Watson v. Floyd Elec. Co.
| Decision Date | 06 October 1954 |
| Docket Number | No. 3869,3869 |
| Citation | 75 So.2d 361 |
| Parties | Eugene A. WATSON v. FLOYD ELECTRIC COMPANY, Inc. et al. |
| Court | Court of Appeal of Louisiana — District of US |
Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellants.
Burton & Roberts, Baton Rouge, for appellee.
Plaintiff, on February 16, 1953, while performing services arising out of, incidental to and during the course, business and trade of defendant, suffered a compression fracture of the twelfth lumbar vertebra when he was kneeling down and a creosoted line pole rolled off a trailer truck and fell upon him. He was immediately taken to a Baton Rough Hospital and placed under the care of Dr. Moss M. Bannerman, an orthopedic specialist. Plaintiff was placed on a bed so that his back was reversed in its normal position, and he was bent backward at the side of the fracture, with his shoulders and hips going back and pressure applied on the fractured side. About a week after the injury, plaintiff was given surgery and his back was forcibly reduced and a cast applied. An X-ray was made after the reduction, which showed excellent re-expansion of the previously compressed body. He remained in this case for about two months and a half, and after which time a brace was applied and which the plaintiff wore for about three months and during which time the plaintiff received exercises to strengthen his lower back. X-rays were made of plaintiff's spine after he had been in the brace for some time and they reflected healing with some loss of the previously gained expansion. The brace was removed and the exercises continued, and by the middle of July, 1953 it was thought plaintiff could return to light work. At that time plaintiff had full range of motion of his back and experienced no pain while wearing the brace. He was seen by the attending physician intermittently for an additional period of two months, or until September 24, 1953, at which time the attending physician thought that he was able to resume his employment as an electrician's helper, and he so notified the defendant and its insurance carrier, the Maryland Casualty Company. Plaintiff's compensation was discontinued on that date. He did not return to his former work, and has not performed any work since the accident.
On October 5, 1953, or about ten days after he was discharged by the attending physician as able to resume his work, he filed this suit without being examined by another physician.
He claims compensation for total disability, based upon the fact that he is not able to perform all of the work required of him as a 'grunt', the term used in the trade to refer to an electrician's helper, together with legal interest on past due instalments of $30. per week, as well as 12% penalty and attorney's fees of $1,000, against the compensation insurer, Maryland Casualty Company.
The defense to the suit is that plaintiff had fully recovered from the accidental injuries suffered by him on February 16, 1953; that at the time plaintiff's compensation payment were discontinued, plaintiff was able to do and perform the same kind and character of work he was performing at the time of the alleged accident; that defendants had paid plaintiff all compensation due to him and had paid $737.50 medical and hospital bills, and at the time plaintiff's compensation pensation payments were discontinued, defendants were apprised by the attending physician that plaintiff had fully recovered and was able to do and perform his work.
After trial in the District Court, judgment was rendered in favor of plaintiff for total disability for compensation at the rate of $30. per week for a period not exceeding 400 weeks during plaintiff's disability, with legal interest on past due instalments, less 31 weeks' compensation paid up to September 21, 1953. Plaintiff's demand for penalties and attorney's fees was rejected.
From the judgment, the defendants have appealed and plaintiff has answered the appeal asking that we amend the judgment by granting plaintiff judgment against the insurance carrier, Maryland Casualty Company, for an additional sum of 12% of principal and interest as penalties, provided in Section 658 of LSA Title 22 of the Revised Statutes of 1950, plus a reasonable attorney's fee of $1,000 and that the judgment, as amended, be affirmed.
The disputed questions in this case are: (1) Whether or not the plaintiff is totally disabled or is he only partially disabled to do the same kind and character of work he was performing at the time of the alleged accident; (2) whether or not the defendant insurance company is liable for the statutory penalty and attorney's fees for discontinuing plaintiff's compensation.
In order to determine whether or not plaintiff is totally disabled or only partially disabled, we have to consider the type of work he was doing at the time of the alleged accident and the nature and extent of his injury. To prove his disability, plaintiff called Drs. William M. Moody, J. Willard Dowell and Frank J. Rieger. Drs. William M. Moody and Frank J. Rieger are ordinary practitioners. Dr. J. Willard Dowell is an orthopedic specialist. The only medical testimony offered by the defendant was that of Dr. Moss M. Bannerman, who attended plaintiff after he suffered the accidental injury. This doctor is a qualified orthopedic surgeon who has had 16 years' active practice. He and Dr. Dowell are two of the recognized orthopedists in Louisiana, and the cases in which they have testified are numerous. Both of these physicians agree that plaintiff has between 10% and 15% total disability of his entire body to do and perform the work he was performing at the time of the alleged accident. The other physicians think that he probably has 15% to 20% disability.
Dr. Dowell testified that he examined the plaintiff on December 10, 1953 at the request of Mr. L. W. Brooks, who is attorney for the defendants; that all of the X-rays made of the plaintiff were available at his examination; and that at the time of his examination plaintiff was complaining of pain in his lower back at the side of the fracture and that plaintiff described the pain as not radiating to either leg and not being aggravated by coughing or sneezing. The plaintiff stated to him that he was unable to lift due to the pain in his back and stated that bending of his spine is painful. A part of his report reads as follows:
' to 10'' from the floor. There was some resistance to extension of the spine. The patient complained of pain on lateral bending in either direction. There was a complete range of hip motion. The legs were of equal length. The patient complained of discomfort in his back on straight leg raising at 95~ bilaterally. Tendon reflexes of the legs were active and physiological. No impairment of skin sensation was noted in the legs.
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...is adequately discussed in Strother v. Standard Accident Ins. Co. (La.App., 63 So.2d 484), and Watson v. Floyd Electric Co. (La.App., 75 So.2d 361). In the latter case the court "* * * A twenty percent disability may have the effect of reducing a worker's earning power seventy-five percent.......
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