Landry v. Liberty Mutual Insurance

236 So. 2d 235, 1970 La. App. LEXIS 5321
CourtLouisiana Court of Appeal
DecidedMay 14, 1970
DocketNo. 3061
StatusPublished
Cited by6 cases

This text of 236 So. 2d 235 (Landry v. Liberty Mutual Insurance) 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
Landry v. Liberty Mutual Insurance, 236 So. 2d 235, 1970 La. App. LEXIS 5321 (La. Ct. App. 1970).

Opinions

CULPEPPER, Judge.

This is a workmen’s compensation case. Plaintiff contends he sustained an accidental injury which required removal of his left eye. The eye was already sightless. He seeks compensation under the schedule of payments for loss of an eye, LSA-R.S. 23:1221, (4), (i), or, in the alternative, for disfigurement about the face or head, LSA-R.S. 23:1221 (4), (p). From an adverse judgment, plaintiff appealed.

The issues are: (1) Did plaintiff sustain a compensable accident? (2) If so, is the accident causally related to the loss of the eye ? (3) Is plaintiff entitled to compensation for loss of an eye or, alternatively, for disfigurement?

The general facts show that on October 10, 1968, plaintiff was operating a bulldozer near Krotz Springs, Louisiana, for the defendant, employer, St. Martin Construction Company, Inc. He testified sand fell in his eye. His nephew, McLane Francis, who was acting as swamper, went to the truck and brought back a glass of water with which plaintiff rinsed the eye. The nephew corroborated these facts.

Plaintiff says he kept on working Thursday, Friday and Saturday, but the eye continued to get worse. This is substantiated by plaintiff’s wife who testified that when he returned home at night the eye was red and inflamed. On Monday, October 14, 1968, plaintiff went to Dr. Leon Slipakoff, an eye specialist in New Iberia. This physician said something had apparently fallen into the eye. It was inflamed and looked terrible. He started treatment with antibiotics but said the prognosis was poor. Finally, on October 25, 1968, the eye ruptured, requiring surgical removal.

We think the testimony of the plaintiff, as corroborated by his nephew, his wife and Dr. Slipakoff, is sufficient to prove that while he was operating the bulldozer he got something in his eye and this caused the injury complained of. We conclude that a work-connected accident is proved.

The next issue is whether there is a causal relationship between the accident and the loss of the eye. Plaintiff testified the eye was first injured in about 1948 by caustic soda. The evidence is vague as to this first injury, but when Dr. Slipakoff first saw plaintiff on September 3, 1957, for complaints of pain and redness of the eye, the cornea was already badly scarred. The eye was white and plaintiff had no vision except that he could see the motion of a hand within about 12 inches of the face. [237]*237The doctor treated the inflammation and it apparently subsided.

Dr. Slipakoff next saw plaintiff on April 6, 1966, after something had again fallen into the eye. The doctor says that by this time the cornea was becoming very thin and was beginning to bulge. Plaintiff still had only “hand motion vision.” Since the condition was irreversible, and the eye was likely to rupture at any time. Dr. Slip-akoff advised plaintiff in 1966 to have the eye removed and replaced with a prosthesis. Plaintiff refused.

The next time Dr. Slipakoff saw plaintiff was October 14, 1968, the occasion mentioned above. The eye was badly inflamed, did not respond to treatment and finally ruptured on October 25, 1968. This physician said the cause of the rupture was probably that something had gotten into the eye, it became inflamed and plaintiff rubbed it, causing the cornea to finally burst and the eye to collapse.

On referral by Dr. Slipakoff, plaintiff was seen on October 25, 1968 by Dr. R. S. St. Dizier, an eye surgeon. This physician testified plaintiff gave a history of rubbing the eye and causing it to burst. The fluid in the eye gushed out and the eye collapsed. It was subsequently removed and a prosthesis substituted.

Under the evidence outlined above, we conclude there was a causal connection between the accident and the loss of the eye. It is true the eye was already sightless and the cornea was becoming progressively thinner. But, the immediate cause, according to the testimony of the plaintiff and the physicians, was that after plaintiff got something in his eye while operating the dozer, the eye became inflamed, plaintiff rubbed it and finally it ruptured.

This case falls within the established jurisprudence that an employer accepts in employee as he finds him and compensation must be paid where a work-connected accident aggravates or accelerates a pre-existing condition, Deville v. Travelers Insurance Company, La.App., 176 So.2d 824; Allen v. Insurance Company of North America, La.App., 216 So.2d 400.

The next issue is whether, as a matter of law, plaintiff is entitled to compensation under LSA-R.S. 23:1221, (4), (i) for the loss of an eye which was already sightless. This issue has been considered in only one case from the appellate courts of Louisiana, Haas v. Globe Indemnity Company, 16 La.App. 180, 132 So. 246 (1st Cir. 1931), in which there was no application to our Supreme Court for writs. The claimant in Haas had a little more vision than the present plaintiff. The decision says Haas could “discern objects and could also count the fingers of the hand and read bold type and headlines in the newspapers at a distance of eight inches or a foot.” However, he had no “industrial use” of the eye and it did not contribute to his earning ability. The court discussed cases from other jurisdictions, pro and con, and concluded as follows:

“The defense of comparative vision or the prior loss of the industrial use of the eye seems to be presented here for the first time in our jurisprudence; but if we are to give consideration to the adjudications of appellate courts in other jurisdictions where, in workmen’s compensation statutes, like in ours, compensation is allowed ‘for the loss of an eye,’ we are bound to hold, under the weight of authority, that the doctrine does not apply here.
“Most of the decisions, as we view them, are grounded on the clear provisions of the statute which, awards compensation ‘for the loss of an eye’ and makes no reference whatever to any impairment of the sight or the loss of any degree of vision therein.”

From our research, we cannot say the majority rule supports plaintiff’s position. There are many cases on each side. Some cases from other jurisdictions supporting the claimant are General Motors Corpora[238]*238tion v. Vaccarini, 8 Terry 499, 93 A.2d 739 (Del.1952), recovery allowed for both loss of sight and disfigurement resulting from the same accident; Hobertis v. Columbia Shirt Company, 186 App.Div. 397, 173 N.Y.S. 606, where plaintiff had 50% vision before loss of eye; Liimatta v. Calumet & Hecla Mining Co., 229 Mich. 41, 201 N.W. 204; Mosgaard v. Minneapolis St. Railway Company, 161 Minn. 318, 201 N.W. 545; Chicago Bridge & Iron Company v. Industrial Commission, 316 Ill. 622, 147 N.E. 375. Among cases supporting defendant are Rye v. Chevrolet Motor Company, 229 Mich. 39, 201 N.W. 226; Leed v. State Workmen’s Insurance Fund, 128 Pa.Super. 572, 194 A. 689 (Penn.1937); Brown v. State Workmen’s Insurance Fund, 131 Pa.Super. 226, 200 A. 174 (Penn.1938); London Guarantee & Accident Company v. Industrial Commission, 76 Colo. 155, 230 P. 598; Ladd v. Foster Bros. Mfg. Co., 205 App.Div. 794, 200 N.Y.S. 258; Dyer v. Abrasive Dressing & Tool Company, 315 Mich. 215, 23 N.W.2d 640; Iacone v. Cardillo, D.C., 104 F.Supp. 675, affirmed, 208 F.2d 696

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Bluebook (online)
236 So. 2d 235, 1970 La. App. LEXIS 5321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landry-v-liberty-mutual-insurance-lactapp-1970.