Thomas v. Gates, Inc.

Decision Date30 October 1963
Docket NumberNo. 959,959
Citation157 So.2d 263
PartiesMonroe THOMAS, Jr., Plaintiff and Appellant, v. GATES, INC., Defendant and Appellee.
CourtCourt of Appeal of Louisiana — District of US

Gravel, Sheffield & Fuhrer, by Martin L. Laird, III, Alexandria, for plaintiff-appellant.

C. W. Berry, Jr., Oakdale, for defendant-appellee.

Before SAVOY, FRUGE and HOOD, JJ.

HOOD, Judge.

This is a workmen's compensation suit instituted by Monroe Thomas, Jr., against his employer, Gates, Inc., in which plaintiff alleges that he is totally and permanently disabled as the result of an injury to his left hand. Plaintiff has been paid compensation benefits for a period of 70 weeks, being the amount of compensation provided in the Workmen's Compensation Act for the loss of the index, middle and ring fingers, but defendant denies that plaintiff is totally and permanently disabled or that he is entitled to any other benefits. After trial on the merits, judgment was rendered by the trial court rejecting plaintiff's demands, and plaintiff has appealed.

The sole issues presented on this appeal are: (1) Whether plaintiff is totally and permanently disabled within the meaning of the Louisiana Workmen's Compensation Act; and (2) If so, whether he is entitled to recover penalties and attorney's fees under the provisions of LSA-R.S. 23:1201.2.

On November 1, 1960, plaintiff sustained an injury to his left hand as he was cutting lumber with electrically powered saws during the course of his employment by defendant. The defendant at that time was in the lumber business, and a part of its business included the operation of a sawmill and a mill work factory. Plaintiff was employed by defendant as a common laborer around the sawmill and factory, and at the time the accident occurred he was engaged in 'equalizing' lumber, that is, he placed boards on a movable table and while holding the boards in place with his hands he pushed the table into two power driven circular saws which cut the timber into uniform lengths. While performing this duty his left had accidently came in contact with one of these saws, causing the injury which forms the basis for this claim.

As a result of this accident, it was necessary to amputate all of the ring finger, all of the middle finger and the two distal phalanges of the index finger of plaintiff's left hand. The only digits now remaining on plaintiff's left hand are the thumb, the little finger and a very short stub of the index finger. The back of the hand also was cut severely in the accident, but these cuts healed satisfactorily, and although large, noticeable scars were left there was no residual disability from these particular cuts. The thumb and little finger of the hand have normal range of flexion. The remaining stump of the index finger has full flexion, but it lacks approximately twenty degrees of extension. Plaintiff has only a slight pinch between the thumb and index finger stump, his ability to grasp in that manner being so poor that he has learned to use the thumb and fifth finger (or little finger) almost entirely for holding or picking up objects with that hand. The grasp between the thumb and fifth finger, however, has almost no strength.

Although defendant contends otherwise, we think the evidence establishes that plaintiff developed a neuroma of the stump of the amputated index finger. A neuroma is described by the medical experts as a tumor of nerve tissue. All of the doctors agree that a neuroma is sensitive to touch, and that a person who has a neuroma of the stump of an amputated finger will experience a shooting type pain when that part of the hand comes in contact with an object. This condition is permanent unless the neuroma is removed by surgery.

The trial judge concluded that plaintiff is not totally disabled, but, on the contrary, he found that plaintiff was able to perform all of the duties of his employment by the time the payment of compensation benefits was discontinued. The trial judge, however, made no finding as to whether plaintiff did or did not have a neuroma. He based his decision largely on medical testimony to the effect that plaintiff could perform work which 'didn't require a lot of manual dexterity with his left hand,' and on a finding that plaintiff has never been required to do hard manual labor while working for defendant, he has never adjusted any power tools, the extent of his work was limited to feeding boards to a power saw, he handled only light lumber, and no skill and very little manual effort was required in the performance of his duties.

