Ousley v. Employers Mut. Liability Ins. Co. of Wis.
| Decision Date | 31 May 1960 |
| Docket Number | No. 5062,5062 |
| Citation | 121 So.2d 378 |
| Parties | Arthur OUSLEY, Plaintiff-Appellee, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
J. Minos Simon, Lafayette, for appellant.
Voorhies, Labbe, Voorhies, Fontenot & Leonard, Lafayette, for appellee.
Before TATE, MILLER and PUGH, JJ.
The defendant insurer appeals from an award of compensation to the plaintiff for a facial disfigurement. The plaintiff answers the appeal, requesting chiefly penalties and attorney's fees for an allegedly arbitrary non-payment of compensation by the insurer.
The present suit is to recover compensation only under LSA-R.S. 23:1221(4)(p) of our compensation act, which provides:
'In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, * * *, the court may allow such compensation as is reasonable and as in proportion to the compensation herein above specifically provided in the case of specific disability, not to exceed sixty-five per centum of wages during one hundred (100) weeks.'
Trial of the claim was held on November 25, 1959, almost a year after the accident. After viewing the claimant and receiving two photographs of his face in evidence, the trial court awarded the plaintiff compensation at the rate of ten dollars per week (the minimum weekly compensation allowable, LSA-R.S. 23:1202) for the period of 100 weeks provided by the quoted statutory section.
In seeking reversal of the award, the appellant chiefly contends that the scar is small and not seriously disfiguring. For, as Professor Malone has summarized in his authoritative treatise, Louisiana Workmen's Compensation (1951) Section 283, pp. 362--3:
In the photographs in the record the scar is evident, although not large or unusually pronounced. However, a scar on the face which significantly mars the natural facial expression and is such as to attract attention is a facial disfigurement compensable under the above-quoted provision. See Dickson v. United States Sheet & Window Glass Co., 2 Cir., 3 La.App. 83. On the basis of this record, which contains only stipulations as to the accident and...
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...to be a distinction without a substantive difference. Among other cases worthy of note is Ousley v. Employers Mutual Liability Ins. Co. of Wis., 121 So.2d 378 (La.App.1960), where the court was dealing with a statute allowing a worker recovery when he was 'seriously permanently disfigured a......
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...claim for Some compensation arising out of their loss. The present situation is thus distinguishable from Ousley v. Employer's Mutual Liability Ins. Co., La.App. 1 Cir., 121 So.2d 378, where penalities were not allowed for the failure to tender compensation for a slightly disfiguring scar, ......
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...39 (La.App. 1st Cir.1961), (acid burns; disfigurement is serious and permanent, award justified); Ousley v. Employers Mutual Liability Ins. Co. of Wis., 121 So.2d 378 (La.App. 1st Cir.1960), [cites Malone, Louisiana Workmen's Compensation § 283, pp. 362-363 (1951), re: requirement that inju......