Walters v. General Acc. & Fire Assur. Corp.

• Decision Date: 21 March 1960
• Docket Number: No. 4989,4989
• Citation: 119 So.2d 550
• Parties: Lonnie T. WALTERS v. GENERAL ACCIDENT AND FIRE ASSURANCE CORPORATION, Ltd.
• Court: Court of Appeal of Louisiana — District of US

Page 550

119 So.2d 550

Lonnie T. WALTERS v.GENERAL ACCIDENT AND FIRE ASSURANCE CORPORATION, Ltd.

No. 4989.

Court of Appeal of Louisiana, First Circuit.

March 21, 1960.

Rehearing Denied April 25, 1960.

Talley, Anthony & Hughes, Bogalusa, for plaintiff-appellant.

A. J. Jones, Bogalusa, for defendant-appellant.

Before ELLIS, LOTTINGER, TATE, FRUGE and LANDRY, JJ.

LANDRY, Judge.

PlaintiffLonnie T. Walters, a civil service employee of the City of Gogalusa, under the classification of 'Fire Driver', instituted this action against defendantGeneral Accident and Fire Assurance Corporation, Ltd.(compensation insurer of the City of Bogalusa), to recover Workmen's Compensation benefits for disability resulting from an injury to his right leg and ankle (particularly the ankle) sustained in an accident which occurred December 23, 1955, during the course and within the scope of plaintiff's employment by the city.The action is brought directly against the compensation insurer; the employer was not made a party to these proceedings.

In his petition plaintiff prays that he be declared totally and permanently disabled and awarded compensation at the rate of $30 per week, not to exceed 400 weeks, commencing December 23, 1955, with interest of 5% On all past due weekly installments from due date, until paid, and the sum of $10,000 for medical expense incurred or to be incurred, ¹ together with $5,000 penalties and $3,000 attorney's fees because of defendant's arbitrary and capricious refusal to pay medical expense incurred and compensation payments due.

The evidence is virtually undisputed and shows that plaintiff, as alleged, was injured on December 23, 1955, while fighting a fire in the City of Bogalusa, following which injury he was paid his regular salary of $330 per month by the city and also compensation at his admittedly correct rate of $30 per week until June 1, 1957, during which interval he performed no work whatsoever.²From June 1, 1957, to September 1, 1957, plaintiff received only compensation at the rate of $30 weekly.During the interval between June 1, 1957, and September 1, 1957, the city authorities notified plaintiffhe would either have to resign his position or return to work.On some undisclosed date prior to September 1, 1957, plaintiff made application for reinstatement to his former position in pursuance of which, on September 1, 1957, he was reinstated under the classification of Fire Driver effective May 31, 1957, at a salary of approximately $350 per month which he received from September 1, 1957, until the filing of this suit on May 17, 1958.

Defendant discontinued weekly compensation payments when plaintiff returned to work on September 1, 1957.Defendant has also refused to pay any medical expense incurred by plaintiff since September 1, 1957, because defendant contends plaintiff's disability did not extend beyond said date.In the lower courtdefendant filed a plea of prematurity and exceptions of no cause and no right of action which were not argued or passed upon in the lower and are not urged on this appeal and, therefore, must be considered abandoned.

After trial on the merits, the learned trial judge rendered judgment in favor of plaintiff adjudging plaintiff totally and permanently disabled and awarding plaintiff compensation at the rate of $30 per week, not to exceed 400 weeks, with interest on past due weekly installments at 5% Per annum from due date, until paid, subject to a credit of $30 per week for the period December 23, 1956 to May 31, 1957(during which interval plaintiff received full wages from the city in addition to compensation from defendant) and further credit in the amount of $30 weekly during the period December 23, 1955 to September 1, 1957, in which defendant paid weekly compensation benefits of $30.In addition, the trial court allowed defendant credit for wages paid by the city subsequent to plaintiff's reinstatement of September 1, 1957, on the finding such wages were unearned and, therefore, constituted payments in lieu of compensation.Plaintiff was also awarded the sum of $350 as Attorney's fees.

In his brief counsel for plaintiff concedes plaintiff's appeal is limited to consideration of the correctness of the trial court judgment granting defendant credit for wages paid subsequent to September 1, 1957 and plaintiff's request for an increase in the amount of attorney's fees awarded.

