Zimmerman v. United Machinery Corp.

208 So. 2d 336, 1968 La. App. LEXIS 5451
CourtLouisiana Court of Appeal
DecidedMarch 4, 1968
DocketNo. 2880
StatusPublished
Cited by6 cases

This text of 208 So. 2d 336 (Zimmerman v. United Machinery Corp.) 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
Zimmerman v. United Machinery Corp., 208 So. 2d 336, 1968 La. App. LEXIS 5451 (La. Ct. App. 1968).

Opinion

CHASEZ, Judge.

The plaintiff, Andrew Zimmerman, filed this suit against the defendants, United Machinery Corporation and Liberty Mutual Insurance Company, Inc., its workmen’s compensation insurer, endeavoring to recover the sum of $14,000.00 together with legal interest from date of judicial demand [337]*337subject to a credit of $464.10 as workmen’s compensation benefits, penalties, attorney’s fees, and costs of this proceeding, to which he alleges he is entitled as the result of an injury sustained to his left thumb arising out of an accident in the course and scope of his employment by the defendant, United Machinery Corporation. He further alleges that as the result of his injury, he suffers from complete numbness of his left thumb making it impossible for him to perform the duties required by his former occupation as electrical mechanic, and entitling him to permanent total disability under the Louisiana Workmen’s Compensation Act.

The defendants answered and denied liability to the plaintiff. They admitted that $464.10 as compensation payments had been made to Zimmerman and that a proposed settlement of $400.00 was refused by the Court.

From a judgment of the lower court in favor of the plaintiff, the defendants have prosecuted this appeal.

The record reveals that on November 22, 1964, Zimmerman was injured in an accident in the course and scope of his employment as a mechanic repairing laundry equipment for United Machinery Corporaiton. As the result of his thumb being compressed between two pieces of steel, Zimmerman has a numbness of his left thumb, which causes him to be unable to work effectively with small parts such as nuts, screws, bolts and wires, when use of his left hand is required to manipulate these parts. Although he is still able to do mechanical work, he is limited to working with larger parts. When the use of smaller parts is required, he must seek the assistance of another. The veracity of this is corroborated by the testimony of Mrs. Zimmerman, who testified that she assisted her husband with these minute operations during a brief period of time that he operated his own washing machine repair service after leaving United Machinery Corp.

The testimony of Jerry Pilot, who was a fellow employee with Zimmerman at NOLA Washing Machine Company, was also to the effect that Zimmerman could not manipulate small parts with his left hand due to lack of sensation in the thumb of that hand. He further testified that while working with Zimmerman, he had been called upon by Zimmerman to assist him when it was necessary to use small parts such as nuts, screws and wires in his work.

Alex Daverede, who operated the NOLA Washing Machine Company, testified that he gave the work assignments to the employees and that he was principally concerned with having the work properly completed. He testified that he personally did not know whether Zimmerman had asked for assistance in handling small parts but it was possible that he may have done so.

The only testimony in the record contradictory to the evidence of the plaintiff is that of Sidney Bonnecarre, Jr., who is presently employed by United Machinery Corporation and who worked there with Zimmerman after his injury. Bonnecarre testified that he had seen Zimmerman use small parts during the period of about two months they both worked for United Machinery Corporation. He testified also that during a part of his working day he could observe Zimmerman’s activities from a distance of about ten to fifteen feet, and that he had seen Zimmerman use small parts in repairing equipment. He further testified that Zimmerman had never called upon him to assist in the use of such small parts. He did admit however that others, whose assistance could have been sought, were also in the work area at times. In addition he testified that Zimmerman’s work also consisted of painting and working with large parts.

Although Zimmerman returned to United Machinery Corporation within about a week after his accident the duties that he performed were limited because of his injury. While his salary remained at the same rate of $1.75 per hour and his designation was still that of an electrical mechanic, his total income was decreased due to the [338]*338loss of overtime as the company could no longer assign him alone on out of town jobs as many would require the handling of small parts. His employer had requested him to teach a new employee his duties, and fearing that he would be discharged Zimmerman voluntarily left United Machinery Corporation about two months after his injury and opened his own repair service for washing machines, with his wife assisting him. This venture was short lived, and he then began his employment with NOLA Washing Machine Company as a mechanic. Here, he was assisted by Jerry Pilot when it became necessary to use small parts. Later he worked in a filling station where he performed only a small amount of mechanical work. He is at present employed as a pipefitter. In all of these occupations, he has handled large equipment and when the use of small parts was required he has called on the assistance of others.

The medical testimony of three physicians also lend credence to the fact that Zimmerman can no longer handle small parts efficiently due to numbness of his left thumb.

Dr. Pierre Espenan, the physician whom Liberty Mutual Insurance Company requested to see the plaintiff, testified that the injury to his left thumb was a compound laceration, that is, a laceration going to the bone but not breaking it, and is termed a flap laceration. The lower flap extended down from the bone up to about the joint space but not into the joint space. After making reasonably good blood supply, Dr. Espenan sutured the flap into place with a simple suture. Dr. Espenan’s testimony reads in part as follows:

BY MR. COURTIN:
Q. “Dr. Espenan, did you examine Andrew Zimmerman on or about November 22, 1964, when he was injured while an employee of United Machinery Corporation?
A. “Yes, I did.
Q. “At whose request?
A. “At the request of Liberty Mutual Insurance Company.
Q. “Will you tell the Court what you found when you examined him ?
A. “He had a laceration of his left thumb; this was a compound laceration in the sense it did go down to the bone; it did not break the bone but it went down to the bone. This was a particular type of laceration; It’s called a flap laceration, the lower flap extending down from the bone up to about the joint space, but not into the joint space.”

Treatment was continued thereafter by Dr. Espenan until April 19, 1965. He further testified that he did not know whether the plaintiff returned to his original type of work, but that at the time of his discharge there was no functional disability of his thumb in that his range of motion was satisfactory and the pad was adequate to protect the bone; however, there was a loss of sensation proximal- to the scar at the interphalangeal joint at the phalangeal crease before the laceration where sensation should have been regardless of whether he had the laceration or not. The pin prick test revealed that Zimmerman could feel pressure as well as pain in some areas but there was almost complete loss of sensation in other areas within a distance of one milimeter. Dr.

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208 So. 2d 336, 1968 La. App. LEXIS 5451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zimmerman-v-united-machinery-corp-lactapp-1968.