Loflin v. Erectors & Riggers, Inc.

• Decision Date: 13 November 1953
• Docket Number: No. 3750,3750
• Court: Court of Appeal of Louisiana — District of US
• Parties: LOFLIN v. ERECTORS & RIGGERS, Inc.

Page 694

68 So.2d 694

LOFLIN v. ERECTORS & RIGGERS, Inc.

No. 3750.

Court of Appeal of Louisiana, First Circuit.

Nov. 13, 1953.

Rehearing Denied Dec. 18, 1953.

Durrett & Hardin, Baton Rouge, for appellant.

Dodd Hirsch & Barker, D. Lenton Sartain, Baton Rouge, for appellee.

CAVANAUGH, Judge.

This suit is by the plaintiff for the maximum amount of $30 per week compensation for permanent total disability under LSA-R.S. 23:1221, subparagraph 2, for a period not exceeding 400 weeks during the period of his disability, when he suffered a dislocation of the ulna at the wrist joint while in the employ of defendant. The only disputed issue in this case is whether the plaintiff suffers total disability to do work of a reasonable character.

We find the facts to be substantially as follows, as reflected by the record:

On April 21, 1952, plaintiff was employed as an iron worker by defendant at an average weekly wage of approximately $100 per week, and while performing services arising out of, incidental to and during the course of the business and trade of defendant, which he alleges is a hazardous business under the Workmen's Compensation Law of Louisiana, and while engaged in welding some large metal plates during the course of his employment, one of the plates fell on his left forearm causing a dislocation of the ulna at the wrist joint. The plaintiff was taken to a hospital in the City of Baton Rouge where, under a general anesthesia, the dislocation was reduced by Dr. Moss Bannerman and a long-arm cast applied. The plaintiff remained in the hospital only a few hours, leaving the hospital on the same day the accident happened, and returned to work within 48 hours in the same crew, but, on account of the injury, he was assigned to light work called 'flagging' or 'swamping'. We understand that flagging or swamping is one of the light duties of an iron worker.

He pursued this light work for the defendant until May 14, 1952, at his same daily wage and left its employment of his own accord. He worked for other construction companies doing light work of a similar character until some time during the month of August or the first of September, when he left Baton Rouge to go to Charleston, West Virginia, to take a job in what he calls a 'raising gang'. We understand from the evidence that an iron worker's duties are to construct and put together steel going into the framework of buildings, structures and bridges. The duties performed by a worker in the raising gangconsist of raising and putting together with bolts the sheets of iron, and that work is followed by the riveting crew that removes the bolts and rivets the pieces of iron together. This crew consists of four men, one of whom uses a riveting gun. Another one of the crew bucks the rivet and sets a bumper jack against it, while the hammer is being applied. Another one of the crew operates the heater where the rivets are heated, and his duties also require him to throw these hot rivets to another employee who catches them in a cone-shaped tin receptacle where they are placed by him in a hole for the driver to commence his work. Other workers in a construction crew remain on the ground and fasten hooks and cables to sheets of steel or other material which is lifted by means of a derrick or crane. The workers who go above the ground, whether they be in the raising gang or in the riveting gang all have to climb ladders or columns or hang on the iron where they work or on platforms constructed so they can use the tools of their trade.

During the entire period from the time plaintiff was injured until the trial of this case, he had lost no appreciable time from work and had earned the same wages he was earning or more than at the time of the accident.

Plaintiff was attended by Dr. Bannerman from the date of the accident until he was discharged on or about May 29, 1952, at which time Dr. Bannerman says he was able to resume his work. At that time the doctor found that he had a slight impairment of function of his left forearm due to the injuries, but he stated that the claimant had excellent strength and suffered only about twenty degrees of restricted motion in each direction and that it was his opinion that he was ready to return to his regular employment without disability at that time.

On July 29, 1952, he was examined by Dr. J. Willard Dowell at the request of his attorney, and he found that the plaintiff suffered a slight limitation of rotation in the left forearm. He determined that this was a ten degree limitation of supination. No other disabling condition was found, and it was this physician's opinion at that time that the only possible permanent disability the employee would have would be a slight limitation of rotation in the forearm, and he suggested deferring final evaluation for a period of three months.