Defendant has appealed that portion of the judgment decreeing plaintiff totally and permanently disabled and denying defendant credit for wages paid by the city from December 23, 1955 to December 23, 1956, in conformity with the provisions of LSA-R.S. 33:1995.In this connection, defendant maintains that payment of plaintiff's full salary by the city for the year next succeeding plaintiff's injury, although paid pursuant to the aforesaid statutory provision was neverthless gratuitous and should be credited against compensation due.On this issue plaintiff contends the payments made in accordance with the statute were forced or compulsory as differentated from voluntary payments and, therefore, the learned trial judge properly held such payment of wages should not be permitted to constitute a credit against compensation payable.Finally, defendant contends the constitution of this state provides ³ that an applicant for reinstatement to a formerly held civil service position must prove physical fitness as a prerequisite to classified reemployment consequently plaintiff is barred or estopped from claiming disability beyond June 1, 1957, on which date he was reclassified as a Fire Driver.

Although counsel for plaintiff in brief announces the question of plaintiff's disability was not appealed we cannot agree with that statement considering defendant has presented this particular question both in oral argument and brief.

Plaintiff's duties as Fire Driver consisted of driving ponderous fire trucks and mobile equipment to the scene of a fire and there assisting in the control of the fire as directed by his suprior officers.His work in such capacity requires soundness of limb in that considerable strength is needed to steer and control the large trucks and apply the brakes thereof when necessary.In addition, in combatting fire, he is often required to enter burning buildings, climb ladders and walk through debris which is admittedly strenuous and hazardous work.It further appears that a Fire Driver spends only approximately 5% Of this time in actually fighting fires, the additional 95% Being spent in and about the fire house or station and being devoted to the maintenance and care of the fire station, fire trucks, equipment and answering the telephone.It is undisputed that since his return to work plaintiff has been unable to actively participate in the fighting of fires and that his activities have been confined exclusively to work in and about the fire station.

The testimony shows that plaintiff, a rather large individual standing approximately 6 feet 3 inches in heighth and weighing approximately 230 pounds, sustained severe injury to his right ankle in the course of his employment following which he was hospitalized.Nine days subsequent to his injury his right leg and ankle were placed in a cast which was removed shortly thereafter because of pain and inflammation resulting from its application.While in the hospital plaintiff was seen by Dr. L. L. Lancaster who attended plaintiff from the date of his injury until April 28, 1958, during which interval several casts were applied and removed and plaintiff administered innumerable physical therapy treatments.Dr. Lancaster examined plaintiff for the last time on January 5, 1959.He testified as a witness and stated that on the occasion of his last examination he found plaintiff still complaining of pain in the ankle and noted the ankle to be unstable.Dr. Lancaster was of the opinion plaintiff had attained maximum recovery but that plaintiff was still unable to perform the arduous services required of a Fire Driver.

Dr. Irving Redler, an Orthopedist, examined plaintiff on April 6, 1956, upon referral from Dr. Lancaster.At this time plaintiff was walking with the aid of crutches and Dr. Redler found the right ankle painful and inflamed to the extent it was 3/4 inches larger than the left.Dr. Redler also noted atrophy of the right calf to such degree it was 3/4 inches smaller than the left.At this time Dr. Redler was of the opinion plaintiff should fully recover within six months.On June 14, 1956, plaintiff returned to Dr. Redler in a walking cast and without the aid of crutches.Plaintiff consulted Dr. Redler again on June 18, 1956, on which date plaintiff's cast had been removed.On this latter occasion Dr. Redler found both the pain and swelling considerably reduced and plaintiff able to get about with comparative ease.Dr. Redler again saw plaintiff in May, 1957 and noted a remarkable improvement in that plaintiff then had only a slight residual disability which Dr. Redler attributed to atrophy of the thigh and leg muscles.In essence, Dr. Redler concluded plaintiff sustained a 10% Disability of the lower right extremity and considered plaintiff able to resume his former employment.He was also of the opinion that use of the limb would promote further improvement.

Dr. Rufus H. Alldredge, an Orthopedist, testified plaintiff first visited him on July 27, 1956, pursuant to the recommendation of Dr. Lancaster.He stated he has seen plaintiff a total of 24 times in addition to numerous visits to his office when plaintiff was administered physiotherapy treatments.Because of plaintiff's size and weight, the existence of a congenital deformity in plaintiff's feet and the injury, Dr. Alldredge found plaintiff to be suffering from a 25% Disability of the extremity involved and deemed plaintiff disabled from performance of the duties incumbent upon a fire driver.

It is an elementary legal proposition that the...