Smith v. Turner Lumber Co.

• Decision Date: 09 June 1937
• Docket Number: 1706
• Citation: 174 So. 699
• Court: Court of Appeal of Louisiana — District of US
• Parties: SMITH v. TURNER LUMBER CO. et al

174 So. 699

SMITH v. TURNER LUMBER CO. et al

No. 1706

Court of Appeal of Louisiana, First Circuit.

June 9, 1937

Leslie P. Beard, of New Orleans, for appellants.

D. J Sanchez, of Baton Rouge, for appellee.

OPINION

LE BLANC, Judge.

This is a suit against an employer and its compensation insurance carrier brought by an employee to recover compensation for the period of 100 weeks at the minimum rate of $ 3, under the statute, for an injury to his right eye which finally resulted in a 20 per cent. impairment of vision therein, and as alleged in the petition, "in addition thereto," for 13 weeks compensation as "for total, temporary disability by virtue of said injury" at the rate of 65 per cent. of the weekly wage paid, that is 65 per cent. of $ 9.60, or $ 6.24, making the sum of $ 81.12, less the sum of $ 20.65 which had been paid. It had been the contention of the defendants that all plaintiff was entitled to recover as compensation was 65 per cent. of his weekly wage, or $ 6.24 for 20 weeks, that being 20 per cent. of the period of time allowed under the statute for the loss of an eye. Accordingly, it tendered the plaintiff the sum of $ 124,80 which was accepted under reservation of the right to present the claim as it is here made. The prayer of plaintiff's petition therefore is for the sum of $ 300 with interest at 5 per cent. on each week's compensation from the date it was due until paid, less the sum of $ 124.80 already paid and for the sum of $ 81.12, less the sum of $ 20.65.

The case was tried in the lower court on an agreed statement of facts and resulted in a judgment in favor of the plaintiff as prayed for. Both defendants have appealed.

The issues involved call for an interpretation of the compensation statute in two particulars. The first question presented is, Can an injured employee sue for compensation for the specific loss of a member of the body, under subdivision (d) of subsection 1 of section 8 of the statute (Act No. 20 of 1914), as amended by Act No. 242 of 1928, or for the permanent partial loss of the use of function of such member, and "in addition thereto" in the same proceeding, ask for compensation as for total, temporary disability, "by virtue of the same injury" under paragraph (a) of the same subsection? The second question is, Conceding that there is only a permanent partial loss of the use of function of a member and that compensation has to be based on such proportion as the disability bears to the total loss of such member, is that proportion to be fixed according to the wages received by the injured employee or according to the number of weeks for which compensation is allowed for the total loss of the member?

Plaintiff relies on the case of Thornton v. Haynesville Lumber Co. (La.App.) 155 So. 784, 785, which seems to have decided both questions in his favor. In other words, it was therein held that the plaintiff who had suffered an injury similar to the one sustained by the plaintiff here, and which left him with the same degree of impairment of vision in his eye, was entitled to recover compensation at the rate of 20 per cent. of 65 per cent. of his weekly wage for the period of 100 weeks, which is the period of allowance under the statute for specific loss of an eye, and, in addition thereto, he was held entitled to compensation at the rate of 65 per cent. of his wages for the period of 6 weeks and 4 days, "the time he was totally incapacitated from performing work of any character."

It would appear from a reading of its provisions, that the compensation statute itself precludes recovery for temporary total, permanent total, or partial disability under subdivisions (a), (b), and (c) of subsection 1 of section 8 of the act referred to, in addition to compensation for the loss of a member under subdivision (d) of the same subsection, for under paragraph 18 of that subdivision, it is provided that "where compensation has been paid under subdivisions (a), (b) or (c) of this schedule, the amount of such payment shall be deducted from any compensation allowed under subdivision (d) (3)5C of the Section." In other words, compensation cannot be paid twice for the same injury and the employer who has paid the injured employee voluntarily for an injury to a member of the body which at first may have seemed to be one producing temporary or total permanent, or partial disability, is entitled to have what he has paid deducted from the amount he may be decreed to pay by judgment in a suit subsequently brought by the employee to recover for the specific loss or for the loss of the use of function of that member. Compensation under subdivisions (a) (b), and (c) is based on one or another form of disability or incapacity to do work of any reasonable character whereas under subdivision (d) it is based on the loss of a member of the body which may not produce such form of disability or incapacity. A claim under the first three mentioned subdivisions presents a different cause of action from one arising under subdivision (d) and the two cannot be demanded at one time for the same injury. We think that the decision of the Supreme Court in the case of ...