Defendant took plaintiff's evidence pursuant to an agreement with plaintiff's counsel on December 23, 1952, which was within one week after plaintiff returned from West Virginia.

Dr. Bannerman last saw the plaintiff on July 11, 1952, and did not see or examine him again until March 23, 1953, which was the day before the trial. Dr. Dowell examined the plaintiff during the month of July, 1952 and examined him the last time during the latter part of December or the first of January, 1953. Dr. Dowell's testimony is that the plaintiff has a 10% impairment in the function or use of the arm, whereas Dr. Bannerman estimated the disability at 5%. Both of these physicians testify that the plaintiff has a 20% limitation of supination of the forearm.

The District Court, after hearing the evidence in the case, filed written reasons for its judgment in which he fully covers the facts in the case, reviewing plaintiff's activity from the time of the accident, the nature and character of the work he performed, and makes this statement in his opinion which appears to us to be inconsistent with his reasons for judgment:

'Upon hearing and later reading plaintiff's own testimony, I am left with the strong suspicion that there is very little if anything wrong with him.'

The Court based its award in favor of the plaintiff for total disability on the medical evidence of the two doctors who said plaintiff suffered a limitation in supination and pronation causing permanent disability of the forearm of between 5% and 10%---- Dr. Dowell fixing the disability at between 5% and 10% and Dr. Bannerman at 5%. The Court stated that on account of the duties of an iron worker in the construction trade, it would be dangerous to himself and others should the worker undertake all the hazards of such work, while suffering a minor physical disability, and that in appraising all of the testimony and persuaded by our decision in the case of Newsom V. Caldwell & McCann, 51 So.2d 393, he concluded that the plaintiff was entitled to judgment for permanent and total disability. If our ruling in the Newsom case was correct and the plaintiff was disabled to do work of a reasonable character under the facts in that case and the evidence adduced on the trial thereof, and the facts and the evidence in this case are substantially the same, it would warrant a similar ruling.

The defendant has brought to our attention in this case a factual situation which it claims we did not have in the Newsom case. In the Newsom case, the plaintiff had suffered a crushing injury to his knee, was hospitalized for ten days and was confined to his bed at home for five weeks. He worked for another employer about eight months as a swamper or operator of a winch, which, according to the evidence in this case and in our opinion in the Newsom case, was light work. Newsom, after this eight months of light work, never resumed work and was unemployed at the time of that trial. The medical evidence in the Newsom case was positive that Newsom had weakness of the muscles of his injured leg, atrophy of the muscles resulting from the injury and that there was a numbness due to a nerve injury and he was adjudged totally disabled because he could not do the work in a riveting gang and the claimbing necessary for the job. If there are no distinguishable features in the Newsom case from this case, then we ought to be guided by our holding in that case, but if there are distinguishable features in it, which show that the plaintiff is not totally disabled to do work of a reasonable character as contemplated by the total disability provisions of the statute, and does not have disability to such an extent that it affects his working or earning capacity, and did not affect it at the time of the trial of this case, then we should not be guided absolutely by that holding.

We are not unmindful that on questions of fact and the credibility of the witnesses, the trial judge's findings are gives great weight and are not to be reversed here, except where there is manifest error. However, where the Court states that it 'does not find very much wrong with the plaintiff, and it is inconceivable that he would quit a job where he was doing light work and go several hundred miles to engage in work where his greatest strength and endurance is called upon, and that he was persuaded in his conclusion by our ruling in the Newsom case', presents an unusual reason for a judgment.

The difficult point with which we are confronted here is whether or not the plaintiff is 'totally disabled to do and perform work of a reasonable character'. Under the rulings of the appellate courts of this State that clause has been held to mean, according to liberal judicial interpretation, work of the same or similar nature for which the workman is fitted by education and previous experience; or "disability to do work of any reasonable character', as contained in the compensation statute, means disability to perform work of the same or similar description, kind or character (not necessarily the identical position) to that which the claimant was accustomed to perform...