Ventress v. Danel-Ryder, Inc.

• Decision Date: 22 May 1969
• Docket Number: No. 2693,INC,DANEL-RYDE,2693
• Citation: 225 So.2d 765
• Parties: Dennis VENTRESS, Plaintiff-Appellant, v., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 765

225 So.2d 765

Dennis VENTRESS, Plaintiff-Appellant, v. DANEL-RYDER, INC., et al., Defendants-Appellees.

No. 2693.

Court of Appeal of Louisiana, Third Circuit.

May 22, 1969.

On Rehearing Aug. 7, 1969.

On Rehearing Aug. 14, 1969.

On Rehearing Aug. 18, 1969.

Taylor & Trosclair, by Frank P. Trosclair, Jr., Opelousas, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe, by James E. Diaz, LaFayette, for defendants-appellees.

Before TATE, SAVOY, and CULPEPPER, JJ.

TATE, Judge.

The plaintiff Ventress appeals from the dismissal of his suit to recover additional workmen's compensation benefits from his employer and its insurer. In October, 1966, Ventress was injured at work as a common laborer. He was paid compensation during disability for five months, until discharged by his attending physician as able to return to work.

The chief issues of this appeal concern whether there is any compensable residual disability.

1.

The facts are as follows: Ventress sustained a severe lumbosacral strain at work. Such an injury consists of a tearing of the ligaments supporting the lumbosacral joint.

Ventress underwent treatment for five months, was discharged, and immediately returned to work. His attending physician noted that he was still complaining of back pain at the time, but Ventress wanted to return to work in view of the absence of objective symptoms. He has been working as a bricklayer ten hours per day at $3.00 per hour consistently since his discharge.

On the other hand, Ventress suffers recurrent episodes of back pain, which do not, however, prevent him from performing the duties of his employment. He likewise feels unable to perform heavy lifting, although he does feel able to perform the continuous stooping and other duties of bricklaying.

Following his discharge by his attending general practitioner, Ventress was examined by two different orthopedists, twice each. Their uncontradicted testimony shows that he does have a permanent residual from his severe lumbosacral sprain which produces the recurrent episodes of pain. The orthopedists concluded this on the basis of the consistency of his localized complaints and of his responses to leg-raising tests, in the light of his history and complaints. Both of these specialists rated Ventress as having a 10% Permanent impairment or loss of function of the back, based upon these recurrent episodes of pain and a continuing susceptibility to reinjury.

Neither of these specialists felt that he was unable to perform the duties of manual labor, either physically or because of substantial pain or substantial possibility of re-injury. However, each was of the opinion that as a residual of the work-accident (partially aggravated by a pre-existing back-instability) the claimant has sustained a definite loss of function, producing temporary soreness of the back after days of work involving with much bending and also producing recurrent episodes of nondisabling pain.

2.

The claimant's attorney ably argues that he is entitled to compensation for either total or partial disability. Th trial court correctly rejected these contentions.

a. Total Disability

A common laborer may be entitled, as suggested, to compensation for total disability if unable to perform the ordinary duties of his occupation without substantial pain, Schram v. Lake Charles Ready-Mix, La.App.3d Cir., 125 So.2d 213, or without substantial susceptibility to re-injury, Mitchell v. Travelers Insurance Co., La .App.3d Cir., 136 So.2d 143, or if his ability to compete for employment in the general labor market has been substantially decreased by the accident-residual, Olivier v. Liberty Mutual Ins. Co., 241 La. 745, 131 So.2d 50. See also, Malone, Louisiana Workmen's Compensation Law, Sections 272, 274, 275 (1951).

Nevertheless, in the present case, the medical experts do not advise against performing heavy labor because of any Substantial susceptibility to reinjury. The medical and lay evidence does indicate recurrent discomfort, but not of a substantial enough nature to be considered disabling nor to but the claimant at a competitive disadvantage in the common labor market. Therefore, the claimant is not entitled to recover benefits for total disability. Ball v. American Marine Corp., 245 La. 515, 159 So.2d 138.

B. Partial Disability

Alternatively, counsel argues that the claimant is entitled at least to an award for partial disability. LSA-R.S. 23:1221 (3) provides that, for partial disability, an injured employee is entitled to receive compensation based upon the difference between wages paid at the time of injury and wages which the injured employee is able to earn thereafter.¹

Scattered awards for partial disability are found where a residual is not substantial enough to be totally disabling, but where nevertheless a residual functional disability results in some slight impairment or reduction of earning capacity, although it does not constitute a competitive disadvantage to employment in the general market. Blanchard v. Pittsburg-Des Moines Steel Co., 223 La. 577, 66 So.2d 342; Stogner v. American Motorists Ins. Co., La.App.4th Cir ., 123 So.2d 655.

