Lucas v. Insurance Co. of North America

• Decision Date: 24 January 1977
• Docket Number: No. 57814,57814
• Citation: 342 So.2d 591
• Parties: B. J. LUCAS, Plaintiff-Appellee-Relator, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants-Appellants-Respondents,
• Court: Louisiana Supreme Court

Page 591

342 So.2d 591

B. J. LUCAS, Plaintiff-Appellee-Relator, v. INSURANCE COMPANY OF NORTH AMERICA et al.,

Defendants-Appellants-Respondents,

No. 57814.

Supreme Court of Louisiana.

Jan. 24, 1977.

Concurring Opinion Feb. 9, 1977.

Rehearing Denied March 2, 1977. ^*

Howard N. Nugent, Jr., Ford & Nugent, Jr., Alexandria, for plaintiff-appellee-relator.

John W. Scott, Stafford, Randow, O'Neal & Scott, Alexandria, for defendants-appellants-respondents.

TATE, Justice.

The plaintiff Lucas sues his employer ('Miller') and the latter's insurer ('North America') for workmen's compensation benefits. The district court found the plaintiff to be permanently and totally disabled and awarded him maximum benefits, together with penalties and attorney's fees for the arbitrary non-payment of compensation benefits due.

Upon the defendant's appeal, the intermediate court reversed. 326 So.2d 525 (La.App.3d Cir. 1975). It found no causal relation between the employment accident and the disability proved.

We granted certiorari, 330 So.2d 317 (La.1976), because we felt that the intermediate court had, in reversing, overlooked certain principles involving medical proof of a causal relationship between a work-accident and a subsequent disability.

The chief issue before us concerns the requisites for proof of medical causation of a physical disability consequent to a workaccident. Other issues involve (a) the legal test of total disability of a skilled workman and (b) the defendant insurer's liability, if any, for penalties for the allegedly arbitrary non-payment of workmen's compensation benefits due.

Facts

Lucas, aged 40, had been employed as an oilfield truck driver for twenty-one years at the time of the accident. He was then employed as driver of a 'road truck'--work which the evidence shows includes not only driving, but much manual labor in assisting in loading and unloading pipe and oilfield supplies from his vehicle.

While handling heavy pipe on February 15, 1970, a rolling pipe crushed and fractured the tips of his middle and ring fingers of his left hand. Lucas received medical attention at a nearby hospital, but worked for the remainder of the day. He secured additional medical treatment on February 16, and returned to work the following day, A few days later, he was discharged because, he says, he could not perform the work.

North America commenced the payment of workmen's compensation. On March 17, 1970, about two months later, Lucas accepted employment with another firm as the driver of an oilfield rigging truck, where he has been steadily employed since that time. (As will be seen, this type of employment requires less physical labor requiring use of the hands in handling heavy oilfield equipment.)

The plaintiff contends that, due to residual pain and swelling of his fingers and left hand upon use and heavy work with them, he is unable to perform the duties of the skilled occupation in which injured, i.e., driver of a road-truck, and that he cannot perform without substantial pain even the lighter duties in which presently employed, i.e., gin-pole truck driver, without special mechanized assistance and additional help furnished him through the benevolence of his present employer.

The defendants contend, and the majority of the court of appeal agreed, that the plaintiff's work-injury was only a fracture of the tips of two fingers of the left hand, which eventually healed with disability. ¹

The plaintiff, on the other hand, contends that although only two fingers were fractured, the crushing injury involved soft tissue, tendon, nerve, and joint-stretching injuries of a more substantial nature, and it also activated a previously latent arthritic condition.

Before reverting to the medical evidence as to precise causation, we deem it appropriate to summarize the substantial and virtually uncontradicted testimony of the lay witnesses and of the two general practitioners (who treated and observed the plaintiff on frequent occasions during the four years between the accident and the trial):

1. Before the accident, the plaintiff suffered no disability whatsoever with regard to his left hand. Any latent arthritic condition was asymptomatic.

2. After the accident, his left hand and especially the two fingers in which fractures had occurred frequently became swollen and painful and discolored (purplish or bluish-red), especially upon extended use. The objective symptoms were noticed not only by his supervisors and co-workers, but also by the general practitioners who treated him, who prescribed pain relievers, and one of whom sent him to specialists to try to discover the medical cause of this obviously disabling condition and of the patient's other complaints.

