McGee v. State, Through Bd. of Com'rs, Port of New Orleans

• Decision Date: 14 February 1978
• Docket Number: No. 8919,8919
• Citation: 355 So.2d 1079
• Parties: Luther McGEE v. STATE of Louisiana, Through its Agent, BOARD OF COMMISSIONERS, PORT OF NEW ORLEANS.
• Court: Court of Appeal of Louisiana — District of US

Page 1079

355 So.2d 1079

Luther McGEE v.STATE of Louisiana, Through its Agent, BOARD OF COMMISSIONERS, PORT OF NEW ORLEANS.

No. 8919.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 14, 1978.

Denis A. Barry, New Orleans, for Luther McGee, appellant.

Keith W. Petrie, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Board of Commissioners of the Port of New Orleans, appellee.

Before REDMANN, BOUTALL and BEER, JJ.

BOUTALL, Judge.

Luther McGee sued for workmen's compensation benefits claiming total and permanent disability, and prosecutes this appeal from a judgment awarding partial benefits.His employer, Board of Commissioners, Port of New Orleans, also appeals.

The trial judge found McGee to be only partially disabled and granted him benefits at the rate of $18.59 per week for 175 weeks, subject to a credit of 42 weeks during which McGee worked and received wages in lieu of compensation, and further credit of $650 compensation already paid.Appellant McGee disputes each of these items, contending 1.) that he is totally and permanently disabled; 2.) that no credit should be granted for the 42 weeks for which he was paid wages because he worked in severe pain; and 3.) he should have been granted penalties and attorney's fees for nonpayment of his claim.The appellantBoard of Commissioners contends that the judgment improperly allows benefits for this injury at a time when McGee is receiving maximum benefits due to a second, unrelated injury.

While at work on July 13, 1974, McGee slipped and injured his right knee.His doctor examined the knee and offered some treatment, telling him to stay off the knee for a while, and on July 22, 1974he returned to work.His knee problem did not resolve however, and he continued treatment with other doctors from October to January 6, 1975, at which time he was hospitalized for surgical repair of a tear of the right medial meniscus.Up to this time, plaintiff had been paid his usual salary by the employer.Beginning January 6, he was paid accident compensation of $65.00 per week to March 17, 1975.He returned to work for his employer from that date until his second injury, an injury to the back unrelated to this, on July 28, 1975, and was paid wages up to that time.From July 28he has received compensation of $65.00 per week for his second injury.

The basic issue to be determined is the extent of the claimant's injuries.¹Plaintiff testifies, and the medical records show, that plaintiff continued to experience some difficulty with his right knee, and it was some time before the doctors were able to ascertain with certainty that he was suffering from a cartilage tear in the knee.The extent of McGee's pain and suffering, and the inability to do his work as a carpenter during this period are in dispute.If McGee's testimony is to be wholly believed, he has worked with such pain and suffering as to entitle him to compensation benefits above the wages paid.In opposition to this his employer has introduced evidence to show that he worked the same as any of the other workmen during this period, and that his complaints of pain were only occasional.The medical reports show that the treating physicians believed McGee could continue to work adequately with his injuries, but considering their findings of fluid on the knee, etc., it was obvious that he did suffer some pain.

The conclusions of the trial judge are somewhat ambiguous because he found that McGee was only partially disabled during this period, yet at the same time granted the employer credit for wages paid in lieu of compensation.There is ample evidence to support a finding of partial permanent disability to McGee's leg, R.S. 23:1221(4h and o ) and we agree with the trial judge's conclusion in that respect, but we cannot agree with the conclusion that McGee received wages in lieu of compensation.

The basic test for determining whether wages are paid in lieu of compensation is whether the wages paid after the injury are actually earned.This is determined by the facts and circumstances of a particular case.Madison v. American Sugar Refining Co., 243 La. 408, 144 So.2d 377(1962);Francis v. Kaiser Aluminum & Chemical Corp., 225 So.2d 756(La.App. 4th Cir.1969);Pender v. National Fire and Marine Insurance Co., 255 So.2d 95(La.App. 3rd Cir.1971).

McGee testified that after the first...