Oster v. Wetzel Printing, Inc., 66687

• Decision Date: 10 November 1980
• Docket Number: No. 66687,66687
• Citation: 390 So.2d 1318
• Parties: Mrs. Marie Camps OSTER v. WETZEL PRINTING, INC., et al.
• Court: Louisiana Supreme Court

Page 1318

390 So.2d 1318

Mrs. Marie Camps OSTER v. WETZEL PRINTING, INC., et al.

No. 66687.

Supreme Court of Louisiana.

Nov. 10, 1980.

Sidney F. Braud, Leonard B. Levy, New Orleans, for plaintiff-applicant.

Rene A. Curry, Jr., New Orleans, for defendants-respondents.

DENNIS, Justice.

In this workers' compensation case we must determine if the plaintiff, a sixty-one year old bookbinder whose hand was severely injured in her employer's machine, is unable "to engage in any gainful occupation for wages" within the meaning of La.R.S. 23:1221(2) (Supp.1975) and thus should be awarded compensation for permanent total disability. A commissioner appointed by the trial court determined that the plaintiff, Mrs. Oster, was totally and permanently disabled. Initially the trial court concurred in all respects with the commissioner's report, but subsequently awarded Mrs. Oster only permanent partial disability compensation. The court of appeal decided total temporary disability compensation for a period of 104 weeks should be awarded, otherwise affirming the trial court judgment. We reverse and amend the judgment of the court of appeal to award Mrs. Oster permanent total disability benefits.

In determining whether an employee is permanently and totally disabled, it is not a prerequisite that he be absolutely helpless. If the evidence of his physical impairment and of other such factors as his mental capacity, education, and training indicates that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist, the injured employee is entitled to total disability compensation unless the employer or his insurer is able to show that some form of suitable work is regularly and continuously available to the employee within reasonable proximity to his residence. In the present case, the plaintiff's employment capabilities were severely restricted because of her emotional, educational, and physical limitations, as well as her age, and the employer did not demonstrate the existence of an actual job in the employee's general locality at which she has a reasonable opportunity to be employed. Thus, Mrs. Oster is properly deemed totally and permanently disabled and is entitled to benefits calculated on that basis.

On December 1, 1976, while Mrs. Oster, a sixty-one year old bookbinder employed by Wetzel Printing, Inc., was attempting to unclog a printing machine, a fellow worker restarted the machine. The plaintiff's right hand became entangled in the gears and could not be extracted for roughly one hour. As a result of the incident, Mrs. Oster lost large portions of the index and middle fingers of her right hand and sustained a severe laceration of her ring finger as well.

Wetzel's workers' compensation insurer, United States Fidelity and Guaranty Company, paid the plaintiff benefits of $92.24 per week for 41 weeks. Thereafter, the insurer tendered an offer of $37.98 per week for 107 weeks, corresponding to 41% of the schedule loss for a hand under La.R.S. 23:1221(4)(e) and (o ). The plaintiff refused this offer and filed suit claiming that she was totally and permanently disabled.

The trial judge appointed a commissioner to evaluate the evidence presented and make recommendations. The commissioner made a thorough report in which he determined that the plaintiff was totally and permanently disabled. The testimony heard by the commissioner was given by two orthopedic surgeons, Dr. Stokes and Dr. Licciardi; a psychiatrist, Dr. Diamond; and by the plaintiff, Mrs. Oster.

Dr. Stokes was the treating physician and had close contact with the plaintiff from the date of injury until he discharged her June 6, 1977. He made no further examination of the plaintiff in the intervening period of slightly over one year before trial on August 15, 1978. Dr. Stokes had performed the surgery amputating the portions of the index and middle fingers and stitching the laceration on the ring finger. Upon discharge of Mrs. Oster, he estimated that she suffered a permanent total impairment of the middle finger, 85% impairment of the index finger and 35% impairment of the ring finger of her right hand. Dr. Stokes testified that in his opinion this translated to a 40.5% disability of the right hand. He found that the plaintiff suffered from hypersensitivity, a condition common in amputation cases in which the injured area becomes extremely sensitive and the slightest touch sometimes causes great pain. Dr. Stokes testified that at the time of discharge of Mrs. Oster, her hypersensitivity had diminished and was within acceptable levels, and that he felt the pain would further subside. He recommended that she try to use her hand to find the extent of her disability. He stated the plaintiff was employable "within the confines of her amputation," but did not know what work would be within those confines, nor just what Mrs. Oster's former duties as a bookbinder entailed.

