This is а workmen’s compensation suit for total and permanent disability and for penalties and attorney’s fees. From a judgment denying total and permanent disability plaintiff appeals. Defendant has appealed that part of the judgment assessing penalties and attorney’s fees for defendant’s failure to pay a certain medical bill in the amount of $523.65.
Plaintiff commenced work with defendant, Alexandria Concrete Company, in April, 1957. Greаt American Indemnity Company, also a defendant, is the insurer of Alexandria Concrete Company. Plaintiff’s duties were to drive a truck on which
Dr. W. H. Hamilton, a dermatologist, diagnosed plaintiff’s condition as “acute cement dermatitis”. He testified that the cement caused the dermatitis. Later it was discovered that as a result of this cement dermatitis plaintiff had developed a chro-mate sensitivity which causes a change of the skin. Dr. Hamilton described chromate sensitivity as follows:
“Chromate is a very peculiar thing in that it apparently develops a change in the skin after a chromate sensitivity. The skin gets dry and they get to where they are very sensitive to heat, heat from bodily exertion or by heat from weather. And any tendency to perspire after they have a chromate sensitivity breaks them out in what wе call a chromate eczema which is a rash that is usually on the areas that have been most greatly exposed to the chromate. You usually see it on the face, the neck and the arms where your chromate has come out. A terrific heat light reaction with some eczema formation which is oozing, scaling, and redness and this will fluctuate with the weather and with the activity. It goes on for an indefinite period of time, you can’t say how long it is going to last, in other words, it may last for a few weeks, it may last for several years.”
Dr. H. W. Jolly, Jr., a dermatologist, examined plaintiff on March 28, 1958, at Dr. Hamilton’s request. The gist of his report is that plaintiff has a “cement sensitivation” and that he is “probably sensitive to chro-mates.” And if it is due to chromate sensitivity then it will be a minimum of three months with "absolute avoidance of contact with all chromates” before plaintiff will be cleared. “Complete avoidance of chro-mates is almost an impossible state to attain since сhromates are so widely used in modern industry. It has been my experience that in these cases of cement dermatitis, particularly those due to chromate, exacerbations over a long period of time, sometimes several years, are seen.”
Dr. V. Medd Henington, a dermatologist, examined plaintiff on October 21, 1959, at the request of defendant. He testified that chromates are not used to a great extent in modern society. (“I don’t think they are very prevalent.”) However, Drs. Jolly and Hamilton were of the opinion that they are prevalent. From the testimony (and that of Dr. Henington) it appears that chromate is found in: Diesel locomotives to prevent rust, and in oils, in the tanning process of shoes, cement, radiator fluid, many metals as a hardening agent, costume jewelry, watch bands, and generally in all metals which are not stainless steel as an alloy. Furthermore, coins carried in plaintiff’s pockets have caused the rash to appear, as did the metal nose bridge on his eyeglasses.
The testimony preponderates that upon exertion of any nature, or during the hot summer months, or anything that makes plaintiff hot, plaintiff perspires thereby aggravating the condition. Contact with cement and chromate (even those substances with the slightest traces of chromate) causes it to become inflamed. Furthermore, Dr. Hamilton was suspicious of nickel aggravating the dermatitis.
Prior to working for defendant, plaintiff drove a moving van and performed duties attendant therewith; prior to that he worked in a factory in the manufacture of knitting machines where he operated a drill press; and in military service he was classified as a truck driver and assigned to the motor pool section.
The lower court found that plaintiff’s principle occupation was that of a truck drivеr; that the driving of a “concrete mixer truck” and duties involved did not constitute a specialized type of employment; and that as of May, 1958, plaintiff could drive a truck provided he did not come into contact with cement. or chromates. The court also found that “disabling pain” was not involved but “irritation and discomfort” and that if this were held to produce disability that there should be a showing that it produced inability to work which had not been shown and сompensation for total and permanent disability was denied.
