Sanders v. Boh Bros. Const. Co., Inc., 4752
| Decision Date | 27 November 1974 |
| Docket Number | No. 4752,4752 |
| Citation | 304 So.2d 812 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Willie Roosevelt SANDERS, Plaintiff-Appellant, v. BOH BROS. CONSTRUCTION CO., INC., and the Travelers Insurance Co., Defendants-Appellees. |
Young & Burson by I. J. Burson, Jr., Eunice, for plaintiff-appellant.
Dubuisson, Brinkhaus, Guglielmo & Dauzat by Jimmy L. Dauzat, Opelousas, for defendants-appellees.
Before FRUGE , MILLER and DOMENGEAUX, JJ.
This is a workmen's compensation suit by the plaintiff for permanent and total disability benefits allegedly due by reason of an accidental injury sustained during the course and scope of his employment with the defendant construction company on September 24, 1970. After a trial on the merits judgment was rendered in favor of the defendant-company and its insurer. Plaintiff prosecuted this appeal from that judgment.
The facts are that on the aforementioned date plaintiff was employed as a common laborer for Boh Brothers Construction Company in St. Martin Parish. Specifically, the company was engaged in the construction of Interstate Highway 10 in the Henderson, Louisiana, area. The accident occurred when a bulldozer pulled an H-beam over plaintiff's left leg causing a severe injury to the left ankle.
Plaintiff was immediately taken to Gary Memorial Hospital in Breaux Bridge, Louisiana, where he was examined and treated by Dr. Ernest M. Yongue, a general practitioner and surgeon. The initial examination and x-rays indicated that plaintiff had sustained very severe fractures of the ankle in several places in addition to having a dislocation thereof. The following day reducation and fixation surgery was performed on the ankle which included the insertion of two screws to correct bone displacement. Plaintiff was subsequently hospitalized for thirteen days and remained in a cast for approximately six weeks. Thereafter he continued under the care and treatment of Doctor Yongue until his release on June 25, 1971.
On September 17, 1971, Sanders was examined by an Opelousas orthopaedist, Doctor Ladislas Lazaro, III, who noted in regard to the left ankle (1) that plaintiff favored same when walking; (2) that it was approximately 1/2 inch larger than the right ankle; (3) limitation of motion; (4) medial laxity caused by a loose ligament inside the ankle; and finally (5) a 'clicking' sound and 'narrowing' in the joint space. Thereafter on November 3, 1971, the doctor surgically removed the fixation screws which had been originally inserted in plaintiff's ankle. The plaintiff was subsequently discharged on November 26th.
Thereafter plaintiff was examined by two orthopaedic surgeons, Dr. J. W. Ambrister of Lake Charles on January 26, 1972, and Dr. Fred C. Webre of Lafayette on July 24, 1972.
Doctor Ambrister found (1) plaintiff could walk without a noticeable limp; (2) the left ankle was visibly enlarged with a limited range of motion; (3) x-rays revealed some instability (play from side to side) in the ankle joint; (4) pulses at the ankle region were palpable upon touch; and (5) minimal crepitus (grating of the joint) was present.
Doctor Webre, upon examination, found (1) that plaintiff walked without an apparent limp; (2) no widening of the ankle; (3) narrowing of the joint space; (4) 15% Limitation in dorsiflexion of the foot; and (5) no evidence of instability in the ankle joint.
Workmen's compensation benefits at the rate of $49.00 per week, in addition to medical expenses, (in the amount of $1,934.31) were paid the plaintiff by Travelers Insurance Co. from the date of his accident until August 11, 1972 (approximately 100 weeks). At the latter date benefits were terminated on the basis of a written report received by the insurer from Doctor Webre on August 10, 1972, to the effect that plaintiff could return to work in his previous employment without suffering substantial pain or discomfort.
Plaintiff subsequently filed this suit on September 26, 1972, for recovery of total and permanent disability benefits, medical expenses, and penalties and attorney's fees.
The case was tried on December 7, 1972, and a judgment later rendered in defendant's favor. The trial judge ruled in effect that plaintiff's injuries did not render him totally and permanently disabled under the Workmen's Compensation Act. He found that plaintiff's residual pain was only 'mild and occasional' and that the loss or restriction in regard to plaintiff's ankle, occasioned as a result of the injury, did not substantially handicap him in the common labor market.
