McKenzie v. Standard Motor Car Co.
| Decision Date | 06 October 1943 |
| Docket Number | 2560. |
| Citation | 15 So.2d 115 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | McKENZIE v. STANDARD MOTOR CAR CO. et al. |
Rehearing Denied Nov. 15, 1943.
Writ of Error Refused Dec. 13, 1943.
Durrett & Hardin, of Baton Rouge, for appellants.
Fred G Benton, of Baton Rouge, for appellee.
The defendants have appealed from a judgment rendered against them in the district court, awarding the plaintiff compensation as for total, permanent disability at the rate of $20 per week, beginning April 20, 1940, less certain credits for payments made which aggregate approximately 148 weeks. Plaintiff has answered the appeal, asking that the judgment be amended by eliminating those credits allowed and which represent payments of compensation from September 16 1940, to May 15, 1941, or a period of 34 weeks.
The amount of earnings of the injured employee are not disputed and neither are any of the material facts in the case controverted. Substantially, they may be said to be as follows:
The plaintiff Walter F. McKenzie had been doing body and fender automobile work for a number of years when he was injured in the course and scope of his employment with the Standard Motor Car Company of Baton Rouge, on April 13, 1940. He was guaranteed $35 a week and received 40% commission on all work that he did which netted him, when he worked a whole month, a minimum of approximately $192.37. During one month in 1939 he earned as much as $265.49.
Subsequent to his injury on April 13, 1940, he did not work until September 15, 1940, during which time he was paid compensation at the rate of $20 a week and received the $35 a week which he had been guaranteed. The compensation payments he turned over to his employer.
Upon the advice of his physician, Dr. H.B. Witter, he returned to his job and worked from September 15, 1940, to May 15, 1941, under the same salary arrangement, averaging for the period approximately $190. He performed his services under difficulty and suffered considerably in doing so.
About two or three months before he stopped working for Standard Motor Car Company, he was contacted by Mr. W.L. Manship of Baton Rouge, the proprietor of the City Cycle Company, who was considering expanding his business by installing an automobile body repair department. This contact resulted in an agreement under which McKenzie's salary was to be $40 a week. He started with the City Cycle Company on July 5, 1941, having voluntarily quit work with the Standard Motor Car Company on May 15, 1941, when he had again been placed on compensation and received payments until July 16, 1941.
McKenzie was treated by his personal physician a couple of days after the accident and later, at the instance of the insurance company, by Dr. Battalora of New Orleans. On his last report June 20, 1941, Dr. Battalora diagnosed the case as one of lumbosacral strain and advised the continued wearing of a belt which he prescribed.
In addition to Dr. Battalora, plaintiff had also consulted Dr. Dean H. Echols of New Orleans, a specialist in the field of neurosurgery who called in Dr. Guy A. Caldwell, an orthopedist. Dr. Echols had stated that the claimant had a "rupture of the fourth or fifth lumbar intervertebral disc." An operation was recommended which plaintiff consented to and which was performed on February 26, 1942. No rupture was found but Dr. Caldwell performed a spinal infusion and corrected certain overriding facets which were discovered. Notwithstanding this, on February 1, 1943, almost a year after the operation, and four weeks before he testified, Dr. Caldwell found that there was a 25% limitation of motion in his back and he was not in any condition to regularly do any work involving bending, stooping and lifting. His final diagnosis was that the disability was caused by partial stiffness produced by the spinal fusion operation and the consequent strain on the joints of the level above the fusion. In view of the fact that there seems to be no dispute about the medical testimony, it seems proper to say that plaintiff is, from a legal standpoint, totally and permanently disabled from doing manual labor involving bending, stooping and straining.
As already stated, compensation payments were discontinued on July 16, 1941, until February 25, 1942, one day before the operation just referred to, when it was agreed in writing that the insurer would pay $200 cash for compensation between July 16, 1941, and the date of the operation, in addition would pay up to $750 in excess of the $250 statutory limit for medical expenses and would then resume compensation payments at $20 a week as long as plaintiff appeared to be totally disabled. Under this agreement the cash compensation agreed on was paid as was also the sum of $741.47 in excess of the statutory limit of $250 for medical and hospital expenses, and then, weekly compensation at the rate of $20 from February 24, 1942, until about November 21, 1942, when plaintiff resumed his duties with the City Cycle Company where he has since worked.
As superintendent for the City Cycle Company, plaintiff supervises the men under him, makes estimates on and outlines the repair work to be done on a given job, makes inspections and in emergencies lends his personal assistance. At times he picks up and delivers cars. Generally he acts as foreman and superintendent and runs the shop. Mr. Manship testifies that he knows that McKenzie cannot do any extended manual work and as a matter of fact warned him against doing it. On January 1, 1943, the plaintiff received an increase in salary of from $40 to $45 a week and has been promised 20% of the net profits for the year 1943, if any.
The defendants contend that inasmuch as the present employment of the plaintiff is in the same line in which he has had training and experience since 1917, he is not totally and permanently disabled from doing work of a reasonable character within the meaning and intent of the Workmen's Compensation Law. It is urged that his position as foreman of a body and fender repair shop is merely a higher rating in the trade and constitutes an advancement for the plaintiff in his chosen work, which takes this case...
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