicide variously referred to as Micro-Phene Bacteriacidal Detergent or Micro-Biocidal Detergent. The nomenclature is unimportant; the record supports the conclusion that the phenol content of the cleaning compound that was used at the hospital caused the depigmentation of Mrs. Lewis' hands.

Anna Mae Lewis is black. As a result, the depigmentation is more obvious insofar as the cosmetic consequences are concerned.

Dr. Guinter Kahn of the Division of Dermatology of the University of Colorado Medical Center in Denver, acknowledged by all of the physicians who testified as well-informed in this particular specialized field, has written a scholarly article with respect to allergic reaction to phenols and the resulting depigmentation which further supports the conclusion noted above but Dr. Kahn restricts his interesting article (which is in evidence) to a consideration of cause and effect and does not deal with any possible disability that this allergic reaction may provoke.

The physicians who testified either by deposition or at the trial generally agree that the depigmentation occasioned to Mrs. Lewis had not caused any loss of integrity of the skin of her hands nor resulted in any broken skin or scaling or extensive or severe blistering but also find that the contact effects did--in the acute state--cause some redness and itching and did produce one small blister (this, during the course of a patch test administered under controlled conditions when she was being seen by one of the physicians). None of the doctors who testified were able to say with any certainty that Mrs. Lewis would experience complete repigmentation although there is clear indication that there has been considerable repigmentation since the onset of the problem as evidenced by Dr. F. E. Palomeque's observation (after conducting an examination of Mrs. Lewis in open court) that repigmentation has progressed 'a great deal' since his initial examination.

The Medical evidence indicates that Mrs. Lewis' present condition does not cause any perceptible degree of pain and that its only serious impairment or obstacle to her general employment is that she should avoid direct physical contact with detergents which are composed of chemical compounds that include phenol; that is, phenolic compounds. However, one further conditional impairment to general employment exists due to the finding, by some of the doctors, that the areas of her hands which continue to be depigmentized are probably more susceptible to sunburn than the other parts of her body. This finding restricts her outdoor employment opportunity to some extent. In this respect the doctors agree that the sun would not be a factor if the sun's effects were controlled by a sun screen type lotion or gloves.

There is some consensus of agreement among the doctors that the cosmetic effect of depigmentation can, even in a stable person such as Mrs. Lewis, be emotionally disconcerting. However, no direct testimony on this issue was elicited from any expert in the field of psychiatry and we do not find any evidence in the record to form the basis for a claim of disability based upon any sort of neurosis. No testimony whatsoever was introduced to show that the cosmetic problem noted above has in any way, actually hindered Mrs. Lewis' ability to obtain other employment subsequent to her quitting her job as maid with the hospital. Quite the contrary, she admits on cross-examination that she has not sought employment at any other place or in any other field of endeavor. She gives no reason or explanation for this.

Mrs. Lewis testified that her contact with the phenolic detergent had more farreaching consequences than those described by the physicians who have treated and examined her. She complains of burning sensation, redness, some blistering and itching. However, she admits on cross-examination that the itching was directly dependent on her actual use of the phenolic compound. She acknowledges being the author of a general observation to the effect that if she did not use 'the stuff' (cleaning detergents containing phenol) it doesn't itch--if she uses it at all, it itches.

Mrs. Lewis filed that workmen's compensation suit claiming permanent and total disability in March of 1974 and the matter was tried in the Twenty-Ninth Judicial District Court on October 23, 1974.

The trial court correctly determined that Mrs. Lewis was engaged in hazardous employment within the contemplation of the law as defined by LSA-R.S. 23:1035 and further determined, correctly, that the depigmentation hereinabove described took place within the course and scope of her employment and as a result thereof.

The trial court further concluded that she was totally and permanently disabled and awarded her:

'* * * the sum of THIRTY-TWO THOUSAND FIVE HUNDRED & NO/100 ($32,500) DOLLARS payable at the rate of SIXTY-FIVE & NO/100 ($65) DOLLARS per week beginning on December 14, 1973 not to exceed five hundred (500) weeks, with interest at the rate of twelve (12) per cent per annum as provided under R.S. 23:1201.2, on each of the past due payments from its due date until paid, and ordering that each accrued amount with interest from the due date of each until paid at said rate be in a lump sum, subject to credit for any compensation that may have previously been paid by the defendant.'

The court entered an additional decree as follows:

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT: Plaintiff recover judgment against the defendant for all medical and incidental expenses up to the maximum sum provided by law, with interest at the rate of twelve (12%) percent per annum from the date of judicial demand until paid, subject to appropriate credit for any payments that may have been made on that score by defendants. The fee for all experts be taxed as court costs. All experts recognized by this court and Testifying in open court are to be paid a $200 expert fee, all other experts testifying by deposition are to be paid an expert fee of $100. All other claims be and they are hereby denied. All court costs are to be assessed against defendants.'

Defendants-appellants, St. Charles Parish Hospital and its insurer, Argonaut Southwest Insurance Company timely appealed that judgment to this court.

We conclude that the judgment in its present form cannot stand.

There is no serious contention that Mrs. Lewis could be entitled to payments of weekly benefits in an amount greater than $48.10. Her rate of pay was $1.85 an hour which amounts to $74.00 per week. LSA-R.S. 23:1021(11). She could not be entitled to weekly benefits greater than $48.10. (65% $74.00). LSA-R.S. 23:1221(2).

The trial court's decision to render a lump sum judgment of $32,500 was erroneous. Although the court may grant one award to cover the weekly benefits that have accrued as of the entry of judgment, it cannot make a lump sum award for future benefits. Hull v. Liberty Mutual Ins. Co., 236 So.2d 847 (La.App.1st Cir. 1970) writs denied 256 La. 862, 239 So.2d 361 (1970).

Having determined that defendant's actions in denying liability were not arbitrary or capricious, the court erred in awarding interest at the rate of twelve percent; the proper interest rate being the 'legal rate' of seven percent. LSA-C.C. Article 2924; Panebiango v. Main Insur. Co., 293 So.2d 536 (La.App.4th Cir. 1974); Lanclos v. Homer Knost Const. Co., 258 So.2d 224 (La.App.4th Cir.) writs refused 261 La. 467, 259 So.2d 915 (1972).

Thus, even an award based upon a finding of permanent and total disability would have to be substantially recast taking all of the above into account.

However, we are not able to agree with the trial court...