The only issue before this court is whether the plaintiff is permanently and totally disabled to do work of any 'reasonable character' within the meaning of the Workmen's Compensation Act (LSA R.S. 23:1221(2)).
In this regard we must first turn our attention to the medical testimony presented at trial (which with the exception of Doctor Lazaro was taken by deposition).
As aforementioned, plaintiff's initial treating physician, Dr. E. M. Yongue, last saw the plaintiff on June 25, 1971. At this point in time he evaluated plaintiff's permanent disability to be 20% (T.24), due to limitation of motion in the left ankle, (T.25), the severe separation and tearing of the ligaments, (T.34), in addition to the fact that plaintiff would be restricted in its use because of fatigue and pain encountered after prolonged standing (T.33). The doctor also stated the following in regard to the disability.
(T.24--5)
Doctor Yongue further indicated that walking over uneven ground and prolonged standing would cause the plaintiff difficulty (T.25).
On the question of the degree of pain the plaintiff would expect to experience, the doctor stated that he felt the plaintiff could return to his work but not without suffering 'substantial pain or discomfort' to the ankle (T.27). He reiterated his position further in his testimony by indicating he would expect a man who had an injury as severe as that of plaintiff's to have 'significant residual pain' (T.36). The doctor further indicated that any type of laboring job would cause the plaintiff discomfort in the ankle but that the type of work he was doing at the time, i.e. walking on uneven ground and things of that nature, would make his discomfort greater (T.31--2). He indicated plaintiff might even have serious difficulty in driving a large truck (T.32). The doctor, however, at other points in his deposition used language such as 'some pain'; 'his ankle is going to hurt him some' (T.27); 'possibly some aching' upon prolonged standing (T.25) in describing plaintiff's pain factor .
Doctor Yongue also stated clearly that he thought plaintiff would be handicapped (as compared to a person who had not had this injury) in performing common labor (T.26). He based this opinion on the fact that the disability in the ankle and resulting discomfort might be periodically severe enough to prevent Sanders from attending his work regularly as he should and that as a result he might encounter a problem retaining employment (T.30).
In addition the doctor indicated that a person with a severely dislocated ankle, such as plaintiff's, was more likely to have future arthritic trouble than one who had not sustained such an injury (T.37--8).
Dr. Ladislas Lazaro, III, also stated that plaintiff could return to his former work as a common laborer (or at least certain jobs listed by defendants' counsel) but stated that the ankle joint would have some symptomatology with doing the work (T.173--4). He classified plaintiff's injury as a 'very severe fracture' (T.166). He explicitly stated however that he would not like to see the plaintiff attempt doing work at heights on a slim platform (T.175). The reason for such a preclusion was the fact that plaintiff's ankle had a tendency to give way thereby putting the plaintiff in a hazardous position (T.182). The doctor indicated that this giving way was very probable in the future, (T.182), and that it was likely such would occur several times a day merely when the plaintiff put his foot down on an unlevel surface as plowed ground (T.186). In summary, he stated he felt plaintiff was employable but that he had certain limitations on his ankle revolving around the fact that it was not completely trustworthy (T.187--8).
The doctor also was of the opinion that plaintiff would have a 20% Permanent physical impairment of the function of the ankle joint as a whole (T.167). The doctor explained the mechanics of the disability as loss of the joint surface (T.163), resulting instability in the ankle joint, limitation of motion (T.166, 169) and a mild to moderate degree of arthritis (T.181), with an expectation of progressive arthritis (T.169).
On the question of pain, the doctor described the amount Sanders could expect after a day on his feet as 'moderate' (T.182); 'an ache or discomfort with performing these things' (T.182); 'he would have pain but he could do it'; 'he would not have severe, exruciating pain that would just require him to absolutely stop'; 'during his work period he would feel discomfort and pain in the ankle' (T.184).
Doctor Lazaro also was of the opinion that the plaintiff would be definitely handicapped (although not substantially, with the exception of 'beam walking') in comparison to a laborer who had not sustained an injury in performing functions demanding speed, agility, or any kind of quickness or motion on his feet (T.174). This was based mainly on the likelihood of plaintiff's ankle 'giving way' (T.182, 185--6). The doctor also indicated plaintiff would...
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