Allen v. George E. Breece Lumber Co. , 139 So. 73 ( 1931 )

DREW, J.

This is a suit under the Workmen’s Compensation Act, and the sole question for decision is the extent of injury to plaintiff’s foot.

Plaintiff contends that he has entirely lost the use of function of his right foot and is entitled to 65 per cent, of his weekly wages for a period of one hundred and twenty-five weeks. Defendant contends that, although the foot was injured to such an extent as to amount to total loss of use of function of that member for a period from October 23, 1929, to June 9, 1939, during which time compensation was paid, that on June 9, 1930, and ever since, his foot has been entirely well, and it owes no further compensation.

The lower court rendered judgment for plaintiff for 65 per cent, of his weekly wages for a period of not more than one hundred twenty-five weeks, less the number of weeks previously paid by defendant, and from this judgment defendant has prosecuted this appeal.

Plaintiff was checking lumber and getting slabs straight on the slacker. In describing the slacker, we will use plaintiff’s own words:

“Q. What kind of machinery was the slacker? A. Where we get the slabs off the chain to saw.

“Q. How did the chains work? A. Come off from the roller and fall on the chain and the chain carries them to the saw.

“Q. Did the chains carry the lumber to the saw? A. The slabs.”

This chain had spurs on it to hold the slabs. Plaintiff was caught in one of these spurs on the chain where it comes over the table and his foot was pulled under the end of the board or side of the board. Plaintiff described the injury received in the following language: “My foot was torn — the top torn off.” All the flesh and ligaments leading to his toes, except the big toe, was torn off.

The accident occurred on October 23, 1929, and plaintiff was confined in the Riverside Sanitarium for forty-one days. He used crutches from that time until April or May, 1930, and since laying aside his crutches, has continued to use a cane for assistance in walking. Plaintiff testified that he had not been able to stand on his foot to do any work up to the time of trial; that he could only walk three blocks with the assistance of a cane, before giving out; and, when asked what was the main disability or inconvenience with his foot, he said:

“A. It gives out. This side of my foot does, and my ankle, and it runs up in my ankle. The main part is from the ankle to the foot.”

He says the foot gives down and there is a weakening up through his leg.

This ease was tried in the lower court in April, 1931, and plaintiff testified to the condition of his foot at that time, as follows:

‘‘Q. What is the condition of the top of your foot and toes at the present time? A. Scar from the injury and my toes are stiff, and my foot.

“Q. Does the scar seem to be grown to the. foot? A. Everything is grown tight and my toes are stiff.

“Q. Your four toes are stiff? A. Yes, sir.

“Q. Can you put those toes on the floor? will they straighten out? A. Cannot put them on the floor, no, sir, with my hand. I can put my big toe down.

“Q. Have to push the others down with your hand? A. I can’t push them down with my hand. * * *

“Q. Are you able, Mr. Allen, to. stand on your foot and use it to get about enough to do any kind of ordinary work that requires standing up and walking? A. Not all of the time.

“Q. How is that? A. Not all the time. If I had time — give me time to rest — but I couldn’t stand on my foot all day.

“Q. Xou state you can only stand and walk about three blocks without stopping? A. That’s all.”

Dr. L. A. Masterson testified that he examined plaintiff’s foot in October, 1930,- about one year after the accident and injury; that plaintiff gave him a history of the case, as testified by plaintiff; and that from his examination he found the following (using his own words);

“Well, on the examination in October, 1930, he had an adherent lineal scar on the top of the right foot. This sear was say from lateral to medial, toward the toes; wide, ragged edge scar. This scar was attached to the top structures of the foot. The tendons were incorporated in the scar. He was unable to either flex his foot upward or downward, dorsal or vertical flexion, except his first toe. He had some motion of the big toe. There was some swelling of the foot at this time, and there was tenderness over the region of the scar on deep pressure. He was unable to bear his weight on his toes of the right foot, nor could he raise his weight on the toes of the right foot. He walked with a decided limp, with the aid of a cane.”

He further testified that the condition of the foot would remain permanent, permanent loss of function, and that plaintiff could not xise the foot to do ordinary work, and that the pain caused by use of the foot will always remain permanent.

Dr. R. W. O’Donnell was called on by defendant to examine plaintiff. Defendant did not summon him to court and plaintiff called him and used him as his witness. Dr. O’Donnell examined plaintiff in December, 1930, and testified to his findings as follows:

“A. The conditions at the time showed considerable scar tissue on the top of the foot— right foot — and complete impaired flexion and extension of the toes of the right foot. But not involving the great toe of the right foot.

' “Q. Can he lower the second, third, fourth and fifth toes to the floor? A. No, sir. He can’t get them to the floor but he can bend them over. He can get them on a straight line but cannot bend them.

“Q. Up and down? A. Up and down.

