Thymes v. Ampco Plastics

303 So. 2d 594, 1974 La. App. LEXIS 3519
CourtLouisiana Court of Appeal
DecidedNovember 7, 1974
DocketNo. 6409
StatusPublished
Cited by3 cases

This text of 303 So. 2d 594 (Thymes v. Ampco Plastics) 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
Thymes v. Ampco Plastics, 303 So. 2d 594, 1974 La. App. LEXIS 3519 (La. Ct. App. 1974).

Opinion

SAMUEL, Judge.

This is a suit for total and permanent disability benefits and penalties and attorney fees under the Louisiana Workmen’s Compensation Act. Named defendants in her petition are plaintiff’s employer, Amp-co Plastics, and its insurer, “The ABC Insurance Co.”. Plaintiff alleges she was injured in an accident which occurred on February IS, 1973 in the course and scope of her employment for Ampco, a manufacturer of bathroom fixtures, cabinet doors, etc.

Plaintiff’s position, known as a filer and cleaner, required her to file smooth the edges of the doors and clean them with solvent. She allegedly sustained an injury to her left wrist when a sharp edge of one of the doors cut across her arm causing a severe twist of the left wrist and thq. base of the left hand. She did not report the accident to the company at that time. The following day she was discharged because, according to the employer, she was unable to meet her work quota. It was plaintiff’s opinion, however, that she was discharged because of union activities.

Four days after the accident plaintiff called her employer to discuss the reason for her dismissal. At that time she reported the accident and asked to be sent to the company doctor. Being of the opinion the accident had happened after plaintiff’s dismissal, the employer suggested she see her own physician.

[596]*596On February 21, 1973 Dr. Alvin E. Johnson examined plaintiff. She told the doctor the injury had been sustained on the job. She complained of pain in the left wrist and hand. Examination revealed a reddish-purple transverse scar with crust adherent, beginning at the middle of the left forearm, extending almost horizontally, medially across the medial aspect of the forearm, and an extremely tender nodular subcutaneous swelling in the radial artery of the left wrist, three to four millimeters in diameter. Analgesic tablets and a series of diathermy treatments were prescribed. Plaintiff was again seen on February 28, 1973 complaining of pain in the left wrist and all five fingers. The nodule of the wrist was still present but less swollen. At the time of trial on October 9, 1973 the nodule was still present and extremely tender.

Dr. Johnson was of the opinion the injury was compatable with the accident because the symptoms appeared within 72 hours after the injury and had not been present prior to the accident. His first impression was that the nodule mass represented a neuroma, a fibroma, or a ganglion of the wrist. However, on subsequent examination he was of the opinion this was incorrect, and he suggested a relatively minor operation to arrive at a proper diagnosis of the consistency of the nodule. He was of the further opinion that plaintiff was unable to perform the work she had been doing prior to the accident. Dr. Johnson was the only medical expert to testify.

Following trial on the merits judgment was rendered in favor of plaintiff and against Ampco and Liberty Mutual Insurance Company in the sum of $46.80 weekly beginning February 15, 1973, not to exceed 500 weeks, and expert fees of $100 for Dr. Johnson and $50 for Delvin Engeron (a business representative of a mill-mens union, who testified as an expert mill man) to be taxed as costs. Ampco has appealed.

In this court appellant contends the trial court erred: (1) in refusing to grant a continuance; (2) in refusing to stay the proceedings until plaintiff could be examined by a physician of defendant’s choice; (3) in refusing to order the Louisiana Department of Employment Security to make available plaintiff’s claim and file for unemployment compensation; (4) in setting expert’s fees in a rule to tax costs subsequent to judgment; and (5) in erroneously casting Liberty Mutual in judgment.

Appellant’s first contention is based upon the fact that on September 17, 1973, 10 days after service of suit, it filed a motion for an extension of 30 days in which to file responsive pleadings and a minimum delay of 45 days in the trial of the matter. The trial court granted an extension until September 21 to file responsive pleadings but refused to continue the trial date originally set, October 9, 1973.

Revised Statute 23:1315 provides in pertinent part:

“The petition shall be filed with the clerk of court and the judge shall fix by order a time and place for the hearing thereof, not less than three weeks after the date of service of the petition.
Within ten days after the service of the petition the adverse party shall answer the same and shall admit or deny the substantial averments thereof and shall state the contention of the defendant with reference to the matter in dispute as disclosed by the petition.” LSA-R.S. 23:1315.

It is important that workmen’s compensation cases be tried promptly to provide relief for the injured employee. Due to the remedial purposes of the compensation statute its procedures are designed to assure relatively swift payment after a full trial on the merits.1 In the instant case the hearing was ordered and [597]*597held more than 3 weeks after service of the petition, a full compliance with the statutory requirement. In the absence of some compelling reason therefor, and here there is no such reason, we find no error in the trial court’s refusal to grant a continuance.

The second contention is based upon the fact that after trial on the merits on October 9, 1973, but prior to signing the judgment, defendant filed a motion to stay the proceedings and for a medical examination on October 31, 1973. The motion is based upon the fact that defendant had not been provided with a copy of plaintiff’s medical report as provided by R.S. 23:1122, although a copy of the same had been requested by defendant’s counsel in a letter to plaintiff’s counsel prior to trial; and that plaintiff failed to appear for a medical appointment with defendant’s physician set for October 26, 1973. Appellant therefore claims it is entitled to. stay further proceedings until plaintiff submits to a medical examination under the provisions of R.S. 23:1124.

Revised Statutes 23:1122 and 23:1124 respectively provide:

“The employer shall cause the examination provided for in the preceding section to be made immediately after knowledge or notice of the accident, and to serve a copy of the report of such examination made by the employer’s physician upon the employee within six days after the examination. If the examination is not made and the report is not furnished by the employer within that time, the employee shall furnish a report of the examination made by his own physician to the employer, for which the employee shall be entitled to receive from the employer the sum of one dollar. Upon the receipt by either party of such a report from the other party, the party receiving it, if he disputes the report or any statement therein, shall notify the other of that fact within six days, otherwise the report shall be prima facie evidence of the facts therein stated in subsequent proceedings under this Chapter.” LSA-R.S. 23:1122.
“If the employee refuses to submit himself to a medical examination as provided in this Sub-part or in anywise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this Chapter shall be suspended until the examination takes place. When a right to compensation is suspended no compensation shall be payable in respect to the period of suspension.” LSA-R.S. 23:1124.

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Cite This Page — Counsel Stack

Bluebook (online)
303 So. 2d 594, 1974 La. App. LEXIS 3519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thymes-v-ampco-plastics-lactapp-1974.