Williams v. K & B Equipment Co., Inc., 83-3098

• Decision Date: 09 February 1984
• Docket Number: No. 83-3098,83-3098
• Citation: 724 F.2d 508
• Parties: Clyde WILLIAMS, Plaintiff-Appellant, Employers National Insurance Company, Intervenor, v. K & B EQUIPMENT COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 508

724 F.2d 508

Clyde WILLIAMS, Plaintiff-Appellant, Employers National Insurance Company, Intervenor, v. K & B EQUIPMENT COMPANY, INC., Defendant-Appellee.

No. 83-3098.

United States Court of Appeals, Fifth Circuit.

Feb. 9, 1984.

Christenberry & Associates, Michael H. Piper, III, New Orleans, La., for plaintiff-appellant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Madeleine Fischer, New Orleans, La., for intervenor.

Chaffe, McCall, Phillips, Toler & Sarpy, Kenneth W. Jacques, Kenneth J. Servay, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, TATE and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Clyde Williams appeals the adequacy of the district court's awards for past lost wages, future lost earning capacity and past and future pain and suffering caused by a 1978 longshoreman's accident. We affirm the future lost earning capacity and pain and suffering awards as not clearly erroneous, but vacate and remand the award for past lost wages to correct an apparent error in calculation.

I

On June 16, 1978, in his second day as a longshoreman, Williams, then 24 years old, was struck on his right ankle by a pallet board that fell from a K & B crane. In a bench trial the district court found K & B liable for the injury and with the consent of the parties referred the case to a magistrate to determine damages.

Williams' medical history is not in dispute. He has undergone three operations on his right ankle, each under general anesthesia. He has also been subject to several moderately painful exploratory surgical procedures. Williams has suffered intermittent pain and swelling in his right ankle and will continue to experience these symptoms absent a fusion of the ankle. A successful fusion may end the pain but will leave a limp. Regardless, he will have a permanent 35% impairment of his right foot, an impairment of both his social and work life.

Before the injury Williams played basketball and football as his principal outside interests and he had been practicing with a semi-professional football team. It is uncontested that he will no longer be able to play these sports.

Williams had worked sporadically as a longshoreman over a period of three months in 1972. He later joined the United States Army and was honorably discharged in 1975. During 1975-1977 Williams never reported earnings of more than $1,200 a year. He testified that he earned more than this working on a cash basis as a security guard but was unable to document these earnings and the magistrate did not credit this testimony. After the injury Williams worked a few odd jobs but was vague concerning his earnings and the magistrate estimated these earnings at $1000. Since October 1981 Williams has worked as a retail clerk in a grocery store earning $4.50 an hour working forty-hour work weeks.

A report by Dr. Fosberg, a vocational psychologist, stated that given Williams' high school education and the results of an intellectual evaluation and a manual dexterity test, his best vocational track would have been as a longshoreman, which paid $11.60 per hour at the time of the report, or as a pipefitter, bricklayer or boilermaker where he would also earn over $10.00 per hour. The report concluded that given his injury, Williams' career opportunities would be limited to store clerk, parking lot attendant and security guard. Dr. Fosberg stated that these occupations currently paid the minimum wage plus accruals based on seniority. Williams' orthopedist, Dr. Stokes, testified that without the fusion Williams was capable of driving a truck or operating a forklift or a crane. Dr. Goodman, an economist, testified that assuming forty-hour work weeks the present value of the difference in salary between Williams' earnings as a longshoreman and as a retail clerk is $199,571.89.

The magistrate determined that Williams was entitled to recover $39,078.76 consisting of: past lost wages $5,916.00; past and future pain and suffering $10,000.00; future lost earning capacity $10,000.00; and medical expenses $13,162.76. The district court adopted the magistrate's findings and recommendations.

II

The magistrate's findings, adopted by the district court, are subject to the clearly erroneous standard. As such we can only reverse if, after a review of the entire evidence, we are "left with a definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Ferrero v. United States, 603 F.2d 510, 512 (5th Cir.1979).

Williams argues that the magistrate erred in determining that his past lost wages were $5,916.00. Testimony before the magistrate demonstrated that longshoreman's work is available based on a priority system in which...