Sykes v. Stout Drilling Co.
| Citation | 124 So.2d 200 |
| Decision Date | 27 October 1960 |
| Docket Number | No. 9266,9266 |
| Parties | Elbert S. SYKES, Plaintiff-Appellee, v. STOUT DRILLING COMPANY, Inc., Defendant-Appellant. |
| Court | Court of Appeal of Louisiana (US) |
Roy L. Price, Metairie, for appellant.
Ellis & Ellis, Rayville, for appellee.
This suit arose out of a claim under the Workmen's Compensation Act by Elbert S. Sykes against his employer, Stout Drilling Company, Inc., and his employer's insurer, Employers Mutual Liability Insurance Company of Wisconsin.
Sykes, a 48 year old man, was engaged as a driller's helper with Stout Drilling Co., Inc., and was so employed on January 18, 1957. There is no dispute that the plaintiff was struck in the eye by a clamp attached to a cable or 'cat line'. This blow caused a detachment and lateral tear of the retina of plaintiff's right eye.
The plaintiff continued to work on this job until January 29, 1957, at which time the work by the defendant employer on this well was completed. During the time he continued to work following the accident, plaintiff suffered with an irritation of the right eye and was referred to Dr. Boles, an ophthalmologist, who performed an operation on him for the correction of a detached retina on February 22, 1957.
Plaintiff remained in the hospital following the operation for a period of four weeks and was required to wear pinpoint glasses for five weeks thereafter. He did not return to work as an oil field worker and subsequently secured employment with the Richland Parish Police Jury as a road worker. Compensation payments were made until May 20, 1958, at which time they were discontinued on the premise that plaintiff's recovery was sufficient to permit him to return to work.
The medical testimony was elicited from Dr. Phillips of Monroe on behalf of plaintiff and Dr. Boles of New Orleans for defendant. It was conceded by all parties that they were well qualified, and both specialized in diseases of the eyes. The testimony of Dr. Phillips showed that he estimated the loss of vision of plaintiff's right eye as being 41--42 per cent. Dr. Boles made the estimate of 20 per cent loss of vision.
The district judge, on sound basis of authorities cited in his opinion, concluded that the plaintiff was totally and permanently disabled from doing oil field work of a hazardous nature. We quote from his written reasons:
'The Court concludes from the cases cited above and others that Mr. Sykes was to all intents and purposes totally and permanently disabled from doing any oil field work of a hazardous nature, such as roughnecking, which was his vocation while employed.'
However, finding that plaintiff had been engaged in, and receiving income from, the occupation of farmer and road maintenance laborer in addition to his income as an oil field worker, he concluded that plaintiff should be compensated on a 'proportionate basis' and therefore limited his judgment to the duration of the disability not to exceed 300 weeks.
The lower court rejected the employee's demands for penalties and attorneys fees under the penalty provisions of the insurance code.
The defendant appealed from the judgment of the court below and plaintiff answered the appeal asking for an amendment to the judgment extending the liability of the defendant to the full 400 weeks for permanent and total disability. By his answer, the plaintiff is again urging his claim for penalties.
The questions presented for determination are: first, the correctness of the trial court's finding of permanent and total disability; second, the correctness of the application of 'proportionate loss' in assessing the liability for payments; and third, the appropriateness of penalties and attorney's fees.
In connection with the questions presented herein for determination, it might also be said that we have before us, in a very strict sense, the interpretation of the Workmen's Compensation Statute. LSA-R.S. 23:1221, sets forth the schedule of payments to be made for various types of injuries, and the pertinent paragraphs thereunder which should be considered in connection with this case are as follows:
'(1) For injury producing temporary total disability to do work of any reasonable character, sixty-five per centum of wages during the period of disability, not beyond three hundred weeks.
'(2) For injury producing permanent total disability to do work of any reasonable character, 65 per centum of wages during the period of disability, not beyond four hundred weeks.
'(3) For injury producing partial disability to do work of any reasonable character, 65 per centum of the difference between wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability, not beyond three hundred weeks.
'(4) In the following cases the compensation shall be as follows:
'(i) For the loss of an eye, sixty-five per centum of wages during one hundred weeks.
'(o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case compensation for an injury to a member exceed the compensation payable for the loss of such member.'
We think that the trial judge was eminently correct in his finding of fact that the plaintiff was totally and permanently disabled to do the type of work that he was doing at the time of the injury, and that this condition was a result of the accidental injury in question. He suffered a serious and permanent impairment of the vision of his right eye. Both of the doctors who testified in the case agreed that the visual impairment was permanent and their only disagreement was to the extent and effect of same. Dr. Phillips, who had examined him regularly, was of the opinion that he could not resume the type of work that he was doing at the time of his injury without being a hazard to both himself and his fellow employees.
There was also some lay testimony from experienced oil field workers that a 'roughneck' with impaired vision would be unable to carry on the varied and dangerous tasks of such work without endangering himself and his fellow employees. The transcript of testimony is replete with evidence to substantiate a finding that the work of a roughneck involves technical skill. He is required to work on the floor of a drilling rig with other men in a team operation, which involves close contact in precision fashion. One mistake on the part of a floor hand, such as putting the giant tongs just below, instead of just above, the joinder of two sections of pipe could very easily result in a disaster to the entire floor gang.
In other words, this case narrows itself down to a question of whether or not an oil field worker, who performs duties of a roughneck, is totally and permanently disabled under sub-section two of the above statute, as a result of an injury, which permanently impairs his vision and makes his continued work in the same type of occupation both dangerous and difficult. We are of the opinion that the question presented in this case has been definitely decided by the Supreme Court of Louisiana, and reaffirmed several times, both by the Supreme Court and our Courts of Appeal. The case that has often been referred to as the 'landmark' of our jurisprudence establishing the rule of total and permanent disability when an employee is rendered unable to return to work on the same, or some similar described work is Knispel v. Gulf States Utility Company, Inc., 1932, 174 La. 401, 141 So. 9, 12. In that case a...
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