In Cummings v. Albert, La.App., 86 So.2d 727, 729, it was stated that:
“ ‘Our compensation law has never required that a man be completely helpless before he can be adjudged totally and permanently disabled. The criterion is whether he can go back to the same job or to a job similar to what he was doing before. * * * It is well established in our jurisprudence that an employee whose injuries prevent him from performing his customary and usual duties without suffering pain, hardship and discomfort is totally disabled within the meaning of the compensation act.’
“ * * * where an employee due to the accidental injury is unable to perform substantially the duties formerly performed by him during the employment in which injured, he is totally disabled, despite his ability to earn a living doing other and lighter or less laborious, or less (or more) skilled duties.” See cases cited therein, and Michel v. Maryland Casualty Company, La.App.,81 So.2d 36 , 40.
A workman is totally and permanently disabled when he cannot, on account of his injuries, return to work in which he was engaged at the time of his injuries, Bailey v. Maryland Casualty Co., La.App.,
“Time and again thе Supreme Court [of Louisiana] has been urged to apply a test for common laborer different from that used for skilled workers. The Supreme Court, however, has continued to make no distinction, although it does seem that more consideration is now being given to the ability of the injured employee to compete in the common labor market.” See Dillon v. Lloyd’s of London, D.C.,178 F.Supp. 164 and cases there cited.
Thus the contention that plaintiff is a common laborer and is ablе to drive other trucks and therefore is not disabled is without merit. Although the doctors testified to a list of trucks and work driving trucks that plaintiff could perform the fact of the matter is that their testimony also indicates that he should avoid contact with cement and chromates. Thus he cannot drive a cement truck. As to other trucks, although he is physically strong and capable of driving, nevertheless if he perspires or comes into contact with chromаtes he will have a reoccurrence. It is inconceivable to us that he can drive heavy trucks (the job defendant contends he usually does) without perspiring or coming into contact with chro-mates. Physical exertion, heat, etc. cause him to perspire. Certainly this situation will be encountered every day. Furthermore, it is common knowledge that in our modern society chromates are used extensively in the construction of vehiсles and consequently plaintiff will be in daily contact with chromates. The ideal condition would be to avoid perspiring, cement and chromates. It may be relatively easy to avoid cement. However, to avoid perspiring he would have to avoid exertion, and heat. This could be accomplished by plaintiff driving an air-conditioned truck. To avoid chromates the metal interior of his truck would have to be removed. Thus plaintiff is left with finding а job with these ideal conditions which we consider to be highly improbable, and therefore his ability to find a job is substantially lessened. Industry is not looking for men who are only able to work under ideal conditions for there are many who, although able to do a strong man’s work, are unemployed and seeking to do an honest day’s labor.
It is contended that plaintiff does not suffer pain and that his condition is therefore not disabling. Defendant’s own specialist, Dr. I-Ienington, testified that it was not particularly painful in the sense that it would be excruciating and that it would not be painful enough to prevent him from working. We agree that it would be painful (defined as “distressed or suffering”, in “The American Illustrated Medical Dictionary”, 22nd Ed. and “a distressing feeling due to disease, bodily injury, or organic disorders,” in “Webster’s New Collegiate Dictionary”, 2d Ed.) but however must disagree with the medical testimony that it would not be painful enough to prevent him from working. The realm of determining whether or not the pain is disabling within the contemplation of the compensation laws is basically one of law and not medicine, and properly determined by the courts considering, of course, the medical testimony as one of many factors employed in making the legal determination. See Milligan v. American Employers Ins. Co., La.App.,
The rule as to pain is the determination of whether or not work of substantially the same nature causes pain. And
Moreover, it has been held that one is disabled when in performing his work the pain and discomfort is increasingly, aggravated, Yarborough v. Great American Indemnity Co., La.App.,
“The jurisprudence in our State recognizes that the compensation laws do not require one to perform his customary and usual duties while suffering from substantial pain or discomfort. Although the petitioner, in the present case, may well be able to perform his same duties, he is not required, under the compensation act, to perform such duties under pain or discomfort, or where his condition would result in increased hazards to himself and his fellow employees.” (Emphasis added.)
