Layssard v. Procter & Gamble Manufacturing Co.

490 So. 2d 1172, 1986 La. App. LEXIS 7290
CourtLouisiana Court of Appeal
DecidedJune 25, 1986
DocketNo. 85-724
StatusPublished
Cited by3 cases

This text of 490 So. 2d 1172 (Layssard v. Procter & Gamble Manufacturing 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
Layssard v. Procter & Gamble Manufacturing Co., 490 So. 2d 1172, 1986 La. App. LEXIS 7290 (La. Ct. App. 1986).

Opinion

YELVERTON, Judge.

Charles Layssard sued his employer, Procter and Gamble Manufacturing Company, under the Workmen’s Compensation Act seeking benefits for total and permanent disability, together with statutory penalties and attorney’s fees. From a judgment finding plaintiff presently working in substantial pain and partially disabled, both the defendant and the plaintiff have appealed. We affirm.

The only issue raised by defendant on appeal is whether the trial court erred in finding the plaintiff suffered from substantial pain as a result of the injury. The only issue raised by plaintiff’s brief is the finding of partial disability. The plaintiff argues that he is totally and permanently disabled. We will address these two issues.

The suit arose when plaintiff, a maintenance technician, sustained a twisting injury to his left knee as a result of an accident on May 31, 1983. He was on a ladder changing a piece of machinery when his body twisted resulting in an injury to his left knee. Plaintiff reported the accident to his employer. On the next day plaintiff saw Dr. Brown, the company physician. Dr. Brown referred him to Dr. Douglas Gamburg, an orthopedic surgeon. Dr. Gamburg’s initial diagnosis was- a tear of the medial meniscus, with some slight degenerative changes. On June 16, 1983, plaintiff underwent an orthoscopic examination. The examination revealed a longitudinal tear of the medial meniscus. Dr. Gamburg then performed a partial menis-cectomy. The hospital orthoscopic examination records revealed the plaintiff had chondromalacia, a degenerative change in the medial femoral condyle. Plaintiff was hospitalized for four days.

Dr. Gamburg saw plaintiff several times on a follow-up basis after plaintiff left the hospital, noting that plaintiff complained of pain in his left knee during these visits. The doctor stated that plaintiff had arthritis in his left knee probably due to a combination of his age and the accident. Dr. Gamburg opined that plaintiff suffered a five to ten percent impairment of his leg as a result of the accident.

[1174]*1174Plaintiff was later referred to Dr. John Weiss. His opinion was a 10 to 15 percent impairment to the physical function of his left knee.

Plaintiff was paid workmen’s compensation for 12 weeks commencing June 18, 1983. Disability benefits were terminated on September 17, 1983. On September 26, 1983, plaintiff resumed working full-time for his employer performing the same duties. Plaintiff worked steadily at Procter and Gamble as a maintenance technician through the time of trial.

Because plaintiffs accident occurred on May 31, 1983, the question of his entitlement to compensation benefits arises under former La.R.S. 23:1221.

The trial court held that although plaintiff proved he worked in substantial pain after the accident, he failed to prove that he was totally disabled. Accordingly, the trial court found plaintiff partially disabled under former La.R.S. 23:1221(3) and awarded partial disability benefits for a total of 425 weeks. (We note here that the statute provides benefits for a period of 450 weeks under former La.R.S. 23:1221, and we will hereinafter amend the judgment accordingly.) The trial court also denied plaintiffs claim for statutory penalties and attorney’s fees. The plaintiff has not appealed this part of the judgment.

The employer argues that the trial court erred in finding that the plaintiff works in substantial pain. We find no error in this determination.

As this court stated in Knight v. Cotton Bros. Baking Co., Inc., 473 So.2d 105 (La.App. 3rd Cir.1985):

Whether a claimant’s pain is substantial enough to be disabling is a question of fact that must be determined according to the circumstances of each individual case. Furthermore, this factual conclusion regarding a claimant’s degree of pain is a factual one entitled to great weight and will not be disturbed on appeal unless it is clearly wrong. Newell v. U.S. Fidelity and Guaranty Co., 368 So.2d 1158 (La.App. 3rd Cir.1979); McBroom v. Argonaut Insurance Co., 370 So.2d 212 (La.App. 3rd Cir.1979); Augustine v. Courtney Const. Co., Etc. [405 So.2d 579], supra.

In the present case the plaintiff testified that he was a maintenance technician, or high speed machine adjuster, for Procter and Gamble for the previous 16 years. Plaintiff was 50 years old. His job required stooping, bending, climbing, a lot of walking, and welding. Before his accident he was able to perform his duties without substantial pain to his left knee. Since the accident his duties involving stooping, climbing and bending caused pain to his knee. His duties remained the same after the accident. He stated that he had pain every day but excessive activities, such as stooping, crawling, lifting weight and standing, caused “real severe horrible pain.” He had problems sleeping at night due to cramping. He could no longer do the same duties at work without experiencing pain. In the latter part of 1984 he had to turn down overtime work for that reason.

His wife, Maidie Layssard, testified corroborating his testimony that he has been in pain since the accident and had had problems sleeping. She also stated that before the accident he had no complaints of pain.

Lewis Slider, an automotive mechanic, testified that he served in the National Guard with the plaintiff in the summer of 1983, and that the plaintiff complained of pain in his knee and of not being able to bend. He once saw the plaintiff grab his knee in pain.

James Carter, a friend of the plaintiff, stated that plaintiff had a limp after the accident and that his knee bothered him when he went up steps.

Walter Thompson, an employee of Procter and Gamble, testified that plaintiff’s duties require him to climb, stoop and squat. After the injury he observed plaintiff having difficulty with his duties. He saw plaintiff limping on occasions and plaintiff complained of pain. The last time [1175]*1175plaintiff complained of pain was within three months of trial.

Sandra Setliff, plaintiffs stepdaughter, observed plaintiff in pain and having problems bending his knee. Plaintiff had difficulty with his knee ever since the accident.

William Nugent and Robert Rachal also testified that plaintiff complained of pain in his knee on several occasions.

Gerald Lemoince, plaintiff’s supervisor at work, testified that plaintiff’s knee gave out on him three times on his first day back to work following surgery. However, after plaintiff returned to full duty he did not complain of pain or an inability to do certain jobs.

Dr. William Brown, a specialist in family practice and the company physician for Procter and Gamble, made arrangements for plaintiff to see Dr. John Weiss after he was discharged by Dr. Gamburg. On October 19, 1983, Dr. Brown re-examined plaintiff’s left knee. There was no swelling. There was tenderness medially at the knee joint and slight laxity medially. Dr. Brown did not feel his findings fit the symptoms of pain complained of by plaintiff. However, he did state that if plaintiff suffered from chondromalacia this could account for his continued complaints of pain. He stated that a person with chondromalacia would suffer pain after an eight hour work day consisting of climbing, bending, walking and squatting.

Dr.

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Related

Long v. Manville Forest Products Corp.
554 So. 2d 181 (Louisiana Court of Appeal, 1989)
Layssard v. Proctor & Gamble Mfg. Co.
532 So. 2d 337 (Louisiana Court of Appeal, 1988)
Layssard v. Proctor & Gamble Manufacturing Co.
494 So. 2d 1179 (Supreme Court of Louisiana, 1986)

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Bluebook (online)
490 So. 2d 1172, 1986 La. App. LEXIS 7290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/layssard-v-procter-gamble-manufacturing-co-lactapp-1986.