Pennywell v. Crawford

262 So. 2d 830, 1972 La. App. LEXIS 5972
CourtLouisiana Court of Appeal
DecidedMay 23, 1972
DocketNo. 11857
StatusPublished
Cited by8 cases

This text of 262 So. 2d 830 (Pennywell v. Crawford) 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
Pennywell v. Crawford, 262 So. 2d 830, 1972 La. App. LEXIS 5972 (La. Ct. App. 1972).

Opinion

PRICE, Judge.

By this proceeding plaintiff, Dewey Pen-nywell, seeks to recover benefits under the Workmen’s Compensation Statute for total and permanent disability alleged to have resulted from an accidental injury suffered in the course of his employment at defendant’s sawmill. Plaintiff also claims costs of medical treatment, expenses incurred in travel to out-of-town physicians, and penalties and attorney’s fees.

Pennywell was working as a block setter on the log carriage at the Crawford & Son Tie and Lumber Company, Inc. in Winn Parish, on March 16, 1970, when a cable on the log carriage broke, causing the carriage to hurl backward into a piece of angle iron used as a carriage stop. Plaintiff struck his left elbow on the angle iron, suffering a bone fracture as a result thereof. He was given emergency treatment by Dr. B. W. Floyd in Winnfield, who referred him to an orthopedist in Alexandria, Dr. C. W. Lowrey, for further treatment. Preliminary diagnosis was a chip facture of the spur on the olecranon. Application of a posterior splint was insufficient in alleviating plaintiff’s complaints of pain in the ulnar nerve; therefore, surgery was performed on August 24, 1970, to remove the spur and relocate the ulnar nerve in plaintiff’s elbow. It was also necessary to remove a nodule that had formed in plaintiff’s hand and to cleanse the tendons of his wrist area. After a series of post operative visits and physical therapy treatments, plaintiff was discharged by Dr. Lowrey on January 4, 1971, as having reached a maximum recovery and able to return to his employment. With the exception of some seven weekly payments which were delinquent, defendant paid compensation benefits to plaintiff up until the date of December 31, 1970, at which time no further payments were tendered to plaintiff. This action was brought by plaintiff seeking primarily to be declared entitled to benefits for total and permanent disability to perform the work he was engaged in at the time of the injury, or, alternatively, for such other benefits the court might determine he was entitled to.

After a trial on the merits, the district court found plaintiff was not totally and permanently disabled and awarded him judgment for total disability for 43 weeks (the period from date of injury to January 4, 1971, the date of discharge by Dr. Low-rey), subject to a credit for 36 weeks previously paid by defendant. Plaintiff’s claim for penalties and attorney’s fees was rejected.

On this appeal plaintiff urges the trial court should have found plaintiff totally and permanently disabled to perform the work of a block setter, and, in any event, should have awarded him benefits for a partial permanent disability under the provision of LSA-R.S. 23:1221(4) (f) and (4)(*).

Further, plaintiff contends he should be awarded penalties on all amounts awarded him in this court, inclusive of medical costs paid after suit was filed, together with reasonable attorney’s fees as defendant’s failure to pay was arbitrary, capricious and without probable cause. Additionally, plaintiff urges the trial court erred in not awarding him travel expenses to and from Alexandria for medical treatment.

We find no error in the conclusion of the trial judge that the preponderance of the evidence does not support plaintiff’s claim for total and permanent disability. [833]*833Plaintiff offered the deposition of Dr. Low-rey in addition to his own testimony in seeking to prove he could no longer perform heavy manual labor or the duties of a block setter in a sawmill.

Dr. Lowrey testified in his deposition that although plaintiff suffered a 15 to 20 percent impairment of his upper extremity as a whole which was permanent, he should he able to do heavy manual labor and could return to the same type of employment. Dr. Lowrey described the basis on which he arrived at the percentage of partial disability as resulting from a slight limitation of dorsiflexion in the left wrist and some atrophy in the left arm. In his opinion, plaintiff would not experience substantial pain in performing the work of a block setter or in manual labor unless his arm was elevated to an extent not normally required in his work.

Although plaintiff testified he was unable to carry out the duties he formerly performed, he did not attempt to return to his job after being discharged by his physician. Plaintiff argues on the appeal that his witness, Dr. Lowrey, was not familiar with the duties of a “block setter” in a sawmill and had no basis on which to form an opinion as to the capability of plaintiff to continue to do this type of work. There is no evidence in the record to substantiate this argument. We do not find plaintiff’s own testimony, uncorroborated and standing alone, is sufficient to overcome the medical testimony of his treating physician, Dr. Lowrey.

However, we are of the opinion the trial judge erred in not awarding plaintiff the benefits for a partial permanent disability as provided in LSA-R.S. 23:1221(4) (f) and (4)(o), which provides as follows:

“Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
* * i{C * * *
(4) In the following cases the compensation shall be as follows: * * *
(f) For the loss of an arm, sixty-five per centum of wages during two 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. % ‡. »

The gist of Dr. Lowrey’s testimony is that plaintiff has suffered a permanent impairment of the left arm of between 15 to 20 percent and therefore plaintiff is entitled to this percentage as fixed on the schedule of benefits for the loss of an arm. Favorite v. Johns-Manville Products Corp., 73 So.2d 345 (La.App.Orl.1954); Loflin v. Erectors & Riggers, Inc., 68 So.2d 694 (La.App. 1st Cir. 1953).

There is not sufficient evidence in the record on which to make an award for travel expenses claimed by plaintiff. Although this may well be an item for which the employer is responsible in proper cases, there must be evidence of actual cost expended for this purpose by the claimant on which an award may be based. Murry v. Southern Pulpwood Insurance Co., 136 So.2d 165 (La.App. 3rd Cir. 1962). Plaintiff offered no evidence to show any specific costs incurred for this purpose.

We find plaintiff is entitled to penalties as provided by LSA-R.S. 23:1201.2 for that portion of his claim for compensation accruing and unpaid prior to January 4, 1971 (the date he was reported able to return to his employment by Dr. Lowrey). Most of this arrearage occurred during the month of November, 1970, when defendant failed to pay several consecutive weeks of compensation. No explanation [834]*834was given by defendant as to why these payments were missed, and as they were more than 60 days overdue at the time suit was filed, we conclude defendant’s failure was arbitrary and capricious, entitling plaintiff to statutory penalties on this amount.

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Cite This Page — Counsel Stack

Bluebook (online)
262 So. 2d 830, 1972 La. App. LEXIS 5972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennywell-v-crawford-lactapp-1972.