Thompkins v. Sewell Plastics, Inc.

487 So. 2d 665, 1986 La. App. LEXIS 6669
CourtLouisiana Court of Appeal
DecidedApril 14, 1986
DocketNo. 85-CA-740
StatusPublished

This text of 487 So. 2d 665 (Thompkins v. Sewell Plastics, 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
Thompkins v. Sewell Plastics, Inc., 487 So. 2d 665, 1986 La. App. LEXIS 6669 (La. Ct. App. 1986).

Opinion

CHEHARDY, Judge.

Plaintiff, Tyronne Thompkins, instituted this suit for total and permanent disability benefits, and penalties and attorney’s fees under the Louisiana Worker’s Compensation statutes. Named defendants were his employer, Sewell Plastics, Inc., and its compensation insurer, National Union Fire Insurance Company of Pittsburg, Pennsylvania. Following trial on the merits judgment was rendered in favor of plaintiff for total and permanent benefits in the sum of $140 per week beginning August 28, 1979, and provable medical expenses since institution of this lawsuit (August 15, 1985). Plaintiff’s prayer for attorney’s fees and interest for arbitrary and capricious denial of his claim was denied.

Defendants have appealed from the judgment.

Plaintiff was employed as a utility worker by Sewell Plastics, Inc. It is undisputed that he was injured in the course and scope of his employment on October 12, 1980, when he fell from the ceiling, a distance of about 25 feet, to the concrete floor while cleaning pipes in the ceiling area. He sustained a fracture of the right distal radius and ulna (wrist), fracture of the right pubic ramus (pelvis) and a torn medial meniscus of the right knee.

Plaintiff was taken to East Jefferson Hospital where he was seen by Dr. Joseph Rauchwerk, an orthopedic surgeon, and hospitalized from October 12 to November 23, 1980. He was readmitted to the hospital on January 11, 1981 until January 19, 1981 for a right knee arthroscopy and a lateral meniscectomy. He was followed as an outpatient thereafter by Dr. Rauchwerk until August 25, 1981, when he was discharged to return to work without limitation of any sort. Weekly compensation benefits at the rate of $110.67 per week were paid through August 25, 1981. The doctor discharged plaintiff at that time with a 7% disability of the right knee injury and 5% disability for the rest of his injuries. The wrist and hip injury had cleared and plaintiff’s only remaining complaint concerned his knee.

Plaintiff returned to Sewell but was not rehired at that time because the doctor’s discharge slip had mistakenly indicated plaintiff had a 70% disability of the right knee and the lady in the employment office was concerned he could not do the work with such a high rate of disability. It was later established that this was an error of the doctor’s staff, but plaintiff never returned to Work at Sewell, expecting that there was no need to do so because he claims to have been told that they would call him.

On April 20, 1982, plaintiff returned to Dr. Rauchwerk complaining of pain in the [667]*667right knee. Plaintiff was again discharged to return to his usual gainful employment with no restrictions. Because of continued complaints a second arthroscopy examination was recommended on March 3, 1983.

Plaintiff was examined on December 28, 1982 by Dr. V.J. Zeringue, who concluded plaintiff had an 11% disability of the right knee, a 7% disability of the hip and a 5% disability of the leg, for a total disability of 23% to the lower right extremity, translated to a 10% disability of the whole man. It is noted that this is merely a functional disability in accordance with technical tables promulgated by the AMA and has no actual bearing on plaintiffs capacity to work on a regular basis.

Plaintiff was 20 years old at the time of the accident. He had quit school in the eleventh grade and taken a job at Avondale Shipyard where he worked briefly as a laborer. He then worked as a laborer at a grain elevator before taking a job with Sewell Plastics in August 1980. His duties as a utility man principally involved keeping the machine operators supplied with plastic material to make the base cups for two litre coke bottles, plastic milk jugs and Clorox bottles. Plaintiff would like to get a job with a local ambulance company and has taken a CPR course, but claims he is unable to do the work.

Plaintiffs work history is one of laboring jobs that he has worked at for only a few months both before and after the accident. He worked at River Parish Maintenance for three months as a security guard, at a vacuum service for “several days” and at A-3M for two and a half months.

Plaintiffs current complaints are that he cannot bend the right knee fully, that it aches and gives him a lot of pain about twice a week. He worked as a guard at a parking lot after the doctor said he could return to work, but claims his knee hurt. He also stated he cannot lie on his right side because he can feel the bones sticking out on his right hip.

Plaintiff claims he cannot walk for a long period of time and is unable to do any climbing; this interferes with his ability to get a job. He claims to have Charley horses in his leg but has never told the doctor about them, and now claims his hip is bothering him constantly.

Plaintiff admitted all of his medical bills had been paid to the date of trial and that he had received compensation for three or four weeks after he was discharged from the hospital after his last arthroscopy in April 1983. He also admitted the doctor had prescribed therapy and exercise to build up his leg, but he did not do the exercise because he did not think it helped.

Plaintiffs wife, friends and neighbors testified relative to plaintiffs difficulties with his knee and his complaints.

The trial court in reasons for judgment stated that plaintiff had massive injuries as a result of his accident, that he was handicapped by an apparent lack of ambition, that he finished the eleventh grade with no technical training, and that he had no previous long-term employment. The court found the odd-lot doctrine applicable in the instant case and concluded a combination of the injuries resulted in total permanent disability inasmuch as plaintiff is not suited to any type of common labor because of his knee injury and the restrictions plaintiff has imposed on himself.

The judge leaned heavily on the fact that Sewell Plastics refused to re-employ plaintiff and on the medical testimony of Dr. Zeringue, who concluded plaintiff had a 23% disability of the lower right extremity. The court stated that plaintiff had apparently convinced Dr. Zeringue that on days of light duty he is in substantial pain and that this evidence is sufficient to support the judgment.

The court further stated if plaintiff had merely sustained soft tissue injuries and given the same complaints four years later, he would be less inclined to believe him; however, in view of his three serious injuries and his previous injury-free work history, the trial court found no reason to disbelieve plaintiff on this occasion.

Appellant contends the trial court erred in (1) awarding benefits beyond those al[668]*668ready paid and, alternatively, (2) utilizing the wrong date of the accident; (3) using the wrong weekly compensation rate; (4) awarding any benefits beyond those already paid; and (5) failing to recognize amounts already paid as weekly benefits and medical expenses.

They also contend the court erred in placing any reliance on the testimony of Susan Smith (who testified as an expert occupational therapist and vocation evaluator); allowing any witness to testify that plaintiff was at a disadvantage in competing in the labor market; and contending the district judge erred in relying on evidence that he had excluded at the time of trial.

Relative to appellant’s first contention, the applicable statute concerning total and permanent disability in effect at the time of the accident [LSA-R.S.

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Bluebook (online)
487 So. 2d 665, 1986 La. App. LEXIS 6669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompkins-v-sewell-plastics-inc-lactapp-1986.