McGee v. State, Through its Agent, Board of CommissionersMcGee v. State, Through its Agent, Board of Commissioners
- Reporters:
- Before:
- Boutall, Redmann, Beer
Luther McGee sued for workmen‘s compensation benefits claiming tоtal and permanent disability, and prosecutes this appeal from a judgment awarding partial benefits. His employer, Board of Commissiоners, Port of New Orleans, also appeals.
The trial judge found McGee to be only partially disabled and granted him benefits at the rate of $18.59 per week for 175 weeks, subject to a credit of 42 weeks during which McGee worked and received wages in lieu of compensаtion, and further credit of $650 compensation already paid. Appellant McGee disputes each of these items, contending 1.) thаt he is totally and permanently disabled; 2.) that no credit should be granted for the 42 weeks for which he was paid wages because he worked in severe pain; and 3.) he should have been granted penalties and attorney‘s fees for nonpayment of his claim. The appеllant Board of Commissioners contends that the judgment improperly allows benefits for this injury at a time when McGee is receiving maximum benefits due to a second, unrelated injury.
While at work on July 13, 1974, McGee slipped and injured his right knee. His doctor examined the knee and offered some trеatment, telling him to stay off the knee for a while, and on July 22, 1974 he returned to work. His knee problem did not resolve however, and he continued treatment with other doctors from October to January 6, 1975, at which time he was hospitalized for surgical repair of a tear of the right mediаl meniscus. Up to this time, plaintiff had been paid his usual salary by the employer. Beginning January 6, he was paid accident compensation of $65.00 per week to March 17, 1975. He returned to work for his employer from that date until his second injury, an injury to the back unrelated to this, on July 28, 1975, and was paid wages up to that time. From July 28 he has received compensation of $65.00 per week for his second injury.
The basic issue to be determined is the extent of the claimant‘s injuries.1 Plaintiff testifies, and the medical records show, that plaintiff continued to experience some difficulty with his right knee, and it was some time before the doctors were able to ascertain with certainty that he was suffering from a cartilage tear in the knee. The extent of McGee‘s pain and suffering, and the inability to do his work as a carpenter during this period are in disputе. If McGee‘s testimony is to be wholly believed, he has worked with such pain and suffering
The conclusions of the trial judge are somewhat ambiguous because he found that McGee was only partially disabled during this рeriod, yet at the same time granted the employer credit for wages paid in lieu of compensation. There is ample evidеnce to support a finding of partial permanent disability to McGee‘s leg,
The basic test for determining whether wages are paid in lieu of compensation is whether the wages paid after the injury are actually earned. This is detеrmined by the facts and circumstances of a particular case. Madison v. American Sugar Refining Co., 243 La. 408, 144 So.2d 377 (1962); Francis v. Kaiser Aluminum & Chemical Corp., 225 So.2d 756 (La.App. 4th Cir. 1969); Pender v. National Fire and Marine Insurance Co., 255 So.2d 95 (La.App. 3rd Cir. 1971).
McGee testified that after the first week he returned to work doing his regular duties as a carpenter. Not only was he not put on light work, but he continued to work overtime during most of the period. His testimony is clear that, even though he worked with pain and was forced to change his method of doing some work because of inability to fully bend his knee, he did аll of the work that was normally required of him. The employers’ witnesses (one appearing and one stipulated) testified that they worked аlongside of McGee and he did his work the same as anyone else. There is no substantial evidence to contradict this and, except for the first week, McGee clearly earned his wages. The facts of partial disability and earned wages apply equally to McGee‘s condition after he resumed work following his operation. Accordingly, we hold the trial judge in error in awarding credit to the employer for 42 weeks of wages paid in lieu of compensation and reduce the credit to one week.
The last issue raised by McGee is his рrayer for penalties and attorney‘s fees for failure to the employer to pay benefits timely. In view of the dispute between thеm, and considering the ruling of the trial court, we cannot say the payments were unreasonably withheld, and so deny them.
Passing to the employеr‘s contentions, we note that the employer has been paying maximum benefits for the second accident since July 28, 1975 under the provisiоns of
The Board of Commissioners further contends that the trial court was in error in
For the reasons above expressed, the judgment appealed from is amended to provide that the credit of 42 weeks is reduced to a credit of 1 week only, that the weekly payments due thereunder shall be prorated where applicable with the payments made by the defendants on plaintiff‘s second claim, not to exceed $65.00 per week, and the defendant is cast for costs only as provided in
AMENDED AND AS AMENDED, AFFIRMED.