Loflin v. Erectors & Riggers, Inc.

68 So. 2d 694, 1953 La. App. LEXIS 869
CourtLouisiana Court of Appeal
DecidedNovember 13, 1953
DocketNo. 3750
StatusPublished
Cited by9 cases

This text of 68 So. 2d 694 (Loflin v. Erectors & Riggers, 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
Loflin v. Erectors & Riggers, Inc., 68 So. 2d 694, 1953 La. App. LEXIS 869 (La. Ct. App. 1953).

Opinion

CAVANAUGH, Judge.

This suit is by the plaintiff for the maximum amount of $30 per week compensation, for permanent total disability under LSA-R.S. 23:1221, subparagraph 2, for a period-' not exceeding 400 weeks during the period, of his disability, when he suffered a dislo--[695]*695■cation of the ulna at the wrist joint while in the employ o'f defendant. The only disputed issue in this case is whether the plaintiff ■suffers total disability to do work of a reasonable character.

We find the facts to be. substantially as follows, as reflected by the record:

On April 21, 1952, plaintiff was employed as an iron worker by defendant at an average weekly wage of approximately $100 per week, and while performing services arising out of, incidental to and during the course of the business and trade of defendant, which he alleges is a hazardous business, under the Workmen’s Compensation Law of Louisiana, and while engaged in welding some large metal plates during the course of his employment, one of the plates fell on his left forearm causing a dislocation of the ulna at the wrist joint. The plaintiff was taken to a hospital in the City ■of Baton Rouge where, under a. general anesthesia, the dislocation was reduced by Dr. Moss Bannerman and a long-arm cast applied. The plaintiff remained in the hospital only a few hours, leaving the hospital on the same day the accident happened, and returned to work within 48 hours in the ■same crew, but, on account of the injury, he was assigned to light work called “flagging” or “swamping”. We understand that flagging or swamping is one of the light duties of an iron worker.

He pursued this light work for the defendant until May 14, 1952, at his same daily wage and left its employment of his own accord. He worked for other construction companies doing light work of a similar character until some time during the month of August or the first of September, when he left Baton Rouge to go to Charleston, West Virginia, to take a job in what he calls a “raising gang”. We understand from the evidence that an iron worker’s duties are to construct and put together steel going into the framework of buildings, structures and bridges. The duties performed by a worker in the raising gang consist of raising and putting together with bolts the sheets of iron, and that work is followed by the riveting crew that removes the bolts and rivets the pieces of iron together. This crew consists of four men, one of whom uses a riveting gun. Another one of the crew bucks the rivet and sets a bumper jack against it, while the hammer is being applied. Another one of the crew operates the heater where the rivets are heated, and his duties also require him to throw these hot rivets to another employee who catches them in a cone-shaped tin receptacle where they are placed by him in a hole for the driver to commence his work. Other workers in a construction crew remain on the ground and fasten hooks and cables to sheets of steel or other material which is lifted by means of a derrick or crane. The workers who go above the ground, whether they be in the raising gang or in the riveting gang all have to climb ladders or. columns or hang on the iron where they work or on platforms constructed so they can use the tools of their trade.

During the entire period from the time plaintiff was injured until the trial of this case, he had lost no appreciable time from work and had earned the same wages he was earning or more than at the time of the accident.

Plaintiff was attended by Dr. Bannerman from the date of the accident until he was discharged on or about .May 29, 1952, at which time Dr. Bannerman says he was able to resume his work. At that time the doctor found that he had a slight impairment of function of his left forearm due to the injuries, but he stated that the claimant had excellent strength and suffered only about twenty degrees of restricted motion in each direction and that it was his opinion that he was ready to return to his regular employment without disability at that time.

On July 29, 1952, he was examined by Dr. J. Willard Dowell at the request of his attorney, and he found that the plaintiff suffered a slight limitation of rotation in the left forearm. He determined that this was a ten degree limitation of supination. No other disabling condition was found, and it was this physician’s opinion at that time that the only possible permanent disability [696]*696the employee would have would he a slight limitation of rotation in the forearm, and he suggested deferring final evaluation for a period of three months.

Defendant took plaintiff’s evidence pursuant to an agreement with plaintiff’s counsel on December 23, 1952, which was within one week after plaintiff returned from West Virginia.

Dr. Bannerman last saw the plaintiff on July 11, 1952, and did not see or examine him again until March 23, 1953, which was the day before the trial. Dr. Dowell examined the plaintiff during the month of July, 1952 and examined him the last time during the latter part of December or the 'first of January, 1953. Dr. Dowell’s testimony is that the plaintiff has a 10% impairment in the function or use of the arm, whereas Dr. Bannerman estimated the disability at 5%. Both of these physicians testify that the plaintiff has a 20%. limitation of supination of the forearm.

The District Court, after hearing the evidence in the case, filed written reasons for its judgment in which he 'fully covers the facts in the case, reviewing plaintiff’s activity from the time of the accident, the nature and character of the work he performed, and makes this statement in his opinion which appears to us to be inconsistent with his reasons for judgment:

“Upon hearing and later reading plaintiff’s own testimony, I am left with the strong suspicion that there is very little if anything wrong with him.”

The Court based its award in favor of the plaintiff for total disability on the medical evidence of the two doctors who said plaintiff suffered a limitation in supination and pronation causing permanent disability of the forearm of between 5% and 10%r-^ Dr. Dowell fixing the disability at between 5%. and 10% and Dr. Bannerman at 5%. The Court stated that on account of the duties of an iron worker in the construction trade, it would be dangerous to himself and others should the worker undertake all the hazards of such work, while suffering a minor physical disability, and that in appraising all of the testimony and persuaded by oúr decision in the case of Newsom v. Caldwell & McCann, 51 So.2d 393, he concluded that the plaintiff was entitled to judgment for permanent and total disability. If our ruling in the Newsom case was correct and the plaintiff was disabled to do work of a reasonable character under the facts in that case and the evidence adduced on the trial thereof, and the facts and the evidence in this case are substantially the same, it would warrant a similar ruling.

The defendant has brought to our attention in this case a factual situation which it claims we did not have in the Newsom case. In the Newsom case, the plaintiff had suffered a crushing injury to his knee, was hospitalized for ten days and was confined to his b'ed at home for five weeks. He worked for another employer about eight months as a swamper or operator of a winch, which, according to the evidence in this case and in our opinion in the Newsom case, was light, work. Newsom, after this eight months of light work, never resumed work and was unemployed at the time of that trial.

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Bluebook (online)
68 So. 2d 694, 1953 La. App. LEXIS 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loflin-v-erectors-riggers-inc-lactapp-1953.