Meche v. Arthur G. McKee & Co., Inc.

415 So. 2d 494
CourtLouisiana Court of Appeal
DecidedMay 25, 1982
Docket14841
StatusPublished
Cited by3 cases

This text of 415 So. 2d 494 (Meche v. Arthur G. McKee & Co., 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
Meche v. Arthur G. McKee & Co., Inc., 415 So. 2d 494 (La. Ct. App. 1982).

Opinion

415 So.2d 494 (1982)

Lesley MECHE
v.
ARTHUR G. McKEE & COMPANY, INC. and General Accident Fire & Life Assurance Corporation.

No. 14841.

Court of Appeal of Louisiana, First Circuit.

May 25, 1982.

*495 James W. Murray, Robert R. Rainer, Baton Rouge, for plaintiff-appellee Lesley Meche.

James E. Moore, Baton Rouge, for third party defendant-appellee Universal Corp.

John W. L. Swanner, Baton Rouge, for defendants-appellants Arthur G. McKee & Co., Inc. and General Acc. Fire & Life Assur. Corp.

Before LOTTINGER, EDWARDS and SHORTESS, JJ.

EDWARDS, Judge.

Plaintiff, Lesley Meche, is a pipefitter who injured his right wrist on December 26, 1978, while working for the defendant, Arthur G. McKee & Company, Inc. ("McKee"). Meche was injured when a pipe wrench he was using slipped, causing him to fall and land on his right wrist and hand. Plaintiff was taken to a company doctor who referred him to an orthopedist, Dr. Jackson.

Dr. Jackson first saw Meche on December 28, 1978. His original diagnosis was that plaintiff had suffered an impacted fracture of the radius. Later, Dr. Jackson discovered that plaintiff had also suffered a chip fracture of the capitate, a bone located in the wrist. Dr. Jackson's treatment of Meche's wrist included applications of casts, physical therapy, cortisone shots, sympathetic nerve blocks and surgery. On November 26, 1979, Dr. Jackson released plaintiff to return to work. At that time, plaintiff's wrist had healed but he still complained of severe pain which Dr. Jackson had been unable to alleviate.

Meche returned to work in December of 1979. He had received workmen's compensation benefits from General Accident Fire & Life Assurance Corporation ("General Accident"), McKee's workmen's compensation insurer, from the time of his injury. Those benefits were terminated December 24, 1979, when Meche returned to work.

After his return to work, Meche worked as a pipefitter for several different employers at several jobsites. These jobs were obtained through Meche's local trade union. Meche testified that he was in constant pain while working on each of these jobs. Plaintiff also testified that the severe pain in his wrist and weakness in his hand and wrist prevented him from performing many tasks and from being able to use many of the tools of his trade. At all times after his return to work, Meche wore a cloth splint, prescribed by Dr. Jackson, on his right hand.

In the summer of 1980, Meche went to work for Universal Corporation at the Exxon plant in Baton Rouge. On August 26, 1980, while working for Universal, Meche "thumped" a pipe with his right hand in order to line it up with another pipe. This action temporarily caused the pain in his hand and wrist to intensify.

After that incident, Dr. Jackson had Meche fitted with a plastic laminate brace. This brace, which relieved plaintiff's pain, completely immobilizes his right wrist, allowing movement only in his fingers. Plaintiff has been unemployed since being fitted with this new brace. His local union will not send him out on any jobs since the brace deprives him of full use of his right hand.

*496 Meche filed suit against McKee and General Accident, seeking workmen's compensation benefits for total and permanent disability. In their answer, defendants denied any liability to plaintiff for compensation benefits. Defendants also filed a third-party demand against Universal Corporation, alleging that any disability suffered by Meche was the result of the August 26, 1980, incident, which occurred while he was employed by Universal. McKee and General sought recovery from Universal for any amount which they might be held to owe plaintiff on the main demand. Trial on the main demand was severed from that of the third-party demand.

After trial on the main demand, the trial court rendered judgment in favor of Meche and against McKee and General Accident, decreeing plaintiff to be totally and permanently disabled as of December 24, 1979, and entitled to weekly compensation benefits of $141.00 per week from that date. Defendants were given a credit for all sums earned by plaintiff since that date. Defendants were further held liable for statutory penalties on all benefits due from August 28, 1980. Finally, plaintiff was awarded attorney fees in the sum of $3,500.00.

Defendants' motion for a new trial was denied. Plaintiff's motion for a partial new trial, on the issue of a credit for wages earned by Meche since December 24, 1979, was granted. After argument on the partial new trial, the trial court issued its final judgment.

The trial court's final judgment carried forth the same provisions as the earlier judgment, except that the portion giving defendants credit for all sums earned by plaintiff since December 24, 1979, was omitted. Additionally, trial on the third-party demand having been completed in the interim,[1] the court rendered judgment in favor of third-party defendant, Universal, and against third-party plaintiffs, McKee and General Accident, dismissing the third-party petition.

McKee and General Accident have suspensively appealed, making the following specifications of error:

1. The trial court erred in finding that Lesley Meche was totally and permanently disabled as a result of an injury sustained while working for McKee.
2. The trial court erred in failing to allow McKee and General Accident credit for the sums earned by Meche after December 24, 1979.
3. The trial court erred in dismissing the third party demand of McKee and General Accident against Universal Corporation.
4. The trial court erred in awarding Meche penalties and attorney's fees.

Meche has answered that appeal, seeking an increase in attorney fees for representation on appeal. Each specification of error will be treated separately.

Meche's Disability

Defendants do not contend that Meche is not totally and permanently disabled. They assert, however, that any disability suffered by Meche is not the result of the December 26, 1978, accident which occurred while Meche was working for McKee. Defendants note that Meche returned to work in December of 1979 and worked through August of 1980. They assert that any disability suffered by Meche is the result of the accident which occurred on August 26, 1980, while he was working for Universal.

The trial court made a factual finding that plaintiff was totally and permanently disabled in November of 1979, when Dr. Jackson released him to return to work. The court found that Dr. Jackson allowed Meche to return to work as a form of therapy and in order to help plaintiff financially. Such a factual finding of disability is not to be disturbed on appeal in the absence of manifest error. Cadiere v. West Gibson Products Company, Inc., 364 So.2d 998 (La.1978); Aleman v. Lionel F. Favret *497 Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

A review of the record on appeal, far from revealing any manifest error, yields the conclusion that the evidence amply supports the trial court's factual findings. In his letter to General Accident of November 26, 1979, Dr. Jackson advised that Meche was released to return to work but should expect "weakness and continued symptomatology." Dr. Jackson testified, by way of deposition, that he knew that stiffness, pain and weakness in plaintiff's wrist would prevent him from doing much pulling, twisting or lifting. Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Barton v. Wausau Ins. Co.
545 So. 2d 1248 (Louisiana Court of Appeal, 1989)
Gales v. Gold Bond Bldg. Products
493 So. 2d 611 (Supreme Court of Louisiana, 1986)
Young v. Employers Casualty Co.
486 So. 2d 194 (Louisiana Court of Appeal, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
415 So. 2d 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meche-v-arthur-g-mckee-co-inc-lactapp-1982.