We must reject the present claim for partial disability, because no impairment or reduction of earning capacity is shown. The later decisions consider this to be a prerequisite, under the statutory text, for an award for partial disability. White v. United States F . & G. Co., La.App.3d Cir.,158 So.2d 210; Lee v. Royal Indemnity Co ., La.App.1st Cir., 149 So.2d 606, certiorari denied.

Decree

Accordingly, finding no disability, we affirm the judgment of the trial court dismissing the plaintiff's claim.

Affirmed.

On Rehearing.

En Banc.

TATE, Judge.

In his application for rehearing, the plaintiff Ventress for the first time raised the issue that, alternatively to his claim for disability, he is at any rate entitled to an award for the permanent loss of function in his back. See LSA-R.S. 23:1221(4)(p). We granted rehearing to consider this issue.

Although belatedly urged, the record shows that the plaintiff is entitled to such an award.

We reject the argument that this court cannot consider the plaintiff's right to receive compensation for permanent impairment of function because, until the present application for rehearing, the plaintiff had sought an award for disability only. In view of the remedial purposes of the workmen's compensation act, an injured workman's claim will not be dismissed simply because meritorious contentions are raised belatedly. Burk v. Security Insurance Co., 248 La. 177, 177 So.2d 278, 279; Wade v. Calcasieu Paper Co., 229 La . 702, 86 So.2d 540. See also: Crimen v. Fidelity and Casualty Co., 249 La. 1071, 193 So.2d 249. Thus, where compensation for nondisabling residual by way of a permanent loss of function is not sought before the trial court (where only an award for disability is claimed), nevertheless the appellate court should allow compensation for proven nondisabling permanent impairment, if disability is not proved. Eaves v. Louisiana Cypress Lumber Co., 253 La. 741, 219 So.2d 771; Dronet v. American Mutual Liability Ins. Co., La.App.1st Cir., 69 So.2d 114.

In the present case, we find that the uncontradicted medical¹ and lay testimony indicates a permanent residual impairment of back function, which recurrently produces significant pain and soreness upon exertion, and which will do so for the remainder of the plaintiff's life. The uncontradicted medical opinion of 10% Permanent impairment or loss of function of the bak is based upon these recurring episodes of pain, not substantial enough to be disabling (but significant enough to produce real ache and soreness), as well as upon the increased susceptibility to re-injury caused by the work-accident.

The residual is not severe enough to handicap the plaintiff in gaining employment nor to prevent him from performing his duties (except on occasional days of unusual severity). It is, however, a nondisabling residual with which the plaintiff will suffer for the rest of his days, a permanent result of the accident at work. This type of residual arising from permanent impairment of function entitles a claimant to compensation under LSA-R.S. 23:1221(4) (p), in the schedule providing for compensation for specific losses which do not produce total or partial disability.² The cited statutory provision authorizes the court to allow reasonable compensation for a residual 'where the usefulness of a physical function is seriously permanently impaired.'

Under this statutory provision, in circumstances similar to the present, compensation has been allowed for nondisabling residual limitations upon use of a back and nondisabling residual back-pain which result in a permanently weakened back. Ball v. American Marine Corp., 245 La. 515, 159 So.2d 138; Hammond v. Sewerage and Water Board, La.App.4th Cir., 204 So.2d 699; Coffey v. Transport Insurance Co., La.App.4th Cir., 138 So.2d 158; Griffin v. Liberty Mutual Ins. Co., La.App.2d Cir., 131 So.2d 153.

The basis of the award under this statutory section is not disability. It is to allow a limited award for a permanent residual of a work-injury which does not produce disability but which will seriously hinder the employee for the rest of his life. The permanent back soreness of the present case is no less compensable than a nondisabling scar or loss of tenth, other types of nondisabling physical impairments often compensated under this provision. See Courville v. Ashy Construction Co., La.App.3d Cir., 207 So.2d 910 (residual knee pain).

It is a limited award, however. Under this provision, the court may award only one hundred weeks compensation, in either a percentage of up to 65% Of the claimant's wages (not to exceed the statutory maximum weekly compensation, LSA-R.S. 23:1202), or else a fixed amount of between the statutory minimum and the statutory maximum compensation awardable under LSA-R.S. 23:1202, these...