Wheat v. Ford, Bacon and Davis Const. Corp.

• Decision Date: 16 November 1982
• Docket Number: No. 82,82
• Citation: 424 So.2d 293
• Parties: Jimmy W. WHEAT v. FORD, BACON AND DAVIS CONSTRUCTION CORP., et al. CA 0105.
• Court: Court of Appeal of Louisiana — District of US

Page 293

424 So.2d 293

Jimmy W. WHEAT v. FORD, BACON AND DAVIS CONSTRUCTION CORP., et al.

No. 82 CA 0105.

Court of Appeal of Louisiana First Circuit.

Nov. 16, 1982.

Rehearing Denied Jan. 14, 1983.

Writ Denied March 4, 1983.

Donald Fendlason, Bogalusa, for plaintiff.

Iddo Pittman, Jr., Hammond, for Ford, Bacon & Davis and Aetna Cas. and Sur. Co.

John W. Anthony & R. Bradley Lewis, Bogalusa, for defendant H.L. Richardson and Commercial Union Ins. Co.

Before LOTTINGER, COLE and CARTER, JJ.

COLE, Judge.

This is a workers' compensation suit in which plaintiff seeks compensation benefits for total disability from his former employers, Ford, Bacon & Davis Construction Corporation and H.L. Richardson d/b/a H & L Construction Company, and their insurers. At issue are the questions of whether plaintiff is disabled, either partially or totally, and if so, whether the disability resulted from a work-related accident with Ford, Bacon & Davis or H & L Construction Company or both.

The plaintiff is a thirty-four year old man who obtained a high school equivalency degree through the G.E.D. testing process. Plaintiff also attended Pearl River Junior College in Poplarville, Mississippi where he completed one year of training in welding and two years of training in auto mechanics. He subsequently used this training to make a living in the construction industry as a welder working out of New Orleans for Local 60, Plumbing and Steam Fitters Union. In October 1978 he was employed by Ford, Bacon & Davis as a pipe welder on a construction project at Crown Zellerbach Corporation in Bogalusa, Louisiana. On October 5, 1978 plaintiff hurt his back while he and a fellow employee were lifting a piece of pipe which weighed five or six hundred pounds. The accident was reported to his foreman and an accident report was prepared. Though plaintiff did not immediately seek medical attention, the pain increased within the next day or two to the point where plaintiff was required to see his family physician, Dr. Rogelio Casama. Dr. Casama diagnosed the condition as a lumbosacral strain. Dr. Casama prescribed some muscle relaxers for plaintiff to take, and permitted him to return to work with instructions to "take it easy." Following his return to work, he was given light duties and his work was restricted. By November 1978 his movements were better, but he still sustained sharp pains upon bending and doing any heavy lifting. Near the end of 1978 the job was completed and plaintiff returned to the union hall to seek further employment.

Plaintiff's next job brought him back to the Bogalusa Crown Zellerbach plant where he was employed by Forbes Construction Company as a working foreman. This job was completed in approximately two weeks. Again, plaintiff found another job in the Bogalusa plant, this time with H & L Construction Company as a pipe welder. When he started this job, plaintiff was still having back pain, but it was somewhat better than it had been during the Ford, Bacon & Davis job. The job with H & L began on February 5, 1979, and plaintiff was required to cut large pieces of pipe and drag them out of a tank. Plaintiff testified he began the day without much pain, but by the end of the day he was hurting badly and could hardly bend over. Plaintiff told Mr. Richardson, his employer, of his previous back injury and told him he was going to see a doctor. He took off the following day to see a doctor, but was unable to get an appointment. The following day was the last day on the H & L job and plaintiff was given light duty.

