Black v. Lofland Co.

869 So. 2d 264, 2004 La. App. LEXIS 383, 2004 WL 352093
CourtLouisiana Court of Appeal
DecidedFebruary 26, 2004
DocketNo. 37,862-WCA
StatusPublished
Cited by2 cases

This text of 869 So. 2d 264 (Black v. Lofland 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
Black v. Lofland Co., 869 So. 2d 264, 2004 La. App. LEXIS 383, 2004 WL 352093 (La. Ct. App. 2004).

Opinion

DREW, J.

Cody Black was employed as a general laborer by H & S Services, Inc. d/b/a Snelling Temporaries Services, which assigned him to work at Lofland Company. On November 17, 1999, after having worked at Lofland for approximately one week, Black injured his hands while pushing rods measuring approximately 15 feet in length into a rebar machine. As Black used his left hand to guide a rod, his left hand was pulled into the rebar machine, and three of his fingers (index, middle, and small) on that hand were severed. Black was unable to recall what happened next, but he alleged in his claim that when he attempted to use his right hand to pull his left hand from the rebar machine, his right hand was crushed.

Revascularization and nerve repairs were performed on Black’s left ring finger by Dr. Forrest Wall. K-wires were placed in the right fingers, and the soft tissue was repaired on these fingers. The next month a skin graft was done on the left hand. Dr. Wall subsequently amputated Black’s right small finger at the distal interphalangeal joint.

Dr. Philip Osborne evaluated Black in June of 2000 and assigned the following impairment ratings for Black’s fingers and hands:

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[¡According to Dr. Osborne, total impairment of Black’s left hand was 59%, which converts to 53% impairment of the left upper extremity, which further converts to 32% whole person impairment. Total impairment of Black’s right hand was 44%, which converts to 40% impairment of the right upper extremity, which further converts to 24% whole person impairment. Dr. Osborne concluded that overall Black had 48% whole person impairment. In his report to Dr. Wall, Dr. Osborne wrote that Black could easily do sedentary and light work, with restrictions against repetitive gripping or grasping, climbing ladders, or working at unprotected heights.

Black, who was left-hand dominant prior to the accident, was deposed on June 18, 2001. Regarding his left hand, Black testified that he was unable to put his palm face down on a table because the left ring finger, which he was unable to straighten, was bent in toward the palm. His left thumb was unaffected by the accident which severed the index, middle, and small fingers on his left hand.

Black testified that he was able to place his right palm face down on a table and flatten his hand, except for his ring finger, which was bent upwards at the knuckle. The ring finger remained permanently in that position. Black was unable to make a fist with his right hand, but he was able to [267]*267meet his right index finger and right thumb at the ends. He was unable to otherwise bend the fingers on his right hand, but he could move them down to a 90-degree angle from the palm without bending them. The tip of his right small finger was removed by Dr. Wall during surgery.

| ¡¡Black lived with his parents from the time of the accident until February of 2001. Black testified that he could:

• Write, although sometimes his handwriting was not legible;
• “Hunt and peck” on a computer keyboard;
• Shave several times a week with an electric shaver;
• Fix his own sandwiches;
• Drive a car, even though he could not grip the steering wheel, as he used his palm and sometimes the area between his thumb and fingers to steer;
• Sweep and mop his apartment;
• Wash and iron his clothes;
• Use his right thumb to operate a TV remote control;
• Operate a touch-tone phone with his thumb;
• Turn on lights;
• Strip and make a bed in 10-15 minutes;
• Wipe a commode, shower, tub, and sink; and
• Operate a vacuum cleaner for a short period of time until the handle irritated his right hand, although he was only able to clean the area immediately around him because he could not stretch.

On August 27, 2001, Black was tragically murdered. His mother, Sylvia Black, was substituted as party plaintiff. Trial was held in this matter on October 8, 2002, and the WCJ rendered judgment on December 4, 2002. Black was awarded 70 weeks of permanent partial disability (“PPD”) benefits: 20 weeks for the loss of the left small finger, 20 weeks for the loss of the left middle finger, and 30 weeks for the loss of the left index finger. 1¿These payments were subject to a credit for the 97 weeks of indemnity payments already received by Black. The WCJ denied Black’s demands for:

• a lump sum award of $30,000 under La. R.S. 23:1221(4)(s);
• penalties and attorney fees relating to vocational rehabilitation services because the WCJ concluded that the defendants provided adequate vocational rehabilitation services; and
• penalties and attorney fees because the WCJ concluded that the defendants were not arbitrary and capricious in not paying PPD benefits.

The WCJ also granted defendants’ motion for involuntary dismissal in part.

Mrs. Black appealed the judgment. Defendants answered the appeal seeking attorney fees and costs for what they assert is a frivolous appeal.

Permanent Partial Disability Payments

Mrs. Black first argues on appeal that the WCJ erred in not awarding PPD benefits for the damage to her son’s left ring finger and right fingers. The WCJ awarded PPD benefits only for the loss of the three fingers on Black’s left hand.

La. R.S. 23:1221(4) sets forth the compensation for the anatomical loss of use or amputation of fingers:

4) Permanent partial disability. In the following cases, compensation shall be solely for anatomical loss of use or amputation and shall be as follows:
(a) For the loss of a thumb, sixty-six and two-thirds percent of wages during fifty weeks.
[268]*268(b) For the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent of wages during thirty weeks.
(c) For the loss of any other finger, or a big toe, sixty-six and two-thirds percent of wages during twenty weeks.
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|RThe parties dispute whether Dr. Osborne’s disability ratings comply with La. R.S. 23:1221(4)(q), which provides:

No benefits shall be awarded or payable in this Paragraph unless the percentage of the anatomical loss of use or amputation, as provided in Subparagraphs (a) through (o) of this Paragraph or the percentage of the loss of physical function as provided in Subparagraph (p) or (s) of this Paragraph is as established in the most recent edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment.”

However, it is unnecessary for this court to determine whether Dr. Osborne’s ratings comply with the above requirement. Even assuming that the evidence established that Black had been entitled to additional PPD benefits beyond those awarded by the WCJ, such benefits would have ended on the date of his death.

An employee’s right to workers’ compensation benefits terminates upon his death.

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869 So. 2d 264, 2004 La. App. LEXIS 383, 2004 WL 352093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-lofland-co-lactapp-2004.