Wiley Leo FUTRELL v. HARTFORD ACCIDENT & INDEMNITY COMPANY
No. 52330
Supreme Court of Louisiana
March 26, 1973
Rehearing Denied May 7, 1973
276 So. 2d 271
BARHAM, Justice.
Law Offices of W. T. McCain, Robert L. Kennedy, Colfax, for plaintiff-applicant.
BARHAM, Justice.
The plaintiff, Wiley Leo Futrell, is suing his employer‘s insurer, Hartford Accident & Indemnity Company, for permanent total disability benefits under our Workmen‘s Compensation law. Futrell was employed by Futrell Chevrolet, Inc., as an automobile mechanic when on November 21, 1968, he suffered an injury to his right knee. Weekly benefits were paid by Hartford from November 22, 1968, to October 2, 1969, totalling $1575.00. Futrell Chevrolet also paid Futrell certain additional sums in the amount of $1004.00. The district court found that the burden of proof had not been sustained by plaintiff and dismissed his claim for permanent total benefits. On appeal that judgment was affirmed. 258 So. 2d 672. The Court of Appeal in a per curiam on application for rehearing noted that Futrell was not entitled to any additional payments because of his partial disability.
The injury occurred while Futrell was working on a pickup truck, changing the points and plugs. He was standing on a stool to reach the distributor when the stool slipped out from under him causing him to step backward off it. He felt a popping sensation in his right knee. On the following day the knee was so swollen and painful that he went to see his doctor. When the treatment prescribed failed to give Futrell any relief, he was sent to Dr. Banks, an orthopedic surgeon. Dr. Banks diagnosed the injury to be a tear of the medial meniscus of the right knee with disuse atrophy, and recommended surgery. The surgery revealed a fraying of the middle third of the medial meniscus and some chondromalacia of the patella. The latter condition was determined as predating the accident. The meniscus was removed, and the area of the chondromalacia was debrided with a knife. Seven days after the surgery Futrell was released from the hospital as an ambulatory patient on crutches. Nine months later, when Futrell was discharged by Dr. Banks, the injury was found to have left Futrell with a 10 per cent disability of the right extremity. Dr. Banks was of the opinion that Futrell could return to work as a mechanic, but with a restriction on squatting, lifting heavy items, and climbing.
Evidence of medical evaluation of Futrell‘s condition by three other orthopedic surgeons was introduced at the trial. Dr. Jones saw Futrell once on March 16, 1970, and found persistent pain and swelling in
Futrell consulted Dr. Beurlot on two occasions, April 1 and June 22, 1970. This doctor‘s diagnosis was degenerative arthritis of the right knee which he thought could have been aggravated by the trauma. It was his opinion that Futrell would have difficulty in performing repeated bending or stooping motions and in climbing.
The other orthopedic surgeon, although not Board certified, to see Futrell was Dr. Gleason. From his examination of Futrell on October 7, 1970, Dr. Gleason concluded that Futrell‘s condition was degenerative arthritis of the right knee with severe chondromalacia of the patella. He stated that this condition could be caused by the trauma, but that he could not state this definitely since he had not examined the knee at the time of the injury and the surgery. Dr. Gleason recommended surgery, and concluded that with the knee in its present condition Futrell would have difficulty lifting and bending.
The parties agreed by stipulation that an accident had occurred in which the injury complained of was sustained. The issue that is contested is the degree of the disability suffered by Futrell and its effect on his ability to return to the work of a mechanic. Futrell‘s position is that he is entitled to permanent total disability benefits.
Permanent total disability is defined as “disability to do work of any reasonable character” under
The medical evaluation of the percentage of impairment of function was judged to be about 10 per cent of the right extremity. This is, however, but one feature to be considered by the courts in determining whether the employee is totally and permanently disabled. * * *” The medical expert defines disability in terms of the physiological injury and its effect upon the performance of the mechanical
“On the other hand, a court is called upon to determine disability according to a legal definition drawn by interpretation from the compensation statute furnished by the legislature. The law fixes disability in terms of loss of earning capacity, which includes the extent of the physiological impairment as only one factor. The function of the judge is much broader than that of the medical man, for loss of earning capacity, which is the eventual touchstone of all legal definitions of disability, can be determined only by reference to the state of the labor market, hiring practices, the humanity of obliging a man to work in pain, and other broad policy considerations which the physician is not equipped nor authorized to evaluate.” Malone, Louisiana Workmen‘s Compensation § 272 (Supp.1964). See also Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6 (1938); Brannon v. Zurich General Accident & Liability Ins. Co., supra. (Emphasis supplied.)
