Murry v. Southern Pulpwood Ins. Co.

• Decision Date: 11 December 1961
• Docket Number: No. 433,433
• Citation: 136 So.2d 165
• Parties: Clyde T. MURRY, Plaintiff-Appellant, v. SOUTHERN PULPWOOD INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 165

136 So.2d 165

Clyde T. MURRY, Plaintiff-Appellant, v.SOUTHERN PULPWOOD INSURANCE COMPANY, Defendant-Appellee.

No. 433.

Court of Appeal of Louisiana, Third Circuit.

Dec. 11, 1961.

Rehearing Denied Jan. 15, 1962.

W. T. McCain, Colfax, for plaintiff-appellant.

Hiram J. Wright, Winnfield, for defendant-appellee.

Before TATE, SAVOY and HOOD, JJ.

TATE, Judge.

This is a suit by an injured employee to recover workmen's compensation benefits from his employer's insurer.The claimant appeals from judgment awarding him compensation for temporary total disability and for loss of a finger, and also awarding him statutory penalties for the arbitrary nonpayment of compensation.¹

By his appeal, the plaintiff principally contends that the award should be for total and permanent disability, that is, for 400 weeks during disability; and he asks for a greater amount of penalty attorney's fees.

The evidence shows that the plaintiff Murry was employed by the defendant's insured to cut and haul pulpwood logs.Murry's remuneration was sufficient to entitle him to receive workmen's compensation during disability at the maximum statutory rate of $35 weekly.The end of the middle finger of Murry's left hand was crushed at work on August 10, 1960.

Murry was treated by the employer's physician through January 7th, 1961, when he was discharged for return to work as having reached maximum improvement.The preponderance of the medical evidence also shows that, as a residual from the injury, the end of the injured finger is extremely sensitive and painful to touch, and that the injured finger itself is stiffened and greatly restricted in motion, so that the plaintiff has suffered a loss of grip in the left hand.The medical witnesses relied upon by the defendant to show no residual disability, a general practitioner and an orthopedist, did not, in evaluating disability, seem to take into consideration the extreme sensitivity of the end of the injured finger (see e.g., Tr. 153, 157), exceedingly red in comparison to the normal appearance of the other skin; their testimony does not preponderate over that of the other medical witnesses--an orthopedist, a neurosurgeon, and a general physician--concerning the loss of function of the hand through the painfulness upon use and the stiffness of the injured finger.

The preponderant medical evidence also shows that this residual disability may probably be relieved by amputation preferably of the entire metacarpal bone from its base near the wrist together with the entire injured finger.

The trial court awarded the plaintiff compensation for temporary total disability between August 10, 1960(the date of the accident) and January 7th, 1961(the date of the plaintiff's discharge by the company physician).In addition, the plaintiff was awarded an additional twenty weeks compensation beyond January 7th, for the total loss of the injured finger under the specific loss schedule, LSA-R.S. 23:1221(4)(c).

The plaintiff contends, correctly we think, that our learned trial brother was in error in not awarding additional compensation for total and permanent disability instead of only for the loss of the finger.At the time of trial, due to the loss of use of the left hand because of loss of grip and the extreme sensitivity of the injured finger, the claimant was unable to perform the duties of the occupation in which injured, which the evidence shows required the use of both hands in cutting and handling the logs and in using the tools of the occupation.

Our settled jurisprudence is that 'whenever the worker can show that he was wholly or partially disabled he is entitled to compensation for the period provided in the disability provisions of the Act, even though his disability arose from one of the specific losses set forth in the schedule,' Malone, Louisiana Workmen's Compensation Law and Practice (1951), Section 279, p. 352.Our courts have thus consistently awarded compensation for total disability to logging and other employees when, through residual injury to one or more fingers, the employee's loss of use of his hand prevents him, through substantial pain or otherwise, from being able to perform the usual and customary duties of the occupation in which injured.Bean v. Higgins, 230 La. 211, 88 So.2d 30;Viator v. Hub City Contractors, Inc., La.App. 1 Cir., 116 So.2d 878;Green v. Harper, La.App. 2 Cir., 103 So.2d 474;Todd v. Sunnyland Contracting Co., La.App. Orl., 85 So.2d 537;Scott v. Fulton Bag & Cotton Mills, La.App.Orl.65 So.2d 397.

Although a total disability might be relieved by an operation, nevertheless a disabled plaintiff's compensation may not be limited or terminated upon the speculation that such unperformed operation might end the disability.Sumrall v. J. C. Penney Co., 239 La. 762, 120 So.2d 67;Duplechien v. States Exploration Company, La.App. 1 Cir., 94 So.2d 460;Leday v. Lake Charles Pipe & Supply Co., La.App. 1 Cir., 185 So. 655.As the Supreme Court recently stated in the cited Sumrall decision, 'even though an employer may have cause to believe that the employee's disability may be removed by surgery, the employer cannot ex parte terminate the payment of compensation upon the refusal of the employee to submit to surgery * * *.The question whether an employee's refusal to submit to surgery is reasonable is not a medical question, but a legal question to be determined by the court under...