Mayes v. Louisiana-Pacific Corp.

• Decision Date: 19 December 1979
• Docket Number: No. 7220,LOUISIANA-PACIFIC,7220
• Citation: 379 So.2d 46
• Parties: D. G. MAYES, Plaintiff-Appellant, v.CORPORATION, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 46

379 So.2d 46

D. G. MAYES, Plaintiff-Appellant, v. LOUISIANA-PACIFIC CORPORATION, Defendant-Appellee.

No. 7220.

Court of Appeal of Louisiana, Third Circuit.

Dec. 19, 1979.

Rehearing Denied Feb. 4, 1980.

Writ Refused March 21, 1980.

McKeithen, Burns & Wilkins, Paul Wilkins and Andree P. Guichard, Columbia, for plaintiff-appellant.

Gaharen & Wilson, Joseph Wilson and Paul Boudreaux, Jr., Jena, for defendant-appellee.

Before CUTRER, STOKER, WARE, ^* JJ.

STOKER, Judge.

This is a workmen's compensation case. The plaintiff-appellant, D. G. Mayes, appeals from a judgment of the trial court denying his claim for total and permanent disability under LSA-R.S. 23:1221(2). In the alternative that he be found not to be Totally and permanently disabled, plaintiff-appellant seeks compensation for permanent Partial disability under LSA-R.S. 23:1221(3). In the further alternative, appellant contends, in the event he be found not to be totally or partially disabled, that he should be awarded benefits under LSA-R.S. 23:1221(4), the specific injury schedule. The first schedule benefit claimed as an alternative is under subparagraph (p) for loss of a physical function, the inability to move his head and neck in a full range. LSA-R.S. 23:1221(4)(p). The second is under subparagraph (e) and (f) based on limitations resulting from injury to his hand and wrist. LSA-R.S. 23:1221(4)(e) and (f).

The trial court articulately stated the facts of the case in its written reasons for judgment and set forth its conclusions and opinion to support its judgment which denied compensation in any form. We set forth in full the trial court's reasons and adopt its statement of facts. We arrive at different conclusions as to the interpretation of law to be applied and therefore reverse. The trial court's reasons for judgment are as follows:

REASONS FOR JUDGMENT

This is a workmen's compensation case resulting from an accident on November 2, 1975. The plaintiff, D. G. Mayes, contends the accident caused him to become totally and permanently disabled while the defendant, Louisiana Pacific Corporation, claims he fully recovered from his injury. I conclude that while he has not fully recovered, he is not entitled to additional benefits.

Plaintiff was a Class A millwright when injured. He explained that this involved repair and maintenance of a wide variety of machinery and equipment at defendant's plywood plant in Urania, Louisiana. He regularly used hand tools in this trade, including wrenches, hammers and cutting torches. He had some training as a welder, but was not certified as such. He had been working for 48 or 49 years. During most of this time he was a carpenter or millwright for the various timber companies that owned the Urania facilities. He had a ninth grade education.

On November 2, 1975, plaintiff and several other millwrights were called upon to repair a torn belt on an overhead conveyor used to move wood chips, sawdust and scrap material. To accomplish this, they shut down the conveyor and plaintiff was lifted up in a basket to a height that would allow him to reach the belt. Two other men pulled the belt until the ends joined and plaintiff was stitching the belt. He had some of the string he was using to sew with wrapped around three or four fingers of his right hand. While plaintiff was bent over the belt sewing, someone out of sight of the repair crew threw an electrical switch starting the belt. Plaintiff was jerked out of the basket and thrown to the floor. It seems he fell about 15 feet and struck his head on something on the way down. He was rendered unconscious and landed on his head and right shoulder. He woke up in a nearby hospital as a nurse was cutting off his shirt.

The accident caused plaintiff to break his right wrist and tore skin and nails from his fingers. He had a scalp laceration and a cerebral concussion. He had lacerations on his right thigh and tenderness in the right scapular region. He had abrasions on his left heel and left arm. He suffered a fracture through the left transverse process of the seventh cervical vertebrae. He complained of severe pain in his right shoulder. He was hospitalized under the care of Dr. T. E. Tannehill from November 2nd until November 14th. Dr. Tannehill saw plaintiff as an outpatient on November 20th and 26th and on December 4th, 12th, 19th, and April 30th and May 3rd or 7th of 1976.

