Butts v. Procter & Gamble Co.

465 So. 2d 265, 1985 La. App. LEXIS 8394
CourtLouisiana Court of Appeal
DecidedMarch 6, 1985
DocketNo. 84-169
StatusPublished
Cited by1 cases

This text of 465 So. 2d 265 (Butts v. Procter & Gamble 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
Butts v. Procter & Gamble Co., 465 So. 2d 265, 1985 La. App. LEXIS 8394 (La. Ct. App. 1985).

Opinion

DOMENGEAUX, Judge.

Plaintiff brought this suit seeking worker’s compensation benefits for partial disability under the provisions of La.R.S. 23:1221. After trial the lower court found plaintiff to be partially disabled and awarded him penalties and attorney’s fees. From that judgment defendant has appealed and plaintiff has answered the appeal asking only for an additional amount of attorney’s fees to cover the cost of defending this appeal.

The trial court gave extensive well-written reasons for judgment. We take the liberty of quoting portions of those reasons which we adopt as our own and to which we will add further comment. The trial court’s reasons for judgment state:

“... The plaintiff, Richard M. Butts, was employed by the defendant, the Procter and Gamble Company. While working in the defendant’s plant on April 3, 1979, plaintiff slipped and fell and injured his left knee. Defendant paid plaintiff weekly benefits for various periods and medical expenses until March 7, 1980, on which date defendant terminated plaintiff for excessive absences and paid him a lump sum of $6,778.00, which represented advanced payment of benefits for 159 weeks at $42.00 per week under L.S.A.-R.S. 23:1221(4)(o) dealing with the permanent/partial loss of use or function of a member of the body. Thereafter plaintiff filed his suit on May 27, 1982 contending he is permanently and partially disabled and entitled to benefits under L.S.A.-R.S. [23:] 1221(3). Plaintiff also seeks penalties and attorneys fees. The matter was tried on May 17-20, 1983, and the evidence was held open for an additional deposition by Doctor T.E. Banks. The case was submitted on briefs filed by plaintiff and defendant.

“The issues are:

“(1) Is plaintiff entitled to benefits for partial disability under L.S.A.-R.S. [23:] 1221(3)?

“(2) Is plaintiff entitled to penalties and attorneys fees?

“There is no dispute that beginning in 1977 plaintiff worked as an upper level operator, or Technician III, for defendants at its plant near Pineville, Louisiana. His duties required that he climb steps between three levels in the plant, that he climb up into and clean soap storage bins, clean the transfer conveyers from the bins to the packing area, generally sweep and mop the [267]*267area, handle 100 pound sacks of material used to make glue, wash down the stairs on the first and second floors of the plant with a scraper and scrub brush, monitoring the pangborn operation during the soap making process and poking the bins. On April 3, 1979, plaintiff was cleaning a storage bin. As he descended the stairs that provided ingress and egress to the bin, he slipped and fell three or four feet, landing on his left knee. Plaintiff reported the accident to his immediate supervisor, Jimmy Humphries. The next day the plaintiff was seen by Doctor William Brown, the company physician, who referred plaintiff to Doctor Douglas Gamburg, an orthopaedic specialist in Alexandria.

“Doctor Gamburg saw plaintiff on April 4, 1979 and continued to see and treat him through May 14, 1979. It was this physician’s opinion that as a result of the work related accident on April 3, 1979 plaintiff had aggravated a pre-existing patello femoral erepitance and arthritis of the left knee, as evidenced by pain and modest effusion. Doctor Gamburg prescribed drugs and release from any duties which required climbing or squating. [sic]

“On May 21, 1979, plaintiff saw Doctor T.E. Banks, also an orthopaedic surgeon in Alexandria. Doctor Banks had previously seen and treated plaintiff for an injury to his left knee in 1970, when plaintiff, who is now 32 years of age, had just graduated from high school. During 1970, Doctor Banks also saw plaintiff for a problem with his right knee. In 1973, Doctor Banks had again seen plaintiff for a football injury to his left knee. In his May 10, 1983 deposition, Doctor Banks explains that plaintiffs problems with both knees go back to his adolesence [sic] and that he suffered knee injuries several times, one incident being an automobile accident and another being a football injury. It was Doctor Banks’ opinion that the difficulty is primarily a patello femoral abnormality which has progressively worsened due to the traumatic injuries. When Doctor Banks saw plaintiff on May 21, 1979, he was of the opinion that the April 3, 1979 injury at the Procter and Gamble Plant aggravated the pre-existing condition, as was evidenced by acute post-traumatic bursitis. He found no effusion on that occasion and recommended that plaintiff could return to light duties which did not involve climbing, squating, [sic] or twisting of the knee.

“Plaintiff returned to work performing light duties, but he continued to complain of pain in his left knee, so the defendant sent him to see Doctor D.M. Kingsley, also an orthopaedic surgeon in Alexandria. Doctor Kingsley first saw plaintiff on June 27, 1979. This physician diagnosed a flap of cartilage loose on the left patella and also a small rough spot on the condyle of the femur. On July 3, 1979, Doctor Kings-ley performed surgery to remove the flap of cartilage and shave smooth the rough area on the femur.

“Following this surgery, plaintiff returned to work at Procter and Gamble on September 11, 1979. He was assigned light duties which did not involve climbing, squating, [sic] stooping or strenous[sic] weight bearing. Defendant created for plaintiff a special job classification, entitled “Modified Technician III”. Generally, these lighter duties included cleaning up the work area and riding a tugger used to pull trash cans out to a dump where he used a fork lift to dump the cans. Additionally, plaintiff was permitted to sit down and rest whenever his left knee experienced pain or discomfort.

“One of the issues at trial was whether plaintiff was disabled from performing the duties of this light duty job. Plaintiff testified that even these light duties continued to cause pain and swelling in his left knee. This testimony was corroborated by plaintiff’s wife and his mother as well as a Reverend Don Privett who testified that during this period when plaintiff was performing the modified job duties, he experienced pain and swelling in his left knee. On the other hand, the officials at Procter and Gamble went to great lengths in an effort to prove plaintiff could perform all of the duties of the modified job. Apparently, Procter and Gamble takes great [268]*268pride in rehabilitating injured employees. According to the testimony of their claims manager, this is the first case that has ever been tried against them for worker's compensation benefits. They actually had Doctor Banks go to the plant and view the tugger and the fork lift and the other equipment used by plaintiff on the modified job and review the duties of that job. Doctor Banks expressed the opinion that at the time he thought plaintiff could perform all of the duties of the modified job. Also, defendant points to the testimony of Doctor Kingsley who reviewed the duties of the modified job and stated that he thought that at the time plaintiff could probably perform those duties.

“The court does not find it necessary to decide whether plaintiff was disabled from performing the duties of the modified job. Regardless of this issue, the fact is that on March 7, 1980, Procter and Gamble terminated plaintiff’s employment for excessive unexcused absences from the modified job. Following this termination, plaintiff applied for and began receiving unemployment benefits, and he sought other employment.

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Related

Butts v. Procter & Gamble Co.
467 So. 2d 1135 (Supreme Court of Louisiana, 1985)

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Bluebook (online)
465 So. 2d 265, 1985 La. App. LEXIS 8394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butts-v-procter-gamble-co-lactapp-1985.