Wells v. Kaiser Aluminum & Chemical Corp.

• Decision Date: 04 April 1966
• Docket Number: No. 2118,2118
• Court: Court of Appeal of Louisiana — District of US
• Parties: John E. WELLS v. KAISER ALUMINUM & CHEMICAL CORPORATION, and Fireman's Fund Indemnity Ompany.

Page 37

185 So.2d 37

John E. WELLS v. KAISER ALUMINUM & CHEMICAL CORPORATION, and Fireman's Fund

Indemnity Ompany.

No. 2118.

Court of Appeal of Louisiana, Fourth Circuit.

April 4, 1966.

Laura, Danna & Simmons, Joseph J. Laura, Jr ., New Orleans, for plaintiff-appellant.

Porteous & Johnson, William A. Porteous, III, New Orleans, for defendants-appellees.

Before McBRIDE, YARRUT and BARNETTE, JJ.

BARNETTE, Judge.

This is a suit for recovery of 100 weeks additional compensation brought by an injured workman by way of reconventional demand in answer to his employer's petition for termination of payments under a judgment of total disability ordering payments for 300 weeks. From a judgment rejecting his demands for the increase the injured employee has appealed.

The plaintiff, John E. Wells, while employed as an anode worker by Kaiser Aluminum Corporation was injured in the course of his employment when his foot slipped from a beam on which he was standing causing it to plunge into a vat of molten aluminum, resulting in a serious burn. Payments of compensation at the rate of $35 per week were made for 111 weeks by the employer or his insurer. The maximum allowance of $2500 for medical expense was also paid. Thereafter plaintiff brought suit alleging total permanent disability which resulted in a judgment, July 25, 1961, for 300 weeks compensation at $35 per week with 12 percent statutory penalty and 20 percent attorney's fees, less credit for the amount already paid.

After making payments for 276 weeks, the employer, Kaiser Aluminum and Chemical Corporation, and its insurer, Fireman's Fund Indemnity Company, brought a petition under LSA-R.S. 23:1331 for modification of the judgment and for termination of the order for payment on the allegation that the claimant had fully recovered from his disability . Plaintiff answered this petition denying his recovery from disability and by reconvention prayed that the case be reopened under LSA-R.S. 23:1331 and that the judgment be amended by increasing payments to 400 weeks.

Before the case was called for trial on these pleadings the 300 weeks had expired and the judgment of July 25, 1961, had been fully discharged. The issue raised by defendants' petition was therefore moot and was withdrawn. The case went to trial on the issue raised by the reconventional demand and was submitted for judgment on plaintiff's testimony and the written reports of Dr. William Fisher, dated October 8, 1963, and Dr. Irvin Cahen, dated July 22, 1963, and the X-ray report of Drs. Teitelbaum and Schneider, dated July 12, 1963, to Dr. Cahen. All were submitted by stipulation. There is no transcript of the plaintiff's testimony, and we have only the statement of the trial judge in his reasons for judgment touching upon the facts testified to by plaintiff.

The trial judge's statement reveals that, since leaving Kaiser, plaintiff has worked as a taxicab driver; a bus driver; a rural mail route employee, handling bulk mail; and has worked in some capacity connected with tung oil production. He regularly drives his own automobile. The trial judge also commented on his observation of plaintiff's movements in the courtroom indicating no impairment. The exhibition of the injured foot to the court disclosed no evidence of continuing disability other than scar tissue. No medical treatment had been sought by plaintiff since rendition of the original judgment.

From the doctors' reports there is no doubt that there is some permanent residual impairment in the flexion of plaintiff's left foot. Both doctors reported that the underside of the skin grafted onto the heel had adhered to the Achilles tendon and the sheath of the calf muscle which attached to the tendon in such a way as to prevent plaintiff's raising his toes and the front of his foot. The result is that plaintiff is unable to put his heel down when walking or standing. This inability to walk normally is evidenced by a flattening of the metatarsal arch and the formation of a large callous at the base of the big toe on plaintiff's left foot. In addition the scar tissue resulting from skin grafting extends over the foot and ankle and is sensitive to the pressure of high top shoes which are necessary as a protective measure in certain types of industrial employment.

On the other hand the plaintiff is not incapacitated from employment in many fields of labor and has been employed in several capacities since the original trial herein, thus demonstrating his ability to work successfully in the competitive labor market. He is not therefore wholly disabled to do work 'of any reasonable character.'

There are numerous cases in our jurisprudence from the Supreme Court and the Courts of Appeal wherein a distinction between skilled or semi-skilled workmen and common laborers has been made to determine if the injured workman is disabled to do work of any reasonable character within the intendment of the compensation statute. The Supreme Court said in Brannon v. Zurich Gen. Acc. & Liab. Ins. Co., 224 La. 161, 166, 69 So.2d 1, 3 (1953): 'There is, of course, no hard and fast rule that can be laid down for guidance in the application of this rule to the limitless variations of fact presented to the courts. Each case must stand on its own peculiar facts.'

In the Brannon case the Supreme Court reiterated the jurisprudence which has prevailed since its decision in Knispel v. Gulf States Util. Co., 174 La. 401, 141 So. 9 (1932), to the effect that 'disability 'to do work of any reasonable character' within the intendment of the statute means 'disability to perform work of the same or similar description, king or character (not necessarily the identical position) to that which the claimant was accustomed to perform or was undertaking when the injury occurred.'" 224 La. at 166, 69 So.2d at 3. See also Morgan v. American Bitumuls Co., 217 La. 968, 47 So.2d 739 (1950); and Scott v. Hillyer, Deutsch, Edwards, Inc., 217 La. 596, 46 So.2d 914 (1950).

In Wright v. National Sur. Corp., 221 La. 486, 59 So.2d 695 (1952), the Supreme Court held that an operator of a large asphalt spreading truck was a skilled workman and was entitled to compensation for total permanent...