When plaintiff finally reached Dr. Casama he was referred to Dr. Luis Matta, an orthopedic surgeon in Covington, Louisiana. Dr. Matta first saw plaintiff on February 8, 1979. His preliminary diagnosis was that plaintiff had a residual injury to the area of the supraspinal ligament at the level of the L4 interspace. Dr. Matta stated he felt this injury had resulted from the October 5, 1978 accident and was probably aggravated by the work plaintiff had performed on February 5, 1979 with H & L. Plaintiff again saw Dr. Matta on February 19, 1979. At this time, plaintiff was improving. His pain was no longer localized, but encompassed most of his lower back. On March 5, 1979 plaintiff visited Dr. Matta for a third time. His condition was still improving, though he was somewhat sore, had some restriction of motion in flexion, and had a mild spasm of the musculature in the lumbar area. On plaintiff's fourth visit to Dr. Matta on March 19, 1979, he was doing much better. He had no spasm and was exhibiting a full range of motion of the back. At that time, he was discharged by Dr. Matta, who felt there were no clinical findings on which to base a disability rating.

After the H & L job, plaintiff was off work approximately three and a half months. After reporting the pain he encountered on February 5, 1979 on the H & L job to Ford, Bacon & Davis, their insurer, Aetna Casualty and Surety Company, paid plaintiff six weeks of compensation benefits, including Dr. Matta's bills, until plaintiff was discharged by Dr. Matta in late March of 1979.

Plaintiff returned to work in May of 1979. This time he was able to obtain employment with Gaffney Construction Company in the Bogalusa paper mill, and he continued his job with Gaffney until the job was completed almost two years later. Plaintiff's job with Gaffney was originally in the capacity of a pipe welder, but after about two months he became a working foreman. Plaintiff testified he worked in pain with Gaffney in order to support his wife and son. He claimed the pain, which was now radiating to his right hip and leg, continued to increase to the point where he could no longer perform his household repairs nor could he ride his horses. The pain finally forced plaintiff to return to Dr. Matta in January of 1980, who scheduled a myelogram for plaintiff. The myelogram was performed on February 14, 1980, and it revealed a herniated disc at the L4-L5 interspace on the left side. However, Dr. Matta did not recommend surgery; he told plaintiff to lift with his legs rather than his back, and to return if he began having symptoms again. Plaintiff returned to work out of economic necessity and continued his job as foreman with Gaffney until April 1981. At this time, Gaffney transferred him to Norco, Louisiana, where he was required to work as a pipe fitter. The bending, stooping, tool work, and the vehicular trip aggravated his condition to such an extent that he could no longer continue in this line of work, so he quit the Norco job after four days.

The trial judge found the plaintiff disabled to the extent he could no longer perform work as a pipe fitter or as a foreman for a pipe fitter's crew. However, the trial judge felt the "odd-lot" doctrine was inapplicable since he believed Mr. Wheat was an intelligent and industrious individual who, despite persistent pain, could find other available jobs in the Washington Parish area which he could physically perform. The plaintiff was therefore held to be a partially disabled employee entitled to compensation benefits at $141.00 per week for 444 weeks, six weeks of which had already been paid. The trial court also found plaintiff's injury resulted from the accident of October 5, 1978 and that only Ford, Bacon & Davis Construction Company and its insurer were responsible for the compensation benefits. Thus, H & L Construction Company and Commercial Union Insurance Company were dismissed from the suit.

Ford, Bacon & Davis Construction Corporation and its insurer, Aetna Casualty & Surety Company, appealed suspensively this judgment. On appeal, they deny the plaintiff has any disability as a result of the alleged accident of October 5, 1978. In the alternative, they contend if plaintiff is found to be disabled, the disability results at least in part from an accident on February 5, 1979 which plaintiff had while working with H & L, and that both employers should be responsible. Plaintiff filed an answer to the appeal seeking to be declared totally rather than partially disabled and asking for relief against both sets of defendants.

We first address the issue of the extent of plaintiff's disability. La.R.S. 23:1221(1), (2) state essentially an employee is totally disabled when he cannot engage in any gainful occupation for wages. In contrast, an employee is deemed partially disabled if he is unable "to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience...." La.R.S. 23:1221(3).

However, the Louisiana Supreme Court has recently adopted the "odd-lot" doctrine as the controlling test in determining whether an employee is totally and permanently disabled. In Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), this doctrine was formulated as follows:

"In order to determine whether the plaintiff fits within this category of odd-lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he 'cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity.' If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with 'a gainful...