In order to assess Futrell‘s disability it is necessary to examine the nature of the work performed by him as a mechanic. Futrell‘s own testimony explained that he was required to crawl inside the automobiles to work on the wiring under the dashboard, radios, and heaters; that he had to lift bumpers and fenders and hold them in place to remove and reattach them. He said that he often had to squat or use a creeper to crawl under the vehicle to do certain kinds of work, like transmission or brake work. The use of a stool and the climbing over the top of the radiator or the fender were necessary when working on some part under the hood of a truck.
In addition to Futrell‘s testimony about the nature of the job of a mechanic, six other mechanics testified at the trial. Three were called to testify for Futrell—the owner of an independent mechanic shop in the town, a former co-employee of the plaintiff at the Chevrolet shop who at that time worked in a different town, and an employee of the Ford auto service shop in the town. These three men were competent to testify about the only three shops that did mechanic work on automobiles and trucks in the town. All three testified that lifting, climbing, and squatting were required in performing the duties of a mechanic, and that the amount of such activity depended on the equipment available at the particular shop. The two shops that were part of automobile dealerships had additional modern equipment that lessens the demand for squatting. The three mechanics called by the defendant, all presently employed by the Chevrolet shop or formerly employed there, testified that little or no squatting was required at that shop because of all the modern equipment. They all stated, however, that they did still have to climb, lift objects, use a creeper, and make road service calls.
Even under the most modern of working conditions, like those provided in the service shop where Futrell was employed, he would not now be able to perform many of the functions required of a mechanic. The medical experts recommended a limitation on squatting, lifting, and climbing, and the testimony of all of the mechanics acknowledged that lifting and climbing were required even in the best of conditions. It should also be noted that with the modern equipment Futrell‘s earning power would still be affected. In his former employment he worked on a commission basis, and calling on others to assist him or do the job for him would have reduced what he could earn.
The degree of Futrell‘s disability must not, however, be judged by placing him in ideal working conditions. The test must be whether the injury has substantially decreased Futrell‘s ability to compete with ablebodied mechanics in the general labor market. Stieffel v. Valentine Sugars, Inc., supra, involved a right-leg injury to a stenographer-clerk; Brannon v. Zurich
This particular case illustrates why the test must be applied to general working facilities in Futrell‘s particular field of endeavor, rather than to the particular facilities offered in his former employment. Futrell was not reemployed by his employer, although the reason given was not connected with the injury he suffered. The facilities available in other mechanic shops vary greatly, and the fewer labor-saving devices available the more demanded of the mechanic. If Futrell sought employment at any of these less well equipped shops, he would have to limit what he could do, and therefore would not have the bargaining power of the ablebodied mechanic.
Furthermore, Futrell stated that there was a limitation of motion of his right leg and the degree it could be bent without forcing his leg with his hands. He walks with a limp. Medical and lay testimony support both of these facts. Futrell, his wife, and a neighbor all testified of pain and swelling of Futrell‘s right knee, and stated that he had a tendency to lose his balance. These aspects of his injury would also seriously affect Futrell in any type of working circumstance.
Considering the medical evaluation of the impairment of the functions of Futrell and the other aspects which illustrate his loss of earning capacity, we find that Futrell is totally and permanently disabled and entitled to the full benefits provided in
Under
By stipulation the parties acknowledged that $1004.00 was paid by the employer at a time when compensation payments by the insurer were also paid. Futrell received from his employer $35.00 per week for 26 weeks plus a $94.00 bonus. Credit for wages paid is generally computed by deducting from the total number of weeks for which compensation is due those weeks when the employer paid the injured employee any amount which at least equaled the compensation due. Amounts paid weekly in excess of the compensation due cannot be credited as payment for future weeks. 2 Larson, Workmen‘s Compensation § 57.47. Here the weekly payments made by the employer were in excess of the actual compensation payments due which were paid by the insurer. Thus, without any evidence to show a contrary intention between the employer and the
We reverse the judgment of the Court of Appeal and award to the plaintiff, Wiley Leo Futrell, permanent total disability benefits as provided in
HAMLIN, C. J., dissents, being of the opinion that the result reached by the Court of Appeal is correct.
