Schneider v. Travelers Ins. Co.
| Decision Date | 01 March 1937 |
| Docket Number | 5408 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | SCHNEIDER v. TRAVELERS INS. CO. et al |
E. W & P. N. Browne, of Shreveport, for appellants.
Harry V. Booth, of Shreveport, for appellee.
A dislocation of plaintiff's left knee resulted when he attempted to lower himself from one scaffold to another while performing the duties of a carpenter in the construction of a building. At the time of the injury, he was in the employ of J. C. Moore, a contractor.
Permanent total disability is claimed by plaintiff in this compensation suit which he instituted against his employer and the latter's insurer, the Travelers Insurance Company. He specifically and definitely invokes the provisions of subsection 1 (b) of section 8 of Act No. 20 of 1914, as amended.
Besides employing allegations that are usual in suits of this nature plaintiff alleges that as a result of the accident and injury he has developed adhesions in his left knee, following the removal of the internal semilunar cartilage, and there has also developed therein a traumatic arthritic condition; and that said knee lacks flexion, is stiff and sore, and presents a permanent hazard and handicap to the following of his trade, which is that of a carpenter. He further alleges a previous accident and injury to his right knee, and that such knee is still sore, thus adding to the degree of his disability.
Defendants, in their joint answer, admit the injury to plaintiff's left knee; deny that he is entitled to any compensation by reason of an injury to the right knee, if any was suffered; deny that he was totally and permanently injured as alleged; and aver that he was only temporarily totally disabled for a period of 24 weeks, and in no event is he entitled to compensation in excess of 20 additional weeks as for 25 per cent. disability and loss of earning capacity during such period. In effect, the answer is a general denial of plaintiff's allegations.
The case was tried on the issues thus created. There was judgment in the district court awarding plaintiff compensation, as for total and permanent disability, at the rate of $ 17.58 per week for a period not to exceed 400 weeks, less the amount of compensation already paid to him, and for all costs.
Defendants then filed a motion for a new trial which was overruled. This appeal resulted.
An admission is found in the record that the defendant insurance company was the compensation insurer of its codefendant, J. C. Moore, and that the policy was in full force and effect at the time of the accident. Furthermore, it is conceded that plaintiff was injured while working in the scope and course of his employment with the named contractor.
In this court, defendant insurance company has filed a motion to remand. It avers therein that plaintiff is suffering from a low grade of arthritis in his left knee due to a focal infection from bad tonsils, teeth, and gums, and that if he submits to a tonsil operation, the extraction of several teeth, and treatment of his gums, the focal infection and arthritic condition will clear up and that from 3 to 6 months thereafter plaintiff will be able to do normal work. These averments are founded on certain expert testimony in the record. It is further alleged that an operation for the teeth and tonsils was tendered to plaintiff, in connection with the above-mentioned motion for a new trial filed in the district court, but that the court refused to consider such tender. A renewal of the tender is then averred, and it prays that the motion to remand be granted and that the case be returned to the trial court for the taking of testimony and a hearing on the question of the legality and appropriateness of the tender.
The case presents three matters for determination: (1) The extent of plaintiff's disability; (2) the particular provision of the Employers' Liability Act under which the disability is to be compensated; (3) the effect of the motion to remand.
Proceeding to a discussion of these items in the order named, we find from the record that the injury to plaintiff's left knee occurred on September 23, 1935, while he was stepping from one scaffold to another. He was 53 years of age at the time. A twist of his leg caused the dislocation or locking of the knee, and for a period of almost 6 weeks he was treated by a general medical practitioner. Upon failure of the limb to respond properly to these treatments, he was sent to an orthopedic surgeon by defendant insurance company. An operation was performed on October 31, 1935, and about three-quarters of the semilunar cartilage and a portion of the attachments were then removed from the knee. Plaintiff remained in the hospital for approximately 8 days. During that time the leg was in a cast. Thereafter, he made periodical visits to the office of the surgeon for examination and treatment. On one of these visits, and before the injury had healed, he stumbled and reinjured the knee.
During or about the year 1924, plaintiff sustained a similar injury to his right knee. An operation was necessary and was then performed.
Expert testimony was furnished in plaintiff's behalf by six physicians. None of these specialized in orthopedic surgery or had performed many knee operations. Almost all, however, had either assisted in or observed operations of that nature. Defendants offered the testimony of Dr. H. A. Durham, a recognized orthopedic surgeon, who operated on plaintiff's left knee; and also that of Dr. B. C. Garrett, a general practitioner, but one who has performed numerous knee operations, including that on plaintiff's right knee, and who was appointed by the district court as an expert to make a physical examination of and report on plaintiff's injury and disability.
All of the above-mentioned experts examined plaintiff either immediately preceding or during the trial of the case, and, although they differed with one another in several particulars, they were in full accord that at the time of their examinations, which took place approximately 9 months after the injury, he was suffering some disability. Various estimates as to the extent of the disability in his left knee were given by them, ranging from 20 per cent. to 35 per cent. It was their unanimous opinion, also, that plaintiff had bad teeth, tonsils, and gums, which produced a focal infection, and that the source of that infection should be removed. They further agreed that when the trial was had the left knee possessed a tenderness and a limitation on its flexion, and that pain was experienced by plaintiff when the knee was flexed beyond 70 or 75 per cent. of full flexion.
Most of plaintiff's experts were of the opinion that the accident combined with the focal infection to cause an arthritic condition in the left knee. Some thought that adhesions had surrounded the joint, thus occasioning a limitation of its motion; and that the right knee was still tender and impaired, and that this aggravated the disability existing in the other knee.
The testimony of Dr. Garrett, together with the report filed by him as an expert appointed by the court, discloses that the right leg is normal, and that plaintiff can bend the knee of that leg as well as ever; that it has good flexion and extension and no disability, although its possessor complains of tenderness there; that the disability in his left knee should improve from "time to time"; that adhesions are there present, but that these should break up and permit normal work in about 3 months; and that at the time of the trial there was flexion in the left knee without pain to the extent of about 70 per cent.
Dr Durham examined the injured man while the case was being tried. According to his finding at that time, there was a three-quarter atrophy of the left thigh caused by disuse. A tenderness existed in the left knee, and plaintiff walked with a limp and probably suffered pain. No...
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