“Q. So far as they are concerned they are stiff? A. Yes, very little motion in the toes.

“Q. Does pressure ' on scar tissue illicit pain? (Correction, ‘elicit.’) A. Not necessarily in scar tissue, but the scar tissue acts ás a foreign body on the tissues below and forms pain.

“Q. Causes pain by the scar tissue acting as a foreign body and pressing on the tissues below? A. Yes, sir.

“Q. Would he experience pain in walking on the foot? A. Wherever he would put pressure or strain on the sear it may cause pain.

“Q. Normal use in walking would put that pressure on there would it, Doctor? A. Well, if he was using his toes, throwing his weight on his foot, it would very likely cause some pain, because the scar is attached and doesn’t move.”

Dr. O’Donnell further testified that he considered plaintiff’s foot 25 per cent, insufficient for manual labor and that he could not do a full day’s work; that his condition was permanent and that he will always have pain in using the foot. He says plaintiff could do light work, provided he could sit down and rest when he grew tired. If he could not sit down and rest, he would play out before eight hours.

Defendant offered Dr. J. T. French, the regular physician for the defendant pomi-pany, who testified that he examined plaintiff immediately after the accident. He found the skin and surface of the foot abras-ed and the ligaments of four toes torn loose, the four small toes; that he treated plaintiff until June, 1930, when he considered him well. The last time he saw and examined plaintiff’s foot was with Dr. O’Donnell in December, 1930. Dr. French testified that it was impossible to say definitely as to the degree of pain in an injury of that nature, but, in his opinion, there should not be any pain. When he released plaintiff in June, 1930, he was in a condition to do ordinary work and that he so advised the defendant company. He does not think the foot will ever get any better. He further testified that plaintiff is sixty years of age, and the injury involved nothing but the four toes on the right foot and the adhesions of the scar proper on top of the foot, and that caused' a stiffness of the toes. Dr. French sees no reason why plaintiff could not walk without a cane. On cross-examination, he testified in part as follows:

“Q. You don’t think his foot will ever get any better? A. No, sir.

“Q. The flesh and muscles were torn off, scraped off the top of the foot, weren’t they? A. Yes, sir.

“Q. Clear to the bone, so to speak? A. The bone was not exposed, but down almost to the bone. The skin and muscles on top of the foot are very thin. It was down to the ligaments proper.

“Q. No particular muscle left on top of that foot is there? A. Granulated in by granulated tissues.

“Q. What he has there is a skeleton of a foot with skin stretched over it and the scar is fastened to all four of the toes? A. Yes, sir.

‘‘Q. You notice him limp? A. Yes, I noticed that.

“Q. You notice the use of the cane? A. Yes, sir.

“Q. You are not prepared to say that he cannot walk without that cane? A. It’s my opinion that he can.”

The manager of the defendant company testified that he offered plaintiff a job sweeping, where he could sit down or rest for a moment, if necessary, and also offered him a job sitting down running a driller, and plaintiff refused both. Plaintiff denies that he was offered the jobs.

For reasons unnecessary to state, we have carefully reviewed the , testimony of each witness in the ease and are convinced that the preponderance of the testimony shows that plaintiff has totally lost the' use of function of his right foot, within the meaning of the Workmen’s Compensation Act of Louisiana. We know of no better test of the loss of use of function of a member of the body, that has not been amputated, than the inability to perform ordinary labor, due to the injured member.

Plaintiff and the two doctors who testified in his behalf are corroborated, we think, very strongly by the testimony of the manager of the defendant company, who testified that, after defendant’s doctor had pronounced him well, he offered him jobs that would not require plaintiff to stand on or use his foot. If he was well, there was no reason for him to be shown such favors and there is no reason given why his own job was not offered to him.

Our interpretation of section 8, subsee. 1, subd. d, par. 7, of the Workmen’s Compensation Act of the State of Louisiana, as amended by Act No. 85 of 1926, and section 8, subsec. 1, subd. d, par. 15, is that where the injury to the foot, which is not amputated, is such as to prevent an ordinary laborer from performing ordinary labor for a day of eight hours, as was his custom before the accident, he is entitled to compensation at the rate of 65 per cent, of his weekly wages for a period not to exceed-one hundred twenty-five weeks. To hold otherwise would work an extreme hardship on one who has an injured foot, as above set forth, for common reasoning tells us that one who is disabled from performing a full day’s work of eight hours cannot secure a job at a sawmill or any other industrial plant. This doctrine, we think, is laid down in the following cases decided by this court: Dykes v. Ruddle, 14 La. App. 106, 128 So. 686; Carroll v. International Paper Co., 14 La. App. 532, 122 So. 131. And by the First Circuit Court of Appeal in the case of Wells v. New Amsterdam-Casualty Co., in 11 La. App. 284, 123 So. 417.

We find no error in the judgment of the lower court, and it is affirmed, with all costs.