SANDERS, C. J., dissents with written reasons.
SUMMERS, J., dissents. Particularly, I find no basis to overrule the trial court determination of the extent of plaintiff‘s disability.
Wiley Leo FUTRELL v. HARTFORD ACCIDENT & INDEMNITY COMPANY
No. 52330
Supreme Court of Louisiana
March 26, 1973
Rehearing Denied May 7, 1973
276 So. 2d 271
SANDERS, Chief Justice (dissenting).
The plaintiff in this action, an automobile mechanic suffering an 8 to 10% permanent disability of the right knee, was denied permanent and total workmen‘s compensation benefits in the trial court, and that judgment was affirmed by the Court of Appeal, 258 So. 2d 672, both courts holding that the plaintiff could perform all duties required of a mechanic at any repair shop with reasonably modern equipment. I agree with these holdings and record my dissent to the majority opinion.
The operative facts are clear. Futrell, a “line” mechanic at Futrell Chevrolet, Inc., in Colfax, Louisiana, injured his knee on November 21, 1968, when a work stool slipped from under him. His physicians diagnosed a tear of the medial meniscus and surgically removed the cartilage on December 10, 1968. The surgeons also found and debrided a pre-existing area of chondromalacia of the patella. On July 23, 1969, the treating orthopedic surgeon, Dr. Banks, recommended that the plaintiff return to work subject to restrictions against squatting and climbing of ladders. On September 10, 1968, the same physician discharged the plaintiff to return to work, imposing a restriction only upon “prolonged squatting.” Dr. Banks rated the permanent disability at 10% of the right extremity.
Although there is conflicting medical evidence as to this disability and as to the advisability of further surgery, both lower courts found that the disability did, in fact, lie within 10% of the right extremity. The trial court observed that the plaintiff exaggerated his symptoms. The record provides no basis for disturbing these factual findings.
Hartford, insurer of Futrell Chevrolet, paid weekly benefits from November 22, 1968 through October 2, 1969, at the rate of $35.00 per payment. These payments totaled $1,575.00, a sum in excess of the $1,423.00 due plaintiff under the permanent-partial disability schedule. In addition, his employer paid an added $35 per week, as a gratuity, from December 9, 1968 through June 2, 1969, plus certain bonuses. These payments totaled $1,004.00.
Thus, permanent partial benefits having been fully paid, the plaintiff is entitled to further relief only if he is permanently and totally disabled within the meaning of those terms as used in the Compensation
In reaching this conclusion, both courts correctly held that the plaintiff was a skilled worker and imposed the test required by the jurisprudence. As this Court held in Lindsey v. Continental Casualty Company, 242 La. 694, 138 So. 2d 543 (1962):
“Under the jurisprudence it is established that a skilled worker is deemed totally disabled within the intendment of the law if he is unable to do work of the same character as that which his training, education, and experience qualify him to perform, without unusual difficulty or danger. This rule is applicable to a skilled worker who cannot perform a substantial portion of the work incident to his special occupation.”
The plaintiff at bar is a “shop” mechanic. The Futrell Chevrolet repair facility, like any reasonably equipped modern shop, is outfitted with motor lifts, motor stands, transmission lifts and stands, hydraulic car lifts and jacks, dollies, and much other gear. Thus, both trial and appellate courts found that “plaintiff could return to his former occupation in the Chevrolet repair shop or in any other automotive repair shop with modern equipment without having to squat or climb unless he wanted to do so.” Insofar as the record shows, all of plaintiff‘s employment has been in this type of shop.
The evidence does not support plaintiff‘s final argument that the lack of work in modern shops will force him to work in “shade tree” shops, that is, shops that do not have reasonably modern equipment.
For the reasons assigned, I respectfully dissent.