On release from the hospital plaintiff was still wearing a cast on his right arm and a soft collar on his neck. He returned to work in that condition on December 10, 1975. He was told to teach the younger millwrights what he knew about the plant and its equipment and he remained on light duty. He wore the cast about six weeks and wore the collar for a shorter period. Exactly when he resumed his regular duties or got off light duty status is not clear.

The plant maintenance supervisor, Ruffin Scoggins (the transcript is in error concerning his name) testified that Mr. Mayes ultimately did all that he was expected to do as a Class A millwright. Mr Mayes denied this, asserting instead that after the accident he did little more than tell the other men what to do and how to do it. Mr. Scoggins said he was not promoted to foreman or supervisor. Mayes said his primary problem was that he could not use his right hand as well as he did before the accident. (See pages 15 and 16 of transcript.) He also said he had and still has difficulty turning his head. He continued in defendant's employment until he reached mandatory retirement at Sixty-Five on September 22, 1976.

In all, plaintiff was seen by three doctors. Dr. Tannehill saw him first and most often. He is a general practitioner. Then he saw Dr. R. J. Beurlot of Alexandria who is an orthopaedic surgeon. Dr. Beurlot examined plaintiff on May 14, 1976. He also saw Dr. Baer Rambach of Shreveport who is also an orthopaedic surgeon, on March 13, 1977, and in November of 1978.

Dr. Tannehill testified he believes that plaintiff can do all he was doing before the accident. It is clear from his testimony he considered plaintiff's return to the plant as indicative of ability to do all he was doing before being injured. It is also clear from his testimony that plaintiff continued to complain of shoulder and wrist difficulties into May of 1976 because Dr. Tannehill continued to take X-Rays which did not indicate any problems. It is significant that in May of 1976 Dr. Beurlot found continued limited motion in movement of the head and neck and plaintiff's continued inability to close his right fist. Dr. Rambach's findings were fairly consistent with the earlier findings concerning the neck and wrist limitations, which he believed were more persistent than the other doctors had anticipated. He concluded from his findings the plaintiff had suffered a severe muscle strain in the cervical region that was still partially disabling him. He also concluded that the accident aggravated a pre-existing degenerative arthritic condition and that hammering with the right wrist could not be accomplished without pain.

This Court finds that Mr. Mayes was injured in a compensable accident as alleged. Further, this Court finds that the trauma to plaintiff's shoulder and cervical region has caused permanent partial limitation of his ability to move his head and neck and some chronic aggravation of pre-existing degenerative arthritis. The wrist fracture, while healed, caused a persistent inability to use hand tools in a regular consistent manner during regular employment without pain and it caused an inability to completely close the right hand. All of these residual problems combined with the circumstances of plaintiff's age and education make it reasonably certain plaintiff cannot do the carpentry work that he expected to do after retirement and there are probably some duties as a millwright that he cannot perform. The evidence before me convinces me this plaintiff can work as a carpentry foreman and earn $5.00 per hour supervising the work of other carpenters. He did this on two short jobs for wages after his retirement. He did it for a longer period under a barter arrangement with a relative who could do some specialized work on plaintiff's own residence. I also find that the only reason he cannot continue as a millwright for defendant is his age. His after retirement work discussed at length at trial indicates he can do some other work such as supervise carpenters, but he cannot do carpentry work himself.

The fact that plaintiff has retired was argued extensively. It may be that allowing an older employee the same compensation a younger man would get is somewhat unfair. However, such a problem is one for the legislature to remedy. It has been held to be such in Haywood v. Eastern Terminals, 276 So.2d 328 (La.App. 4th Cir. 1973).

A workman in Louisiana who is accidentally injured is considered totally disabled only under two conditions. The first is when the employee cannot perform any gainful work for a wage and the second is when the employee can work, but cannot do so without substantial pain. The employee is partially disabled if the injury compels him to take work outside of the occupational category he was in when injured. LRS 23:1221. When partially disabled, he is entitled to a weekly benefit for no more than four hundred weeks for an injury sustained on November 2, 1975, and then only for two thirds of the difference between what he was earning when injured and what he "actually earns" after returning to work.

While LRS 23:1221(3) uses the language "actually earns", I am of the view it means Actually earns or is capable of earning. Otherwise, the choice of whether or not to work would rest solely with the employee and non-accident related factors could become involved, such as the availability of work and age. I believe the plaintiff would like to work, but only if there is employment available in the immediate vicinity of his residence. It is my...