Some nine months after being discharged by Dr. Stokes, Mrs. Oster was seen by a second orthopedic surgeon, Dr. Licciardi, for evaluation purposes. Consistent with Dr. Stokes' findings, Dr. Licciardi found that the impairment of Mrs. Oster's right hand was between 35 and 45% with residual nerve damage and some numbness of the fingers. Contrary to Dr. Stokes' prediction, however, Dr. Licciardi also found that the plaintiff still suffered to a significant degree from hypersensitivity. He noted that the pain generally decreases with time, but did not expect this in Mrs. Oster's case since he examined her well over one year after the accident. This combination of sensitivity and numbness caused a marked lack of coordination, which in his opinion, would preclude Mrs. Oster from performing a job that required the use of both hands.

In addition to plaintiff's physical injuries, Mrs. Oster suffered an emotional problem as the result of the accident. On November 4, 1977, Dr. Diamond, a psychiatrist, examined plaintiff and diagnosed her condition as a post-traumatic psychoneurotic reaction with marked anxiety and depression. According to Dr. Diamond, plaintiff has a marked depression which centers on the present deformity of her hand. She also has acquired a fear of machines and a feeling of being of little worth because of her inability to work. The doctor recommended two years of psychiatric treatment. The plaintiff, however, could not afford to pay the approximately $6240 that such a treatment would cost.

On May 10, 1978, Dr. Diamond again examined Mrs. Oster finding minimal improvement. The plaintiff was still very emotional and depressed. The doctor testified that therapy with individuals over 55 is a slow process and was pessimistic about Mrs. Oster's chances of improvement. In his opinion, Mrs. Oster's ability to return to gainful employment at that time was "zero."

Mrs. Oster testified that she was 61 years old at the time of the accident. She had been employed for 12 years at various printing shops throughout the city, working for the last six and one-half years at Wetzel Printing. Her work at these printing shops, as well as all her previous jobs, required the use of both hands. She had no formal education past one year of junior high school. She testified further that she had trouble doing even simple household chores and believed that, since her trade emphasized speed and production, her old duties were beyond her capabilities. Mrs. Oster testified that her former employer did not contact her after her accident.

Based on the evidence presented to him, the commissioner recommended that the plaintiff be declared totally and permanently disabled. The trial court accepted the findings of evidentiary facts proposed by the commissioner. He concluded, however, that these facts warranted an ultimate conclusion that plaintiff was only partially, permanently disabled.

On appeal to the fourth circuit, the judgment of the trial court was modified. The appellate court held that plaintiff's disability was primarily psychological. In fact, that court disregarded the physical disability noting that "the only disability that this record established would 'hopefully' (if guardedly) be eliminated by two years of psychotherapy." Oster v. Wetzel Printing, Inc., 378 So.2d 195, 196 (La.App. 4th Cir. 1980). Based on this conclusion, the court of appeal awarded plaintiff benefits from temporary total disability for 104 weeks.

The crucial question in this case is one of statutory construction: What degree of impairment disables an employee "to engage in any gainful occupation for wages?" Although the trial court and the court of appeal failed to set forth a definition of inability to engage in any gainful occupation for wages, it is apparent these tribunals thought it requires that an employee be completely helpless or, at least, completely unemployable. We reject this position as being contrary to the aim of the legislation in view of its language, history, and social purpose.

Prior to the 1975 amendment of La.R.S. 23:1221(2), redefining total and permanent disability, the statute provided that a worker would be deemed totally and permanently disabled if he was unable to "do work of any reasonable character." Under the jurisprudential interpretation of this language, an injured employee was found totally and permanently disabled in virtually all cases in which he was no longer able to do the same or similar work as that in which he was engaged at the time of the injury. Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9 (1932). Criticism of the interpretation made by this Court in Knispel and its progeny has surfaced intermittently. For example, Professor Arthur Larson states that in this line of cases Louisiana courts have all but forgotten the normal meaning of total disability while making artificial and contradictory distinctions turning on the similarity of claimant's post-injury occupation...