Roberie v. Ashy Const. Co.

• Decision Date: 31 October 1968
• Docket Number: No. 2463,2463
• Citation: 215 So.2d 857
• Parties: Roy ROBERIE, Plaintiff and Appellee, v. ASHY CONSTRUCTION COMPANY, Inc., Defendant and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 857

215 So.2d 857

Roy ROBERIE, Plaintiff and Appellee, v. ASHY CONSTRUCTION COMPANY, Inc., Defendant and Appellant.

No. 2463.

Court of Appeal of Louisiana, Third Circuit.

Oct. 31, 1968.

Rehearing Denied Dec. 5, 1968.

Writ Refused Jan. 24, 1969.

Guillory, Guillory & Guillory by I. J. Guillory, Jr., Eunice, for defendant-appellant.

Daniel J. McGee, Mamou, Andrew Vidrine, Church Point, for plaintiff-appellee.

Before TATE, HOOD and CULPEPPER, JJ.

CULPEPPER, Judge.

The plaintiff, Roy Roberie, seeks workmen's compensation benefits for total and permanent disability resulting from the loss of sight of an eye. The defendant employer is Ashy Construction Company, Inc . The district judge awarded the benefits sought but denied plaintiff's prayer for penalties and attorney's fees. The defendant appealed. Plaintiff answered the appeal, requesting that the judgment be amended to allow penalties and attorneys fees.

There is little, if any, dispute as to the facts. Plaintiff was working as a dragline oiler and helper, assisting in clean-up operations and filling slush pits at the site of an abandoned oil well. He attempted to pull a sack or bag from dried mud. The sack tore open and a substance, later determined to be caustic soda, flew into his face. He suffered a severe chemical burn to his right eye and has permanently lost the sight thereof.

Essentially, defendant contends the work of a dragline oiler and helper is common labor, as distinguished from skilled employment, and that plaintiff will not be substantially handicapped in competing with able bodied workers in the flexible common labor market. Hence, defendant contends plaintiff should be awarded only 100 weeks benefits for the loss of an eye, under the schedule set forth in LSA-R.S. 23.1221(1). Defendant relies on cases awarding only 100 weeks for the loss of an eye to claimants performing common labor.¹

On the other hand, plaintiff contends the work of a dragline helper and oiler is skilled and the loss of the sight of an eye disables him from returning to employment of a similar character. He relies on cases holding a skilled workman is totally disabled if the loss of an eye prevents him from returning to the same kind of employment.² Furthermore, plaintiff takes the position that even if the court finds the work was common labor, he is disabled. He argues that, as a result of the accident, the injured right eye has become abnormally sensitive to sunlight, wind, dust and other irritating substances and, when so affected, causes a sympathetic reaction in the good left eye.

In Anderson v. Rowan Drilling Company, La.App., 150 So.2d 828 (3rd Cir. 1963), writ of certiorari refused 244 La. 222, 151 So.2d 693, we recognized it is often difficult and unrealistic to determine disability to perform 'work of any reasonable character', as set forth in the compensation statute,³ on the basis of a classification of the employment as skilled, semiskilled or common labor. The essence of the inquiry is whether the employee is disabled to do work of any reasonable character within the intendment of the compensation statute. Each case must stand on its own peculiar facts. 'As the extent of skill required in the work performed prior to accident increases, there should be correspondingly increased insistence that the new work closely resembled the old. Nothing more definite than this is possible or practical.' Malone, Louisiana Workmen's Compensation Law & Practice, Chapter 13, Section 275 (1962 P.P., page 118).

In the Anderson case, supra, the plaintiff, 20 years of age, had been working about 14 months as a 'roughneck' on a drilling rig, performing duties both on the floor of the rig and occasionally as a 'derrick man'. He developed a sensitivity to certain chemicals used in the drilling operations. The majority held the evidence showed no particular training, experience or skill was required to perform the duties of a roughneck. The only requirement was that the employee pass a physical examination. Any inexperienced person could go to work immediately as a roughneck if physically able to do so. Under the facts, the majority concluded 'plaintiff was not specially equipped by training and experience to do only the work of a roughneck, particularly in view of the relatively brief period of time he was engaged in that type of work, and thus he was not a 'skilled worker,' as that term as been used in our jurisprudence relating to claims for workmen's compensation benefits.' Benefits were denied.⁴

Let us now examine the particular facts of the present case. The plaintiff, 45 years of age, has only a fifth grade education and has worked most of his life as a farmer. He says he first left the farm and 'worked out' about ten years ago, when he went to New Orleans and worked 'with some engineers' in a cold storage plant. After a few months he returned to the farm.

