Bates v. American Insurance Co.

158 So. 2d 70, 1963 La. App. LEXIS 2049
CourtLouisiana Court of Appeal
DecidedNovember 12, 1963
DocketNo. 5978
StatusPublished
Cited by3 cases

This text of 158 So. 2d 70 (Bates v. American Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bates v. American Insurance Co., 158 So. 2d 70, 1963 La. App. LEXIS 2049 (La. Ct. App. 1963).

Opinion

LANDRY, Judge.

This is a suit for workmen’s compensation benefits wherein the injured employee, Eddie W. Bates, plaintiff herein, prays for judgment decreeing his total and permanent disability as a pipefitter by virtue of an accident which admittedly occurred November 30, 1961, during the course of his employment by Ross Construction Company, causing injury to plaintiff’s left hand. The trial court rejected plaintiff’s demand for compensation for total permanent disability but found that plaintiff sustained 15% disability of the left hand as a result of the accident. The trial court also found plaintiff’s weekly wages to be $152.00 and, predicated on such findings, awarded plaintiff compensation in the sum of $14.82 weekly for 150 weeks subject to credit for compensation paid, said amount awarded being 15% of 65% of plaintiff’s weekly wage. From the judgment rendered below plaintiff has appealed assigning as error the [71]*71trial court’s refusal to award him compensation for total permanent disability. Defendant, American Insurance Company, compensation insurer of plaintiff’s employer, Ross Construction Company, has not answered the appeal. In defendant’s brief filed before this court, however, counsel for defendant insurer takes the position the judgment of the trial court is correct and should be affirmed.

From the foregoing it is readily apparent the sole issue before the court on this appeal is the extent of appellant’s injury and the correctness of the trial court’s judgment in rejecting appellant’s claim for total permanent disability and awarding instead compensation for the partial loss of use of a specific member.

Plaintiff, who is right-handed, maintains he is totally and permanently disabled by reason of loss of grip in his left hand to such extent he is restricted and impeded in the use of heavy tools with which a substantial portion of his duties are performed. He further contends his loss of grip materially impairs his ability to climb. In addition, he argues the use of heavy tools and climbing constitute substantial portions of his duties and his inability to perform such important aspects of his trade renders him eligible for compensation for total permanent disability. It is further argued on plaintiff’s behalf that residual disability sustained by him makes it impossible for plaintiff to work without appreciable pain. The gravamen of plaintiff’s complaint, however, as we understand it from the brief of counsel, is the contention the trial court erred in not finding plaintiff totally and permanently disabled because the loss of grip shown renders plaintiff incapable of performing a substantial portion of his duties. In support of the position assumed, learned counsel for appellant cites and relies mainly upon Porter v. New Amsterdam Casualty Company, La.App., 99 So.2d 478; Michel v. Maryland Casualty Co., La.App., 81 So.2d 36; and Strother v. Standard Accident Ins. Co., La.App., 63 So.2d 484.

The evidence reveals plaintiff sustained a crushing injury to his left hand on November 30, 1961, when a 17 foot length of three inch pipe fell and struck his hand. Plaintiff was taken to Baton Rouge General Hospital where he was seen by Dr. Thomas T. Fenton, a General Practitioner. Dr. Fenton found the injured hand to be badly contused on both the palm and back and also noted a splitting of tissues on both the palmer and dorsal surfaces. X-ray examination revealed a comminuted fracture of the second metacarpal of the hand at the point where the metacarpal forms the joint with the left first or index finger. Dr. Fenton explained that whereas in lay terminology the fracture would be considered as a fracture of the left index finger, in reality the break involved the bone which forms the palm of the hand and the joint of the index finger or, in other words, the distal end of the second metacarpal. He further noted the fracture extended into the joint mentioned. Plaintiff’s injured hand was splintered by Dr. Fenton and plaintiff administered sedation.

In substance, Dr. Fenton testified plaintiff remained under his care and treatment from the date of the accident until June 5, 1962, during which interval plaintiff visited his office on several occasions. Dr. Fenton also made a cursory examination of plaintiff’s hand on the date of the trial, namely, December 14, 1962. In the opinion of Dr. Fenton, plaintiff has sustained a 50% loss of flexion of the left index finger whereas the rather minor injury to the remaining fingers of the left hand was found to have healed completely with no residual disability. Predicated upon the finding of 50% loss of flexion of the left index finger, Dr. Fenton is of the opinion plaintiff has suffered a significant loss of grip in the left hand. He frankly conceded, however, his evaluation of plaintiff’s flexion loss is purely a rough estimate since he acknowledged he did not possess instruments by means of which such loss is measured and computed by specialists. He further stated his admittedly perfunctory examination of plain[72]*72tiff’s hand made on the date of trial disclosed no change in the condition previously noted. Dr. Fenton was also of the opinion the residual disability found would affect plaintiff’s ability to exert a pulling force in the handling of large tools considering pulling involved the use of the fingers but admitted it would have little effect on- plaintiff’s ability insofar as pushing movements were concerned because pushing could be accomplished with the palm of the hand without appreciable finger involvement. In the opinion of Dr. Fenton, plaintiff’s loss of grip and inability to work without pain, which latter diagnosis was based almost exclusively upon plaintiff’s subjective complaints, totally disabled plaintiff from performing a substantial portion of the duties of a pipefitter as Dr. Fenton understood them.

Plaintiff was also seen on several occasions by Dr. Charles B. Cracraft, Orthopedist, upon referral by Dr. Fenton. On the occasion of Dr. Cracraft’s first examination which occurred January 20, 1962, plaintiff was rioted to be suffering the effects of a crushing injury to the left hand. Dr. Cracraft observed a healed laceration scar on the back or dorsal surface of the hand attended by some swelling and also a healed puncture type scar in the middle of the palmer crease. Motion of the proximal and distal IP joints of the third, fourth and fifth left fingers were found complete and painless. Some restriction of motion was observed in the MP joints of the third, fourth and fifth fingers in that they could then be brought to within only approximately one-half inch of the palm. Dr. Cracraft observed slight impairment of motion of the proximal and distal IP joints of the index finger but found motion of the MP joint of the index finger to be markedly restricted and painful. Plaintiff’s thumb was found to be unaffected. At this time Dr. Cracraft made no attempt to evaluate the degree or extent of plaintiff’s disability as he felt plaintiff had not yet attained maximum improvement. By way of therapy, Dr. Cracraft recommended hot paraffin baths.

On March 2, 1962, Dr. Cracraft again saw plaintiff and found plaintiff had regained full flexion of the third, fourth and fifth fingers of the left hand. He noted, however, continued marked restriction of motion of the MP joint of the index finger’ but was of the opinion the condition of the index finger would improve further. Plaintiff visited Dr. Cracraft in May, June and July, 1962, and finally on November 28, 1962, on which latter date Dr. Cracraft considered plaintiff’s hand achieved maximum improvement. Dr.

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Bluebook (online)
158 So. 2d 70, 1963 La. App. LEXIS 2049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bates-v-american-insurance-co-lactapp-1963.