Bordelon v. Vulcan Materials Co.

454 So. 2d 168, 1984 La. App. LEXIS 9206
CourtLouisiana Court of Appeal
DecidedJune 26, 1984
DocketNo. 83 CA 0882
StatusPublished
Cited by5 cases

This text of 454 So. 2d 168 (Bordelon v. Vulcan Materials 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
Bordelon v. Vulcan Materials Co., 454 So. 2d 168, 1984 La. App. LEXIS 9206 (La. Ct. App. 1984).

Opinion

LANIER, Judge.

This is a suit by an employee, David Keith Bordelon, against his employer, Vulcan Materials Company (Vulcan), for workmen’s compensation benefits, medical expenses and statutory penalties alleging that the employee sustained a permanent partial loss of the use or function of both eyes in a job related accident. The district court rendered a judgment in favor of the employee for compensation benefits of $44 per week for 100 weeks, less a credit for 32 weeks of scheduled loss of use benefits and 6-⅜ weeks of temporary total benefits previously paid, and all past and future medical expenses resulting from the accident, less a credit of $2,150.84 previously paid. The claim for statutory penalties was dismissed. From this judgment, the employee devolutively appealed.

FACTS

At trial, the parties stipulated to “Established Facts”, the trial judge accepted the stipulations and quoted these facts in his reasons for judgment, and we adopt these facts as our own as follows:

Prior to and on the day of the accident that is the subject of this law suit, David K. Bordelon was employed by Vulcan Materials Company as a control technician at the facility Vulcan operates in Ascension Parish, Louisiana. His duties included, among others, taking readings on valves and gauges on pumps and boilers.
The accident that is the subject of this law suit occurred on December 14, 1979, at the facility of Vulcan Materials Company located in Ascension Parish, Louisiana.
During normal working hours in the course and scope of his employment with Vulcan Materials Company, David Keith Bordelon made a visual inspection of the flame in the interior of a boiler from the inspection port mounted upon the exteri- or of the boiler. In the process of making this inspection, the glass window of the boiler through which David K. Borde-[171]*171Ion made his inspection exploded in his face.
The accident was reported to Vulcan Materials Company within several minutes after it happened.
As a result of the accident, David K. Bordelon was off work from December 14, 1979, through January 29, 1980; and on January 30, 1980, he resumed his duties as a control technician with Vulcan Materials Company.
At the time of the accident, the average weekly wage paid in all employment subject to the Louisiana Employment Security Law was Two Hundred Twenty-Two and No/100 ($222.00) Dollars. At the time of the accident, the average weekly wage paid by Vulcan Materials Company to David K. Bordelon amounted to Three Hundred Twenty-Three and 40/ioo ($323.40) Dollars.
Vulcan Materials Company paid to David K. Bordelon workmen’s compensation from and including December 15, 1979, through and including January 29, 1980, at the rate of One Hundred Forty-Eight and No/100 ($148.00) Dollars per week. This represents 64Aths weeks of compensation and totals Nine Hundred Seventy-Two and 56/ioo ($972.56) Dollars.
Vulcan Materials Company also paid David K. Bordelon workmen’s Compensation from and including January 9, 1981, through and including August 20, 1981, at the rate of Forty-Four and No/100 ($44.00) Dollars per week. This represents thirty-two (32) weeks of compensation and totals One Thousand Four Hundred Eight and No/100 ($1,408.00) Dollars. These weekly compensation benefits (at the rate of $44.00 per week) were based upon Vulcan’s interpretation of a medical report by Dr. Randal Caffarel addressed to counsel for plaintiff dated December 15,1980, which was forwarded by counsel for plaintiff to Mr. Ron Ewing in Vulcan’s claim office in Birmingham, Alabama. This report of December 15, 1980, was received by Vulcan on January 3, 1981. The check of Vulcan Materials Company for workmen’s compensation for the period January 9, 1981, through January 15, 1981, was mailed in Birmingham, Alabama, the location of the claim office of Vulcan Materials Company, addressed to the attorney of David K. Bordelon, and was received by him on January 17, 1981. Weekly benefits at the rate of $44.00 per week were discontinued on August 20, 1981, based upon Vulcan’s interpretation of the deposition testimony of Dr. Randal Caffarel.
Accordingly, the total amount of workmen’s compensation paid by Vulcan Materials Company to David K. Bordelon is Two Thousand Three Hundred Eighty and 66/ioo ($2,380.56) Dollars.
In addition, the medical paid by Vulcan Materials Company on behalf of David K. Bordelon amounts to Two Thousand One Hundred Fifty and 84/ioo ($2,150.84) Dollars, being all medical expenses submitted thus far.

DISABILITY

The district judge found that “plaintiff herein has sustained the loss of use or function of his eye.” Apparently, the district court found that Bordelon proved that he sustained permanent partial loss of use or function of one of his eyes (although he did not state which eye), thereby entitling him to workmen’s compensation benefits pursuant to La.R.S. 23:1221(4)(i) and (o).1 [172]*172Bordelon contends that he sustained permanent partial loss of use or function of both eyes and should be compensated accordingly.

The claimant in a workmen’s compensation proceeding bears the burden of proving the nature and extent of his disability by a preponderance of the evidence. The issue of whether or not he has carried this burden must be determined by examining the totality of the evidence, including both lay and medical testimony. Thornell v. Payne and Keller, Inc., 442 So.2d 536 (La.App. 1st Cir.1983), writ denied, 445 So.2d 1231 (La.1984).

Only two witnesses testified at trial: Bordelon and Dr. Randal Caffarel. The parties also entered a stipulation at trial that if Dr. Carl J. Steffak, engaged in the general practice of medicine, were called to testify he would testify substantially as follows:

1. That on June 28, 1978, at the request of Vulcan Materials Company, he conducted a pre-employment physical examination of David Keith Bordelon, Plaintiff in these proceedings.
4. That at the time of this examination, Mr. Bordelon’s vision was normal and there was no evidence of any disease or injury to Mr. Bordelon’s eyes.
6. That at the time of his examination, Mr. Bordelon did not need eye glasses or other corrective devices for his eyes.

David Bordelon testified that when the accident occurred he was employed by Vulcan as a control technician. His duties were to monitor instruments (pressure gauges, temperature gauges and other like instruments) and take readings in the control room at Vulcan’s plant in Geismar.

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Bluebook (online)
454 So. 2d 168, 1984 La. App. LEXIS 9206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bordelon-v-vulcan-materials-co-lactapp-1984.