From these authorities it is apparent that pain alone is not the magic word, rather discomfort and hazard to fellow employees may also place plaintiff'in the category of “disabled to perform substantially the same or similar work”. And the testimony is that he has pain (Dr. Henington) and discomfort (Dr. Hamilton). Moreover, it would be an incongruous situation to have plaintiff driving a truck and scratching his rash at the same time. If plaintiff worked under these conditions the danger to life and limb of his co-workers and third persons is readily apparent. For example, if the irresistible urge to scratch occurs while he is driving a heavy truck, he will undoubtedly be preoccupied with his itching and scratching rather than with traffic conditions and thereby create a danger to others.
Defendant contends that plaintiff is not disabled since he is “running dеbits” for an insurance company making a higher wage. We find no merit in this contention for one may be totally disabled despite his ability to earn a living doing other and lighter or less laborious, or less (or more) skilled duties. See Michel v. Maryland Casualty Co., supra. The fact that plaintiff is earning a greater wage (Jones v. Employer’s Mutual Liability Ins. Co. of Wis., La.App.,
We have examined several cases pertaining to dermatitis among which were the following. In Bernard v. City of Lafayette,
In Ware v. Engineering Const. Co.,
In Picquet v. Toye Bros. Yellow Cab Co., La.App.,
In Arkansas Nat. Bank of Hot Springs v. Colbert,
In view of the foregoing we find that plaintiff was totally and permanently disabled within the intent of the compensation act. Furthermore, defendant is protected in that if plaintiff is no longer disabled it is allowed to judicially determine same and relieve itself of further liability.
Defendant has answered the appeal contending that the trial judge erred in assessing penalties and attorney’s fees for failure to pay medical expenses for the services of the attending physician, Dr. Hamilton. The trial judge found that:
" * * * the record reveals that defendants have not paid for the services rendered by plaintiff’s attending рhysician, Dr. Hamilton, and they have not in any manner contested their liability in this respect. The total charge for these services is $523.65. Plaintiff is entitled to judgment for this amount plus legal interest thereon from its due date. Additionally, plaintiff is entitled to an award of penalty at the statutory rate of 12% and an attorney’s fee which is fixed in the sum of $200. * * * ”
Defendant has contested the assessment of these penalties on appeal. The record does not disclose that defendant knew that this bill had not been paid. Furthermore, defendant had previously paid one medical bill. On the trial counsel for defendant asked Dr. Hamilton whether or not he hasdi received any of that payment and he answered negatively. Subsequent to judgment below defendant paid this bill and admits it owed the bill. In oral argument: counsel for plaintiff stated that he did not believe that this was at issue at the time of trial and had not introduced certain evidence that he had which allegedly would show that defendant had notice that this bill had not been paid. In view of the fact that defendant made no defense, nor contested their liability for this amount, and the fact that plaintiff offered no evidence (allegedly having same) we feel that this case should be remanded insofar as the question of penalties and attorney’s fees for failure to pay same is concerned to consider evidence on the merits of the contentions of plaintiff and defendant as to notice, demand, etc.
For the foregoing reasons the judgment appealed from is annulled and set aside insofar as it denied compensation for total and permanent disability and judgment entered in favor of plaintiff and against defendant for total and permanent disability allowing 65% of wages per week, not in excess of $35, during the period of disаbility, not to exceed 400 weeks, less credit for payments previously paid; insofar as the judgment awarded penalties and attorney’s fees for failure to pay the medical expenses in the amount of $523.65 for the services of Dr. Hamilton the case is remanded for proceedings in accordance with the views hereinabove expressed and in accordance with law. Defendant to pay costs of this appeal.
Reversed in part, remanded in part.
On Application for Rehearing.
En Banc. Rehearing denied.