Lee v. Gaffney Const. Co.

474 So. 2d 994, 1985 La. App. LEXIS 9532
CourtLouisiana Court of Appeal
DecidedJuly 29, 1985
Docket85-CA-170
StatusPublished
Cited by5 cases

This text of 474 So. 2d 994 (Lee v. Gaffney Const. 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
Lee v. Gaffney Const. Co., 474 So. 2d 994, 1985 La. App. LEXIS 9532 (La. Ct. App. 1985).

Opinion

474 So.2d 994 (1985)

Leo LEE
v.
GAFFNEY CONSTRUCTION COMPANY, et al.

No. 85-CA-170.

Court of Appeal of Louisiana, Fifth Circuit.

July 29, 1985.
Rehearing Denied September 17, 1985.
Writ Denied November 1, 1985.

*995 Norman Mopsik, New Orleans, for plaintiff-appellee.

Charles R. Capdeville, Metairie, for defendants-appellants.

Before CHEHARDY, CURRAULT and DUFRESNE, JJ.

CHEHARDY, Judge.

Gaffney Construction Company and its worker's compensation insurer, Fidelity and Casualty Company of New York, appeal a judgment finding plaintiff, Leo Lee, totally and permanently disabled by an eye injury he incurred in a scuffle with a fellow employee.

On appeal defendants assert that Lee is ineligible for worker's compensation benefits because his injury is the result of willful misconduct and the intention to injure another; alternatively, that he is not permanently and totally disabled, or even partially disabled, because he has continued to earn a substantial income in his former occupation as a pipefitter-welder.

On June 3, 1980 Leo Lee was a 46-year-old pipefitter-welder working on a job for Gaffney Construction Company at the Shell Oil Refinery in Norco, Louisiana. He and a co-worker, Chester Dykes, began trading insults and shadow-boxing over a pipe they were fitting. Another co-worker, E.J. Weaver, intervened by grabbing Lee, whereupon Lee stumbled and fell, receiving a cut in the eye area. His injury ultimately was diagnosed as a blowout fracture of the *996 bone around the eye socket. The fracture was surgically repaired and healed well; Lee's only residual disability is diplopia (double vision) in the extreme downgaze to the left.

Lee received temporary total disability compensation benefits while he was recuperating from surgery for two months following the accident. The compensation insurer refused to pay further benefits because Lee returned to work and actually has earned more since his accident than before. Lee filed this suit, seeking benefits for permanent total disability.

As written at the time of the accident, LSA-R.S. 23:1081 provided, in pertinent part:

"No compensation shall be allowed for an injury caused (1) by the injured employee's wilful intention to injure himself or to injure another * * *.
"In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be upon the employer."

Defendants contend the scuffle that resulted in plaintiff's injury was a fight, thus was exempted from coverage by the statute. Plaintiff contends, and the trial judge found, the scuffle was simply horseplay. The judge concluded the testimony of plaintiff and two of his former co-workers, Dykes and Nettles, established that Lee and Dykes were engaged in horseplay prior to the accident. Alvin Alonzo, a third co-worker, testified to the contrary, asserting the incident did not look like horseplay but like a fight. The judge concluded,

"However, I must resolve the statements and testimony and find that the incident evidently happened so fast that it would not be fair to characterize the episode as one of a fight. All of the testimony leans toward the `horseplay' argument.
"The testimony of Alonzo, while believable, has certain difficulties. First, the fact that he was in a supervisory role speaks for itself. Also, I am not too sure of what he saw and when he saw it. I think he is definite about the fight, but this fight occurred after the injury. Again, I find the sequence of events transpired as follows:
"Work, horseplay, injury, fight.
* * * * * *
"It ought to be noted that throughout all of the witnesses' testimony, any alleged hostility was after the injury. Before the injury, there was horseplay. Once the injury occurred, the hostility perhaps ensued, but at the point the injury occurred, the claim for workmen's compensation attached."

We find no manifest error in this factual finding. The statute makes clear that it is the employer's burden to prove the employee had a willful intention to injure himself or another. Lee, Dykes and Nettles all testified that Lee and Dykes were just kidding around prior to the injury. Alonzo testified it did not look like horseplay to him; his testimony also differed in some factual particulars. However, the conflicting accounts called for a credibility determination by the trier of fact, which he resolved in favor of plaintiff's version of events. The judge's conclusion was reasonable and supported by the evidence; there is nothing in the record that shows him to be clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Accordingly, we affirm his finding that plaintiff is eligible for worker's compensation benefits.

The trial judge was clearly wrong, however, in finding the plaintiff to be permanently totally disabled. At the time of the accident, LSA-R.S. 23:1221 provided, in pertinent part:

"Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
* * * * * *
"(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar *997 occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of the injury, was particularly fitted by reason of education, training and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
"(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, or experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training and experience, during the period of disability, but * * * not beyond a maximum of four hundred fifty weeks for such partial disability resulting from injury occurring on and after September 1, 1977; * * *.
"(4) In the following cases, the compensation shall be as follows:
* * * * * *
"(i) For the loss of an eye, sixty-six and two-thirds per centum of wages during one hundred weeks.
* * * * * *
"(o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

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Bluebook (online)
474 So. 2d 994, 1985 La. App. LEXIS 9532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-gaffney-const-co-lactapp-1985.