Landry v. Liberty Mutual InsuranceLandry v. Liberty Mutual Insurance
Lead Opinion
This is a workmen’s compensation case. Plaintiff contends he sustained an accidental injury which required removal of his left eye. The eye was already sightless. He seeks compensation under the schedule of payments for loss of аn eye,
The issues are: (1) Did plaintiff sustain a compensable accident? (2) If so, is the accident causally related to the loss of the eye ? (3) Is plaintiff entitled to cоmpensation for loss of an eye or, alternatively, for disfigurement?
The general facts show that on October 10, 1968, plaintiff was operating a bulldozer near Krotz Springs, Louisiana, for the defendant, employer, St. Martin Construction Company, Inс. He testified sand fell in his eye. His nephew, McLane Francis, who was acting as swamper, went to the truck and brought back a glass of water with which plaintiff rinsed the eye. The nephew corroborated these facts.
Plaintiff says he kept on wоrking Thursday, Friday and Saturday, but the eye continued to get worse. This is substantiated by plaintiff’s wife who testified that when he returned home at night the eye was red and inflamed. On Monday, October 14, 1968, plaintiff went to Dr. Leon Slipakoff, an eye specialist in New Iberia. This physician said something had apparently fallen into the eye. It was inflamed and looked terrible. He started treatment with antibiotics but said the prognosis was poor. Finally, on October 25, 1968, the eye ruptured, requiring surgical removal.
We think the tеstimony of the plaintiff, as corroborated by his nephew, his wife and Dr. Slipakoff, is sufficient to prove that while he was operating the bulldozer he got something in his eye and this caused the injury complained of. We conclude that a work-cоnnected accident is proved.
The next issue is whether there is a causal relationship between the accident and the loss of the eye. Plaintiff testified the eye was first injured in about 1948 by caustic soda. The evidence is vague as to this first injury, but when Dr. Slipakoff first saw plaintiff on September 3, 1957, for complaints of pain and redness of the eye, the cornea was already badly scarred. The eye was white and plaintiff had no vision except that he could see the motiоn of a hand within about 12 inches of the face.
Dr. Slipakoff next saw plaintiff on April 6, 1966, after something had again fallen into the eye. The doctor says that by this time the cornea was becoming very thin and was beginning to bulge. Plaintiff still had only “hand motion vision.” Since the condition was irreversible, and the eye was likely to rupture at any time. Dr. Slip-akoff advised plaintiff in 1966 to have the eye removed and replaced with a prosthesis. Plaintiff refused.
The next time Dr. Slipakoff saw plaintiff was October 14, 1968, the occasion mentioned above. The eye was badly inflamed, did not respond to treatment and finally ruptured on October 25, 1968. This physician said the cause of the rupturе was probably that something had gotten into the eye, it became inflamed and plaintiff rubbed it, causing the cornea to finally burst and the eye to collapse.
On referral by Dr. Slipakoff, plaintiff was seen on October 25, 1968 by Dr. R. S. St. Dizier, an eye surgeon. This physician testified plaintiff gave a history of rubbing the eye and causing it to burst. The fluid in the eye gushed out and the eye collapsed. It was subsequently removed and a prosthesis substituted.
Under the evidence outlined above, we conclude there was a causal connection between the accident and the loss of the eye. It is true the eye was already sightless and the cornea was becoming progressively thinner. But, the immediate cause, according to the testimоny of the plaintiff and the physicians, was that after plaintiff got something in his eye while operating the dozer, the eye became inflamed, plaintiff rubbed it and finally it ruptured.
This case falls within the established jurisprudence that an employer accepts in employee as he finds him and compensation must be paid where a work-connected accident aggravates or accelerates a pre-existing condition, Deville v. Travelers Insurance Company, Lа.App.,
The next issue is whether, as a matter of law, plaintiff is entitled to compensation under
“The defense of comparative vision or the prior loss of the industrial use of the eye seems to be presented here for the first time in our jurisprudencе; but if we are to give consideration to the adjudications of appellate courts in other jurisdictions where, in workmen’s compensation statutes, like in ours, compensation is allowed ‘for the loss of an eye,’ we are bound to hold, under the weight of authority, that the doctrine does not apply here.
