Scott v. Sears, Roebuck & Co.Scott v. Sears, Roebuck & Co.
This is a workers’ compensation case. The defendant, Sears Roebuck & Company, appeals from a judgment in favor of the plaintiff, Percy Scott, for permanent partial disability, interest, penalties, attorney‘s fees and costs. Plaintiff did not appeal nor answer defendant‘s appeal. We amend and affirm.
It is not contested that Scott injured his back while working as a porter in defendant‘s Mall St. Vincent store in Shreveport. The injury occurred on September 7, 1978.
The treatment of Scott‘s back injury required two separate operations. Scott was initially treated conservatively and attempted to return to work a few weeks after he was hurt. On that occasion Scott had to quit working because of pain after only about two hours. He has not worked since.
The first operation was performed by Dr. A. E. Dean, Jr. on April 3, 1979. It was a hemilaminectomy and removal of a damaged disc at the L4 level. On February 26, 1980 Dr. Dean performed the second operation. That time he again did a hemilaminectomy and removed a damaged disc at the L5 level. Dr. Dean also performed a decompression and posteriolateral fusion in the second operation.
Sears paid Scott full workers’ compensation benefits through October 18,1980. Reduced benefits were paid for the remainder of October when all payments were terminated. Scott then brought this suit.
We initially address plaintiff‘s request, made in brief, for an increase in attorney‘s fees. As Scott has not answered defendant‘s appeal, nor taken his own, this request for an increase in the attorney‘s fee award may not be considered by this court.
We now consider Sears’ assignment as error the trial judge‘s denial of its motion for continuance based on incomplete discovery and an oral representation that a material witness would be absent. Sears argues that this motion was based on a peremptory ground under
“A continuance shall be granted if ... a material witness has absented himself without the contrivance of the party applying for the continuance ...”
The allegedly material witness whose absence forms the basis of the motion is Mr. Stanley Morris, an attorney in the Sears legal department. Morris was the Sears employee who made the decisions as to plaintiff‘s request for workers’ compensation. It was apparently Morris who ordered the reduction in and then termination of Scott‘s workers’ compensation benefits.
Sears requested ten days notice of when the case was set for trial. Sears did not suggest, and the record does not indicate, that it did not receive that notice. Thus, we have Sears claiming a peremptory continuance because with ten days notice it could not get its own employee, Stanley Morris, to Shreveport for the trial.
The reason Sears gives for its inability to have Morris at the trial is that he had been transferred from Dallas to Atlanta and could not be reached since he was in the process of moving. That excuse is unimpressive. It is inconceivable to this court that with ten days notice Sears could not have its own employee in Shreveport for the trial if it had exercised diligence.
It is not error to refuse a continuance to a party who has made no genuine diligent attempt to secure the attendance of the alleged material witness. Thompson v. Warmack, 231 So.2d 636 (La.App. 3d Cir. 1970). Under the facts here presented we find Sears has not made a diligent attempt to secure the attendance of Morris. This amounts to contrivance on the part of Sears within the contemplation of
The other ground for Sears’ pre-trial motion for continuance is that discovery was not complete. The decision to grant or deny this motion lay within the discretion of the trial judge.
This suit was filed in November, 1980, and was not tried until February 19, 1981. While this may be an unusually short time between filing suit and trial of the case, we believe there was ample time for all needed discovery. That Sears failed to pursue discovery with greater vigor should not be allowed to deny Scott the opportunity for an early trial. We find no abuse of discretion by the trial judge. There was no error in denying defendant‘s pre-trial motion for continuance.
Sears assigns as error that the trial judge allowed Dr. Phillip Osborne to testify. The testimony of Dr. Osborne, Director of the Pain and Rehabilitation Center, was that plaintiff displayed some objective symptoms which were consistent with his complaints of pain but that he could not quantify the amount of pain Scott felt. Thus, the general effect of Osborne‘s testimony was to buttress plaintiff‘s testimony and credibility.
Sears contends that it did not learn of Osborne‘s opinion and that it would be used at trial until the morning of the trial. Therefore, Sears argues, it should have been given a continuance.
There was no pre-trial order listing the witnesses in this case. However, the plaintiff‘s answers to defendant‘s interrogatories indicated that plaintiff intended to call as witnesses the physicians he had seen. Both the deposition of Dr. Dean taken on February 3 and the plaintiff‘s answers to interrogatories filed February 17 state that plaintiff had gone to the Pain and Rehabilitation Center for tests.
The record does not indicate that Sears actually requested a continuance because of surprise by Osborne‘s testimony, but even if it did it was not error to deny it. The request would not have been based on a peremptory ground under
Sears relies on Harrell, supra. We do not think that our decision is at odds with that case. Harrell does not require a continuance when there is surprise medical evidence. It only holds that it is not error to grant a continuance under such circumstances. That does not mean that it is error to deny a continuance in such a circumstance because Harrell also recognizes that such a continuance is left to the discretion of the trial judge and will not be upset in the absence of clear abuse. This assignment is without merit.
Defendant contends the trial judge committed error when he found plaintiff had established permanent partial disability. A worker is partially disabled if he cannot perform the duties of his former employment but can still do other work.
Sears argues that there is no evidence in the record that supports a finding of permanent partial disability. A review of the evidence does not support this conclusion.
