Thomas v. Elder Pallet & Lumber Sales, Inc.

493 So. 2d 1267, 1986 La. App. LEXIS 7655
CourtLouisiana Court of Appeal
DecidedSeptember 10, 1986
Docket85-973
StatusPublished
Cited by36 cases

This text of 493 So. 2d 1267 (Thomas v. Elder Pallet & Lumber Sales, 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
Thomas v. Elder Pallet & Lumber Sales, Inc., 493 So. 2d 1267, 1986 La. App. LEXIS 7655 (La. Ct. App. 1986).

Opinion

493 So.2d 1267 (1986)

James Albert THOMAS, Plaintiff-Appellee,
v.
ELDER PALLET & LUMBER SALES, INC., Defendant-Appellant.

No. 85-973.

Court of Appeal of Louisiana, Third Circuit.

September 10, 1986.
Writ Denied November 21, 1986.

*1268 David K. Balfour, Lafayette, for defendant-appellant.

Jacque B. Pucheu, Jr., Eunice, for plaintiff-appellee.

Before STOKER, KNOLL and KING, JJ.

KNOLL, Judge.

In this worker's compensation suit Elder Pallet & Lumber Sales, Inc. (hereafter Elder) appeals the judgment of the trial court awarding James Albert Thomas, temporary total disability benefits and rehabilitation expenses. The trial court found Thomas temporarily totally disabled on the basis of Thomas being an odd lot and/or working in pain.

Elder contends the trial court erred: (1) in finding Thomas temporarily totally disabled; (2) in applying the odd lot doctrine to the Louisiana Worker's Compensation Act as amended in July 1983; (3) in applying the facts and evidence to find Thomas entitled to an odd lot classification under Section 1221(1) of the 1983 Worker's Compensation Act; (4) in finding Thomas was *1269 entitled to supplemental earnings benefits under Section 1221(3) of the 1983 Worker's Compensation Act; (5) in finding that Thomas was entitled to training and rehabilitation under Section 1226 of the 1983 Worker's Compensation Act; and (6) in denying Elder reimbursement from Thomas for overpayment of worker's compensation benefits. We affirm.

FACTS

The learned trial judge handed down written reasons for judgment setting forth the facts of this case, which we incorporate herein:

"James Thomas was injured on the job and claims workmen [sic] compensation benefits of his employer, Elder Pallet and Lumber Sales, Inc. The suit is under the `new' Act. He was injured on August 9, 1983.
The medical testimony consists of one witness, Dr. Lazaro, an Orthopedist, with a specialty in hands.
The doctor says the plaintiff caught the fingers of his left hand in a sprocket.
The index finger had `abrasions and lacerations'.
The middle (long) finger had deep lacerations into the end and last joint. The doctor repaired this, but the finger was left with a 35° to 40° curl. The doctor assigns 35% permanent impairment, which cannot be helped medically.
The ring finger had deep lacerations into the last joint and end; and fracture of the last joint and last phalange. The doctor first put a pin in the joint, removed it about five or six weeks later, and then fused the distal joint. He assigned 35% to 37% disability (permanent, —with no way to improve same medically) then settled on the 37% estimate of disability of the finger.
The doctor says that with relation to the hand, the fingers are valued at the following percentages:
Thumb              50% of hand
Index finger       20% of hand
Long finger        15% of hand
Ring finger        10% of hand
Little finger       5% of hand.
Applying 35% and 37% to the long and ring fingers, the percentages above would yield less than a 15% impairment of the hand, but the doctor points out that when two fingers are involved, the basic percentage relationship to the hand is increased.
The doctor discharged plaintiff on November 15, 1983, with no restrictions as to what he could do. He said that hand was not the same as before the injury, but put no limitations on what the man could try to accomplish.
The plaintiff is a 27 year old black male; is married; and has two children, ages 4 and 5. He was a good worker. He finished 12 grades and worked as a manual laborer for the railroad and the telephone company; did a little carpentry work; and wound up as a sawyer at a sawmill, where he was hurt.
While sawing, he basically sat at a panel with 20 button[s] ... This controlled the timber being sawed, and required coordination of the fingers to keep the saw going, the timber properly placed, and all the elements of the job of sawing, working together. In addition, he did manual labor on the yard, and of course, had to maintain the machinery, and keep the machinery from jamming,—in fact, that is how he got his fingers caught in the machinery. The Court finds as facts:
1. Because of his disability to the fingers of his left hand he has lost his dexterity and his ability to handle 20 buttons with his left hand.
2. His job was not simply pushing buttons.
He stayed 7 days in the hospital and went through surgery with both the long and ring fingers, and what might be called surgery to the index finger. He underwent physical therapy until October of 1983, after starting August 22, 1983, (for the benefit of the thumb and little finger, and still claims problems with the little finger) and remains with a stiff ring finger and a curled long finger. He can do `rough' grabbing with his left *1270 hand, but cannot do `fine' grabbing or gripping.
He collected workmen's compensation from August 10, 1983 to December 27, 1983.
After discharge, he was offered his `old' job, but with reservations,—he was told he could sit on a stool, and watch the replacement sawyer operate until he could `get on his feet'."

Thomas did not accept Elder's job offer because his hand was hurting him and he had to keep his hand "cool". Since the accident occurred, two mechanics were hired to replace Thomas.

DISABILITY

The trial court found Thomas temporarily totally disabled under LSA-R.S. 23:1221(1), which provides:

"Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(1) Temporary total. For injury producing temporary total disability of an employee to engage in any self-employment or 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, or experience, sixty-six and two-thirds percent of wages during the period of such disability."

The issue of disability is to be determined by the totality of the evidence, including both lay and medical testimony. Augustine v. Courtney Const. Co., Etc., 405 So.2d 579 (La.App.3rd Cir.1981), writ denied, 407 So.2d 735 (La.1981). On appellate review, the trial court's findings of work-connected disability are entitled to great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter's reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's findings, unless clearly wrong. The reviewing court should not disturb reasonable inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are as reasonable. Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979).

In the present case, Thomas was employed as a sawman. His duties entailed: operating a panel of 20 buttons which controlled a large power saw that cut timber; maintaining the machinery, which included changing the saw blades and oiling the saw; repairing the machine; and operating a forklift.

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493 So. 2d 1267, 1986 La. App. LEXIS 7655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-elder-pallet-lumber-sales-inc-lactapp-1986.