The next time plaintiff 'worked out' was for the defendant, Ashy Construction Company, about a year and a half or two years before the accident. He worked under a dragline operator, Harry Hawkins, who testified that on that first occasion plaintiff worked a few months and then stopped and went back to the farm for a year. Later he returned to work under Harry Hawkins and had been working about three months when the accident occurred on December 31, 1965. Plaintiff testified the total of both periods of employment as a dragline oiler and helper was nine or ten months.

Plaintiff's duties were as follows: He greased and oiled the moving parts of the dragline and refueled it with diesel, these operations consuming about 15 minutes each day. The rest of the day, he worked under the direct supervision of the dragline operator . When they were clearing drilling sites or rights of ways, he hooked cables on trees to be moved by the dragline. This was described as the most dangerous part of the work because he had to watch for limbs and tree trunks as they were being pulled. When the dragline was digging canals, plaintiff placed stakes on the line to be followed. If the cable to the bucket broke or became fouled, plaintiff helped correct the problem. When moving the dragline, plaintiff assisted in moving the boards which provided a 'board-walk .' On some occasions, plaintiff had to drive the operator's pickup truck to obtain parts, supplies, etc. Generally, plaintiff simply did everything the operator directed him to do.

The evidence does not show that plaintiff was paid any more than 'common-labor' wages. He does not argue that he was paid additional wages for semiskilled or skilled employment.

The dragline operator, Harry Hawkins, testified he considered plaintiff's work was skilled. With reference to training, Mr. Hawkins said that if a man is 'reasonably intelligent * * * you can make an oiler out of him' in about three months. Hawkins says he personally trained the plaintiff and that he was a good dragline oiler.

There is evidence in the record that defendant has three one-eyed employees. Donald Chapman has worked for the defendant for several years as a mechanic and side-boom operator. Howard Latiolais has worked for defendant for 13 years as a mechanic. Ovey Cormier worked as a roustabout for about two years until he reached retirement age.

Applying the law, as set forth in Anderson v. Rowan Drilling Company, supra, to the particular facts of the present case, we think it is clear that the plaintiff was not specially equipped by training or experience to perform the work of a dragline oiler and helper. He was principally a farmer and had only worked for two brief periods, of seven months and three months respectively, as a dragline oiler. Although the dragline operator, Harry Hawkins, said that it took him three months to train plaintiff, we do not consider this to be sufficient to show that special training or experience is necessary for this type of work. The work was very simple and was actually performed by plaintiff without any previous training or experience. The lack of a showing that he received any additional wage above that paid to common labor is, of course, strongly persuasive that the work was not considered skilled or semiskilled.

Under the cases cited in Footnote 1 above, the loss of an eye does not cause total and permanent disability in all types of employment. Here also, the loss of the sight of one eye does not disable the plaintiff from returning to common-labor employment, which is substantially the kind of work he was performing at the time of his injury.

Plaintiff contends alternatively that even if his employment was common labor, he is nevertheless totally and permanently disabled. The argument is: As a result of the accident the injured eye has become abnormally sensitive to sunlight, wind, dust, smoke and other irritants. When thus affected it causes a sympathetic reaction in the good eye, which becomes red and irritated. The resulting pain and discomfort disables plaintiff from performing common labor. Essentially, this is a medical question.

Immediately after the accident on December 31, 1965, plaintiff was seen by a general practitioner in Franklin, Louisiana, who sent him to Dr. Merrick, J. Wyble, an eye specialist in Opelousas. Dr. Wyble diagnosed a severe chemical burn of the right eye and hospitalized plaintiff for about six days. Thereafter he followed the case. Two cornea transplants became clouded and were thus unsuccessful. Since the last transplant, Dr. Wyble has seen plaintiff about once a month to watch for infection and to be sure the good eye does not become involved. The injured eye has not been removed because Dr. Wyble thinks a prosthesis (false eye) inadvisable. The eye is completely white but could be covered by a patch or a colored artificial lense.

As a result of the scarring of the lid of the injured eye, the eyelashes tend to grow inward. About once every two months Dr. Wyble removes a few of these ingrowing eyelashes. All of the lashes could...