Dr. Dean testified by deposition on February 3, 1981. In his deposition Dean stated that Scott was very near his maximum improvement at that time and that Scott was unable to perform heavy lifting, stooping, and bending, all of which activities were required by plaintiff‘s job at Sears. Both plaintiff and Johnny O‘Neal, a part-time porter at Sears, testified as to the duties and requirements of the job of porter. They testified the work required heavy lifting, stooping and bending. The plaintiff testified he would not be able to perform those duties in his present condition.
Plaintiff and his nephew, Tony Lee Scott, both testified that plaintiff experiences considerable pain in most types of physical activity. Scott testified he was unable to rake his yard or make his bed because of the pain he experiences in performing those tasks. Plaintiff testified that he suffered pain if he had to stand for more than short periods of time and that he had to spend much time recumbent in order to alleviate the pain in his back. Dr. Osborne testified that plaintiff had objective symptoms which were consistent with his complaints of back pain.
We think the record clearly shows that at the time of maximum recovery plaintiff was unable to perform the heavy labor and the stooping and bending required to be a porter. It is obvious that if Scott cannot work as a porter when he is as well as he is going to get he will never be able to work as a porter. The trial judge was correct in finding Scott partially disabled. We do note that the judgment incorrectly referred to plaintiff as permanently partially disabled but properly specified that the benefits awarded were under the provisions of
The defendant assigns as error the trial judge‘s finding that its termination of benefits was arbitrary and capricious. Whether or not a termination of benefits is arbitrary, capricious or without probable cause depends primarily on the facts known to the employer at the time of its action. Lee v. Smith, 248 La. 16, 176 So.2d 413 (1965); DeJean v. B. F. Trappey‘s Sons, Inc., 285 So.2d 297 (La.App. 3d Cir. 1973); Arthur v. McConnell, 286 So.2d 499 (La. App. 2d Cir. 1973); Basco v. State of La., Dept. of Corrections, 335 So.2d 457 (La.App. 1st Cir. 1976); Parker v. Louisiana Forestry Com‘n., 359 So.2d 252 (La.App. 2d Cir. 1978). The determination of whether the employer‘s conduct is arbitrary, capricious or without probable cause is a question of fact. Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977). Therefore, we may not disturb the trial court‘s finding unless it is manifestly erroneous. Arceneaux, supra.
The facts surrounding the termination of benefits are clear. Scott was partially disabled but Dr. Dean felt he might be capable of performing light duty work. Sears attempted to have Scott return to work in some light duty position. Scott refused because he felt it would be too painful to do even light duty work. Sears then terminated Scott‘s workers’ compensation benefits. The medical reports which Sears had received from Dr. Dean when it reduced plaintiff‘s compensation in October of 1980 and when it terminated the compensation in November indicated only that Scott could return to light work. Sears had no medical evidence contrary to Dr. Dean‘s reports.
Sears takes the position that an employer is not obligated to pay workers’ compensation benefits to an employee who is capable of gainful activity. Sears bases this contention on
Sears contends that “actually earns” should be read as “actually earns or is capable of earning.” Under that interpretation no benefits would be due as Scott was offered light duty work with Sears which paid the same as his old job as a porter.
The contention here made by Sears was made and rejected in Mayes v. Louisiana-Pacific Corp., 379 So.2d 46 (La.App. 3d Cir. 1979), writ refused La., 381 So.2d 1232. In light of the extensive discussion of this argument in Mayes we do not feel any useful purpose would be served by a lengthy discussion of the contention here. We conclude that when the legislature stated “actually earned” it meant actually earned. Mayes and LeBlanc, supra.
When Sears terminated benefits it knew Scott was partially disabled and was not earning any wages. Thus, under the language of
Sears’ final assignment of error is that the attorney‘s fees awarded by the trial judge were excessive. Sears bases this contention on the amount of time plaintiff‘s attorney spent on this case. Sears argues that the award amounts to over $100 per hour and is therefore excessive.
There was testimony from Donald R. Miller, a Shreveport attorney, that in his view a fee of $5,000 would be appropriate in this case. The record shows that plaintiff‘s attorney had spent between 20 and 24 hours on this case prior to trial. The trial took two days and was brought to a successful conclusion for plaintiff. Further, in recent cases awards of attorney‘s fees as high as $5,000 have been allowed. Parker, supra; Wactor v. Gurtler Hebert Const. Co., 343 So.2d 383 (La.App. 4th Cir. 1977); Fazande v. Continental Grain Co., 363 So.2d 1253 (La.App. 4th Cir. 1978); DeVillier v. Highlands Ins. Co., 389 So.2d 1133 (La.App. 3d Cir. 1980).
The trial court has great discretion in fixing the amount of attorney‘s fees. Wactor, supra; Carter v. Roy O. Martin Industries, Inc., 336 So.2d 1002 (La.App. 3d Cir. 1976). The award of $3,500 was within that discretion. This assignment of error is without merit.
For the reasons set forth in this opinion we amend the judgment to eliminate the reference to plaintiff‘s disability as “permanent partial disability” and recast the first paragraph of said judgment to read as follows:
ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, PERCY SCOTT, and against the defendant, SEARS ROEBUCK & CO., for Worker‘s Compensation benefits for partial disability under