3. Because of this painful condition, the plaintiff can no longer perform the duties of the skilled occupation in which injured, i.e., road-truck driver, which required the use of the hands in loading and unloading equipment. He can more easily perform the duties of gin-pole operator, because there the non-driving duties are primarily performed by manipulating lift equipment from controls in the cab rather than actually participating in loading and unloading. Even so, he suffers painful episodes, and he could not perform his present duties except for the forbearance of his present employer (who stated he did so to obtain the exceptional skills of this dedicated employee) in relieving him of the ten percent manual labor duties normally associated with the job and in providing his truck with a special air-seat and power-assisted brakes (at a combined cost of nearly one thousand dollars), in order to permit him to drive and to operate the truck controls with minimized strain upon his disabled left hand and fingers.

4. The work of truck drivers, whether road-trucks or gin-pole trucks, in the oilfield industry frequently requires twelve-hour days and sixty-hour weeks, as well as the driver's availability at any time of day or night to perform the hauling and location duties of the occupation. However, the operator of a gin-pole truck primarily performs 'location' work, with his truck serving as a sort of mobile crane by which to load and unload heavy equipment upon itself and for other purposes. Even more than the driver of a road-truck, the driver of a gin-pole truck has frequent intervals of simply waiting at the location in order to perform the specialized work for which his truck is equipped.

Legal principles applicable as to disability

The virtually uncontradicted evidence of the attending general practitions and of the lay witnesses proves that, following the work-accident, the two fingers with healed fractures became swollen and discolored as a result of use in heavy labor or of even extended use in driving the truck. It also proves that the painful symptoms prevented the plaintiff from performing the heavier portion of the duties of an oilfield road-truck driver, the occupation in which he was injured.

The primary issue is whether the work-accident was the cause of this undoubted disability. Nevertheless, before discussing this primary issue, we deem it appropriate to summarize the legal principles applicable to determine compensable total disability of this injured employee.

An injured employee is deemed totally and permanently disabled 'whenever he is unable to perform work of the same or similar description to that which he performed before the accident.' Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271, 273 (La.1973). As we stated in Lindsey v. Continental Casualty Co., 242 La. 694, 138 So.2d 543, 544 (1962):

'(A) skilled worker is deemed totally disabled within the intendment of the law if he is unable to do work of the same character as that which his training, education, and experience qualify him to perform, without unusual difficulty or danger. This rule is applicable to a skilled worker who cannot perform a substantial portion of the work incident to his special occupation. The fact that he may be able to perform the work through assistance does not alter the result. The law looks only to the occupation capacity of the injured employee.' See also Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849 (1969).

In the event of such proven total disability, the employee's recovery is not defeated if he can obtain other types of skilled work, such as driving a different type truck at a lesser (or greater) rate of pay. Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695 (1952). See also Futrell v. Hartford Accident and Indemnity Co., 276 So.2d 271 (1973). As Futrell notes, by reason of the work-caused disability, the employee is thereby placed at a disadvantage in securing employment in a labor market restricted in opportunity to him because of his work-disability. Further, the disability is nevertheless compensable if the employee returns to work and performs the duties but only with substantial pain. ² Williams v. Hudson East, 261 La. 959, 261 So.2d 629 (1972).

Under these circumstances, if the painful condition of the plaintiff's two fingers resulted from the accident that fractured them, the plaintiff is entitled to compensation for permanent and total disability.

Medical causation

As in other civil suits, the employee in a workmen's compensation proceeding has the burden of establishing the disability and causal relation with the employment accident by a preponderance of the evidence. Prim v. City of Shreveport, La., 297 So.2d 421 (1974). Nevertheless, 'it is not necessary for the experts to determine the Exact cause of the disability in order for the employee to recover. The complaint need show only by a preponderance of the evidence that somehow the employment caused the disability.' Malone Workmen's Compensation Law, Section 252 at p. 300 (1951).

(1)

Two general practitioners repeatedly treated and examined the plaintiff over the four years between the accident and the trial. Based upon their...