Lоu Ellis HALL v. PIPE LINE SERVICE CORPORATION and St. Paul Mercury Indemnity Company
No. 42951
Supreme Court of Louisiana
April 1, 1957
On Rehearing Nov. 12, 1957
98 So.2d 202
Christovich & Kearney, A. R. Christovich, Sr., A. R. Christovich, Jr., New Orleans, for defendants, appellees and respondents.
HAMLIN, Justice ad hoc.
In the exercise of our supervisory control (
Plaintiff brought this workmen‘s compensation proceeding for permanent disability at the rate of $30 per week for a period not exceeding 400 weeks, $1,000 medical expenses, 12% penalties, attorney‘s fees, expert fees, interest, and costs. In the alternative, he prayed for permanent partial disability of $30 per week for 300 weeks.
The evidence shows that in the course of his employment as a pot fireman on pipe line construсtion, on June 15, 1953,
This injury necessitated an operation, which was performed by Dr. Lyon K. Loomis at Flint Goodridge Hospital. The cast placed on plaintiff‘s leg was changed оn June 29, 1953 and removed on September 2, 1953, and Dr. Loomis prescribed special shoes. On September 30, 1953, Dr. Loomis referred plaintiff back to Dr. Jonah Washington Atkinson, who had treated him immediately after the operation, for observation. On October 3, 1953, Dr. Loomis wrote a letter to the effect that he thought plaintiff could return to work. He testified that he thought at the time it would be preferable for plaintiff to do light work. Dr. Atkinson last saw plaintiff on October 12, 1953, and at that time he was of the opinion that plaintiff could return to work. Plaintiff did not return to work. He consulted Dr. Blaise Sаlatich on October 23, 1953, and then consulted Dr. George C. Battalora on November 30, 1953.
Plaintiff brought the present proceeding in January, 1954, alleging in his petition that, as a direct result of the accident, he
Plaintiff‘s alleged wage was $62 per week, and it was stipulated that his employer had paid him compensation of $30 per week for sixteen weeks ($480), the last payment having been made about October 13, 1953. It was also stipulated that all medical bills had been paid.
The trial court dismissed plaintiff‘s suit.
The Court of Appeal affirmed the judgment of the trial court, stating that the recоrd overwhelmingly demonstrated that the plaintiff could have returned to work at any time, had he been willing to do so.
In this Court, plaintiff prays for permanent disability payments, or, alternatively, for permanent partial disability payments, or, further alternatively, for 10% permanent partial loss of the use or function of a foot. He alleges that the lower courts were in error in their findings. The defendant employer and its insurance carrier urge that prior payments of Workmen‘s Compensation made during plaintiff‘s illness more than satisfied any requirements of the Workmen‘s Comрensation Law, and that the judgments of the lower courts are correct.
“The disability that I estimated on this case was about ten per cent loss of use of the left foot. I considered thаt would probably be permanent and I based this on the moderate thickening noted about the tendon achilles at the site of the severance.”
Dr. Blaise Salatich, orthopedic surgeon and a witness for the plaintiff, examined the plaintiff on the morning of the trial. He testified that plaintiff had suffered a thirty per cent overall disability and based his opinion on the fact that one cannot move a heavy object without the full use of his legs and arms. He also stated that, in his opinion, plaintiff had suffered a twenty-five degree disability in dorsi and plantor flexion.
From the above evidence, we think that plaintiff‘s degree of disability should be averaged.1 Witnesses for the defend-
“Compensation shall be paid under this Chapter in accordance with the following schedule of payments:”
(4) (g) “For the loss of a foot, sixty-five per centum of wages during one hundred and twenty-five weeks.”
(4) (o) “In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.”
