Clement v. Scaffolding Rental & Erection Services, Inc.

480 So. 2d 813, 1985 La. App. LEXIS 10189
CourtLouisiana Court of Appeal
DecidedNovember 13, 1985
DocketNo. CA-3798
StatusPublished
Cited by2 cases

This text of 480 So. 2d 813 (Clement v. Scaffolding Rental & Erection Services, Inc.) 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
Clement v. Scaffolding Rental & Erection Services, Inc., 480 So. 2d 813, 1985 La. App. LEXIS 10189 (La. Ct. App. 1985).

Opinions

PRESTON H. HUFFT, Judge Pro Tem.

In this worker’s compensation case, the defendant employer and its insurer appeal from a judgment awarding plaintiff total [815]*815and permanent disability benefits based on a finding that he has only worked in “substantial pain” since his work related accident. Because the evidence indicates that plaintiff is capable of returning to his former work as a carpenter, albeit with some residual pain, we conclude that he is entitled only to a limited award, under LSA-R.S. 23:1221(4)(p), for a permanent non-disabling impairment of his neck.

On April 28, 1981, Raymond A. Clement, Jr., a union carpenter, sustained injury when a piece of metal scaffolding hit the back of his hard hat and knocked him to the ground. After emergency treatment at the job site, Clement saw Dr. William Brent, Jr., who diagnosed his condition as a sprain of the neck with cervical neurtis in the upper right shoulder girdle area.

Under Dr. Brent’s care, Clement received conservative treatment, including physical therapy, from April 29, 1981 until his discharge on August 26, 1982. During repeated office visits to his physician,1 he complained of back and shoulder pain, and underwent a myelogram and cervical traction during hospitalization from May 30 to June 4, 1982. Although a radiologist’s report showed a slight deformity and indentation in the cervical area, Dr. Brent found no sign of problems in the nerve roots or discs. No surgery is planned for plaintiff.

Following the accident, plaintiff returned to work for approximately a week to ten days. After a one-week layoff, he resumed work at another job site for an additional three weeks. Thereafter, he performed part-time work and odd jobs for friends and neighbors until he resumed work at a union job on October 15, 1981. He continued working until July 2, 1982, although he testified that it was with pain “all the time”. Clement then worked for a seven month period at another job site from late July or early August, 1982 until March, 1983, when he left because of a sinus infection. He worked occasionally thereafter, doing house construction and repairs, until January, 1984, when he took a union job at the World’s Fair site in New Orleans, with continued complaints of headaches and pain in his neck and shoulders.

Clement filed suit for total and permanent disability benefits on April 28, 1982. Following a trial on the merits on April 9, 1984, the trial court ruled in plaintiff’s favor. In written reasons for judgment decreeing plaintiff permanently and totally disabled, the trial judge stated:

“The Court is convinced from the whole web of the testimony that the plaintiff sustained a compensible injury on April 28, 1981, and since that time has received rather regular medical treatment, was hospitalized on two occasions, has worked intermittently since the day of the accident, and that his work was performed in substantial pain. The plaintiff has exhibited the blue print of a worker in pain-irritability-absenteeism-aspirin swallowing and frequent trips to various doctors....
“The Court is of the opinion that the plaintiff is totally and permanently disabled within the intent of the Louisiana Workmens Compensation Statute and Judgment will be rendered accordingly.”

Appealing, the defendant employer and its insurer contend that the trial judge erred in concluding that plaintiff had carried his burden of proving total permanent disability. We agree. Because the evidence only supports a conclusion that Clement’s residual pain, though significant, is non-disabling, we amend the trial court’s judgment to award Clement benefits under LSA-R.S. 23:1221(4)(p) for impairment of neck function.

Because plaintiff’s accident occurred on April 28, 1981, the question of his entitlement to permanent total disability compensation arises under former LSA-R.S. 23:1221(2), as amended in 1975, which provided for such benefits only if the employee cannot engage “... in any gainful occupation for wages whether or not the same or similar occupation as that in which [816]*816the employee was customarily engaged. ...” The Louisiana Supreme Court has interpreted this language according to the “odd lot” doctrine, whereby an injured plaintiff seeking permanent and total disability benefits must offer proof that the services that he is able to render post-accident are so limited in quality, quantity or dependability that there is no reasonably stable market for them because of his physical impairment, mental capacity, education, training, age, availability of employment in the area, or any other relevant factor. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980); Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Brown v. Mount Carmel Academy of New Orleans, 468 So.2d 645 (La.App. 4th Cir.1985).

In “substantial pain” cases under the “odd lot” doctrine, a worker acquires total disability status only if his pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market. Lattin v. Hica Corp., 395 So.2d 690 (La.1981); Du-sang v. Henry C. Beck Builders, Inc., supra. In compensation situations where pain is the “linchpin” to make out a prima facia case for classification as an odd lot worker, the pain accompanying routine physical tasks and attempts to return to work must be “substantial, serious, intense and/or severe”. Culp v. Belden Corp., 432 So.2d 847 (La.1983); Holland v. T.G. & Y. Stores, 451 So.2d 1317 (La.App. 1st Cir.1984).

Applying these criteria to the facts of the instant case, we conclude that plaintiff failed to carry his prima facia burden of proving that his pain classifies him as an “odd lot” worker. Although plaintiff testified that he has suffered “constant” pain during his work since the accident, it does not necessarily follow, as a matter of law, that he is “totally disabled” within the meaning of the applicable statute. Except for limited periods since the accident, Clement has resumed his work as a carpenter rather steadily and has performed his job well. He has found work out of his union hall, and is ready to take further employment as it becomes available.

The two medical witnesses who testified at trial were both of the opinion that Clement is capable of performing carpentry work. According to Dr. Brent, the treating physician, Clement has no percentage disability rating from the accident and can return to work as a carpenter doing most of the activities required of him without any residual disability. The second physician, Dr. Stewart Phillips, who examined plaintiff on December 10, 1982, has assessed a 10% impairment of function in plaintiffs neck. Dr. Phillips further testified, however, that Clement is capable of working as a carpenter with this 10% difficulty, although he will have “discomfort in his neck” if he looks all the way up, all the way back, or does heavy work such as repetitive lifting of weights of 20-25 pounds or more.

At the time of trial, Clement had been discharged by his treating physician and was under no continuing medical care. Plaintiff testified that his pain has never affected his work completely, although he has felt “uncomfortable” with overhead work and getting in “tight spots” requiring him to turn his head a certain way. Jude Lemoine, a construction superintendent at one of plaintiff’s post-accident job sites, testified that Clement was able to do his work without problems.

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Related

Loud v. Dixie Metal Co.
506 So. 2d 1355 (Louisiana Court of Appeal, 1987)
Clement v. Scaffolding Rental & Erection Services, Inc.
484 So. 2d 672 (Supreme Court of Louisiana, 1986)

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Bluebook (online)
480 So. 2d 813, 1985 La. App. LEXIS 10189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clement-v-scaffolding-rental-erection-services-inc-lactapp-1985.