We have concluded that plaintiff does have a neuroma of the stump of the index finger of his left hand, and we think the fact that he suffers pain when that part of his hand comes in contact with an object is an important factor to consider in determining whether he is disabled.

We agree with the trial judge that plaintiff was an unskilled laborer and that he has never adjusted any power tools, but we are unable to agree with the finding that 'plaintiff has never been required to do hard manual labor while working for defendant,' that 'the extent of plaintiff's work was limited to 'feeding' boards to a power tool described as an equalizer,' and that plaintiff handled only light lumber. The principal stockholder of the defendant corporation testified that plaintiff had been employed by defendant to do 'general common labor' around the sawmill and the mill work factory. We find no testimony which specifies the various types of work which a common laborer is required to do in that business, but since heavy pieces of lumber are customarily handled in sawmills we assume that a common laborer around a sawmill is required to perform at least some heavy manual labor. It is true that at the time the accident occurred plaintiff was feeding boards into the equalizer saws, and that the saws were then set 10 inches apart in order that the boards would be cut into 10-inch lengths. There is nothing in the record, however, to show that plaintiff's work was limited to feeding boards into this power tool, or that the boards were always cut into such short lengths. Also, there is nothing to indicate the length or size of the boards which plaintiff was required to place on the table to be fed into the saws, and thus there is no indication as to whether they consisted of heavy pieces of timber or very small strips of wood.

After considering all of the evidence, we are convinced that as a common laborer around the sawmill and mill work factory plaintiff was required to do some hard manual labor, that his work was not limited to feeding boards into the power tool described as an equalizer, and that even in feeding boards into this machine some strength and dexterity in plaintiff's hands were required.

Plaintiff was treated by Dr. Joel J. Holiday from the date of the accident until he was discharged on December 21, 1960, as being able to return to work. Although Dr. Holiday had not discovered a neuroma by the time he discharged plaintiff, he indicated that such a condition could develop later. He testified that in his opinion plaintiff has sustained 15 to 20 percent disability of the 'body as a whole,' as a result of this hand injury. This estimate of disability was based on the doctor's assumption that plaintiff did not have a neuroma, and he testified that 'the man has more disability with a neuroma than without it.'

Plaintiff was examined on March 12, 1962, by Dr. Robert Pierce Foster and by Dr. William Headley Heath, Jr. Both of these specialists concluded that a neuroma had developed in the stub of the amputated index finger, and that because of this development plaintiff experiences pain when his hand hits or strikes an object.

Dr. Foster testified that 'from the functional standpoint there is 75 to 80 percent permanent loss of the upper extremity.' He stated that 'this man will never be able to do any heavy work with his hand or any real type,' and that 'this man is...

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17 cases
  • Roberie v. Ashy Const. Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • 31 Octubre 1968
    ...is considered totally disabled if he is unable to work without enduring substantial pain and suffering. See Thomas v. Gates, Inc., La.App., 157 So.2d 263 (3rd Cir. 1963) and the authorities cited therein. We conclude that plaintiff is permanently and totally disabled from returning to the t......
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    ...6 (La.App.4th Cir. 1961).5 Lavergne v. Southern Farm Bureau Casualty Ins. Co., 171 So.2d 751 (La.App.3d Cir. 1965); Thomas v. Gates, Inc., 157 So.2d 263 (La.App.3d Cir. 1963).6 Ball v. American Marine Corporation, 245 La. 515, 159 So.2d 138 (1963); Glidden v. Alexandria Concrete Company, 24......
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    ...Andrus v. A.B.C. Rendering Co., 178 So.2d 70 (La.App.3rd Cir. 1965), writ refused, 248 La. 431, 179 So.2d 273; Thomas v. Gates, Inc., 157 So.2d 263 (La.App.3rd Cir. 1963). Quite appropriate to the facts of this case is the foregoing language of this court used in Young v. Southern Casualty ......
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