The defendants deny that plaintiff‘s alleged wage was $62 per week. They aver that it was $54.60, but there is no proof in the record that their averments are correct. Plaintiff testified that he worked six days per week and received an hourly wage of $1.05 for his first forty hours worked per week and time and one-
The correct method for computing compensation for the permanent partial loss of use of the function of a member—here, the foot—is to take the proportion of the partial loss from 65% of the weekly wage and allow such amount as compensation for the number of weeks permitted for the total loss of the resрective member. O‘Connor v. American Mutual Liability Ins. Co., La.App., 87 So.2d 16. In the present matter, 65% of plaintiff‘s weekly wage amounts to $40.30, and 17.5%—average degree of disability, supra—of this amounts to $7.05. Since the above provisions of the Workmen‘s Compensation Law allow plaintiff this amount for a period of 125 weeks, his total allowаnce would be $881.25.
Plaintiff contends that he should be allowed permanent partial disability, in addition to the payments that have been voluntarily paid him by his employer. We find that he is in error in this contention, because it is stated in
“Where compensation has been paid under subdivisions (1), (2), or (3), of R.S. 23:1221, the amount of such payment shall be deducted from any compensation allowed under subdivision (4) thereof or under Sub-part C of this Part.”
“An injured workman cannot recover compensation both for specific loss, such as a partial loss of the function of any member, and fоr temporary total disability.
LSA-R.S. 23:1223 provides that where compensation has been paid under the disability provisions the amount of such payments shall be deducted from any compensation allowed for a specific loss, * * *” See, also, Franklin v. Louisiana Highway Commission, La.App., 152 So. 604.
Therefore, plaintiff‘s award for а 17.5% permanent partial loss of the use or function of his left foot is subject to a credit of $480, workmen‘s compensation previously paid him.
The penalty provisions of
Since plaintiff is the successful litigant in this matter, he is entitled to attorney‘s fees.
For the reasons assigned, the judgments of the trial court and the Court of Appeal, Parish of Orleans, are annulled and set aside; and, it is now ordered, adjudged and decreed that there be judgmеnt in favor of plaintiff, Lou Ellis Hall, and against the defendants, Pipe Line Service Corporation and St. Paul Mercury Indemnity Company, for compensation at the rate of $7.05 per week for a period of 125 weeks, with legal interest on each weekly installment from its respective maturity date until paid, subject to a credit of $480 for workmen‘s compensation previously paid, and for all costs. It is further ordered, adjudged and decreed that the fee of plaintiff‘s attorney be fixed at $175; and the case is hereby remanded to the trial court for the purpоse of fixing the fee of the expert who testified on behalf of the plaintiff, and such fee is to be taxed as costs in this case.
On Rehearing
MOISE, Justice.
- Allowing attorney‘s fees under
LSA-R.S. 23:1141 . - Unfairly averaging the percentage of loss of use or function of the foot by employing the low percentages of disability found by defendants’ medical witnesses and the high percentage of plaintiff‘s doctor.
Our original decision held that the penalty provisions of
There is no provision for assessing the employer or his insurer with attorney‘s fees when—as in the instant case—neither of them has acted unfairly.
“Claims of attorneys for legal services in connection with any claim arising under this Chapter shall not be enforceable unless approved by the court. If so approved, such claims shall have a privilege upon the compensation award, but shall be paid therefrom only in the manner fixed by the court.”
“In no case shall the fees of an attorney who renders services for an employee coming under the provisions of this Chapter exceed twenty pеr centum of the amount of the award, provided that the maximum fee shall in no case exceed one thousand dollars.”
We interpret the above section to mean that attorney‘s fees are to be paid from the compensation award in a manner fixed by the Cоurt. Therefore, our original decision was in error in allowing attorney‘s fees over and above the compensation awarded to plaintiff. In Hemphill v. Tremont Lumber Co., 209 La. 885, 25 So.2d 625, the fees were allowed from the compensation award.
We have carefully reviewed our original decision, and, while we do not hold that the percentage of disability found by attending physiсians and surgeons should be averaged in all workmen‘s compensation cases, we find that a process of averaging was correct and reasonable under the existing circumstances in the instant matter and that the compensation awarded was fair and just.