Reed v. Calcasieu Paper Co.
| Decision Date | 12 November 1957 |
| Docket Number | No. 43475,43475 |
| Citation | 98 So.2d 175,233 La. 747 |
| Parties | Charleston REED v. CALCASIEU PAPER COMPANY, Inc. |
| Court | Louisiana Supreme Court |
Gist, Murchison & Gist, Alexandria, for defendant-appellant.
Robert F. DeJean, Opelousas, for respondent.
A writ of certiorari to the Court of Appeal, First Curcuit, brings this workmen's compensation case before use for review of a doubt entertained by us, aided by the insistence of defendant through allegations in its application, that the holding of said court contravened established law and jurisprudence. The cause was instituted under LSA-R.S. 23:1221(2) for an injury alleged to have produced permanent total disability to do any work of any reasonable character.
Defendant filed an exception of no cause of action which was maintained by the district court. The court of appeal reversed the judgment of the trial court and the cause was remanded for trial on the merits, 80 So.2d 588. We do not deem it necessary to inquire into the correctness of the said judgment of the court of appeal for the reason that the issue raised by said exception involves the merits of this controversy which are now before us.
After a trial on the merits the trial judge rendered judgment in favor of the plaintiff, awarding him compensation at the rate of $30 per week during disability for a period not to exceed 400 weeks, subject to credits for compensation payments of $30 per week from December 8, 1952, through March 6, 1953, with five percent interest on the past-due payments from their due date until paid, which judgment was affirmed by the Court of Appeal, First Circuit, 93 So.2d 263.
The facts of the case are not seriously disputed and we find them to be as follows:
On December 4, 1952, while in the course of his employment as a common laborer handling heavy pulpwood, plaintiff suffered an injury to his right side, diagnosed by the company physician as a right inguinal hernia. On recommendation of the said surgeon the plaintiff submitted to surgery on December 8, 1952, for an hernioplasty which proved successful. In seeking compensation for total and permanent disability plaintiff alleges as a direct consequence of said surgery the formation of scar tissue along the spermatic cord supporting the right testicle, both of which have almost completely atrophied, a condition termed by the operating surgeon as a 'complication.'
Compensation payments at the rate of $30 per week were made to plaintiff from the date of his injury until about March 6, 1953, when he was discharged as capable of returning to work. However, he did not resume his employment as a laborer in the pulpwood unloading department of defendant's company, but became employed as a service station attendant, engaged generally in the performance of much easier work than that previously performed. At the time of the trial he was engaged as a car washer for an auto service station.
The record discloses that laborers employed by the defendant in his lumber yard operations are classified in two groups: the 'labor crew' and the 'labor gang.' In all of these operations both groups perform what is generally accepted as heavy or hard manual labor. A distinction, however, was made by the personal director of defendant when he testified that work performed by the 'labor crew' is continuously and regularly hard and heavy, whereas work performed by the 'labor gang' is generally somewhat lighter, though spasmodically heavier, than that performed by the 'labor crew.'
The said personnel director also testified to the fact that had plaintiff returned to defendant's employment he would not have been able to perform the class of heavy work he had previously performed, but would have been assigned to work other than hard manual labor; that he had knowledge of the fact that plaintiff complained of pain and discomfort and that the company physician had recommended that the plaintiff submit to a second operation to correct the above stated residual disability resulting from the hernioplasty of December 8, 1952.
The record further discloses that plaintiff is and always has been a common manual laborer. He was originally employed in 1950 by the defendant to perform labor in its wood yard. Upon his own request he was transferred from the yard job to that of unloading by hand from railroad cars heavy pulpwood weighing from 40 to 300 pounds, work which was considered the hardest and most strenuous in defendant's operations and which had been regularly performed by plaintiff prior to his hernioplasty. Thereafter he did not return to defendant's employment involving heavy manual labor, but obtained employment as a filing station attendant which entailed far less physical exertion than that required in defendant's employment. He testified that when he performed even this type of lighter work, such as washing cars and performing other duties attendant to the servicing of automobiles, he had substantial pain from the residual disability resulting from the hernioplasty of December 8, 1952. He concedes that the pain is not so acute and severe so as to cause him 'to go to bed' but that the pain is substantial and continuous, requiring the use of mild sedatives.
Plaintiff is a thirty-three year old illiterate person of color with a wife and four children who are dependent upon him for their support and maintenance. He endeavored to discharge his responsibility to them by obtaining this lighter work, earning $30--$35 per week, even though as testified by him he suffered pain in discharging these lighter duties. The veracity of this complaint is corroborated by the testimony of the operator of the service station in which plaintiff was employed for approximately two years that plaintiff, during the beginning of his employment, had complained of severe pain and that thereafter it was obvious that he was enduring pain in the performance of his duties. The defendant attempts to capitalize on the fact that plaintiff's employment as a station attendant was terminated because of dishonesty. It is apparent that the employer attached no serious significance to this act of dishonesty, no criminal complaint having been made in connection therewith; and we deem it immaterial to the issue here presented.
The defendant contends that the evidence does not justify plaintiff's complaint of suffering pain greater than a minor or minimal degree in doing the heaviest types of labor, and that he can do work of reasonable character without suffering substantial and constant pain, and is therefore not totally and permanently disabled.
Our appreciation of the evidence is otherwise. Prior to the hernioplasty plaintiff was capable of performing and did perform for his livelihood heavy manual labor which can be readily described as...
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...distress. * * *' We recognized that fact in Beloney v. General Electric Supply Co., 103 So.2d 491, and cited Reed v .Calcasieu Paper Co., 233 La. 747, 98 So.2d 175. The Supreme Court, in the Reed case, cited many earlier authorities, particularly Brannon v. Zurich General Accident & Liabili......
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...a passing vessel threw him and the skiff into the air. He was injured on landing in the skiff. 5 LSA-R.S. 22:658. 6 Reed v. Calcasieu Paper Co., 233 La. 747, 98 So.2d 175; Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6; Fluitt v. New Orleans, T. & M. Ry. Co., 187 La. 87, 174 So......
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