“Most of the decisions, as we view them, are grounded on the clear provisions of the statute which, awards compensation ‘for the loss of an eye’ and mаkes no reference whatever to any impairment of the sight or the loss of any degree of vision therein.”
From our research, we cannot say the majority rule supports plaintiff’s position. There are many cases on each side. Some cases from other jurisdictions supporting the claimant are General Motors Corpora
With all due respect to the court in the Haas case, we find thе rationale of the decision difficult to follow. Our jurisprudence is established that where there is loss of the sight of an eye, without loss of the eye itself, compensation is due under the schedule of payments for loss of an eye,
We think it is more logical in such cases to allow recovеry for disfigurement of the face, under
Defendants make a strong argument that no recovery should be allowed in the present case, under this provision of the statute, because plaintiff’s appearance with the prosthesis is better than it was with his white eye. This contention is supported by the testimony of Dr. Slipakoff that the eye looks better with the prosthesis than it did before the injury. Pictures filed in evidence show that before the accident the eye appeared white due to scarring of the cornea. After the removal of the natural eye, the only thing which is noticeable is that the eyelids appear to be more open, as if plaintiff is staring, and the false eye does not have a full range of movement. We conclude the evidence does not show material disfigurement. Actually, plaintiff’s facial appearance is as good or better than it was before the accident.
For the reasons assigned, the judgment аppealed is affirmed. All costs of this appeal are assessed against the plaintiff appellant.
Affirmed.
Application for Rehearing
En Banc. Rehearing denied.
Dissenting Opinion
(dissenting).
I respectfully dissent from the dismissal of the plaintiff’s claim for the loss of his
Before the accident, the cornea of th,e рlaintiff’s left eye had been injured. His only remaining vision in this eye was hand motion within a foot. He had resisted previous advice to have the eye removed.
The majority concedes that as a result of an accident at work, it became necessary to remove this left eye. The majority rejects the claim for loss of the eye, however, since the vision in it was already useless for industrial purposes.
Nevertheless, the legislature has specifically provided that, without regard to disability or cosmetic disfigurement, an employee is entitled to an award of 65’% of his wages during one hundred weeks “for the loss of an eye”.
I see no warrant for rеfusing to follow the express legislative provision entitling this employee to an award for the loss of his eye. Our holding in this respect is in direct conflict with that of our brothers of the First Circuit in Haas v. Globe Indemnity Co.,
The jurisprudence considers the accidental loss of the visual function equivalent to the accidental loss of an eye. This does not, nevertheless, justify us in depriving the workingman of his right to compеnsation for the actual loss of an eye, as provided by the statute.
The majority fears that, conceivably, an employee might receive dual awards: one, for traumatic loss of visual function; and, subsequently, for loss of the eye itself, should a second accident cause it.
This dual award has not yet occurred and is not likely to be a problem of major proportions. Nevertheless, if it did occur, it is comparable to the possibility of receiving dual awards for total disability, long recognized by our compensatiоn act. An accidental aggravation at work of a less disabling into a more disabling condition is compensable as total disability (Carlino v. United States F. & G. Co.,
Furthermore, I am unable to see why the plaintiff is not entitled to an award for serious permanent disfigurement about the face under
With an artificial eye, the plaintiff’s appearance may be improved over that of his natural eye, whitened as it was (due to scarring of the cornea). However, when this artificial eye is removed, the plaintiff is far more disfigured with the sightless hole in his head.
One might similarly contend that аn employee with false teeth is better off than with his half-way decayed natural teeth. The jurisprudence has neverthless consistently allowed disfigurement-impairment of function awards for loss of the natural teeth: Though upon insertion of false dentures his appearance and chewing may be improved, without dentures he has no teeth. See e. g., Frugé v. Hub City Iron Works, Inc., La.App. 3d Cir.,
I therefore respectfully dissent.