#### Jules DUSANG v. HENRY C. BECK BUILDERS, INC. and Aetna Life and Casualty Insurance Company.

No. 10489.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 6, 1979.

Rehearing Denied Feb. 20, 1980.

*776Singerman, Cosentino, Broussard, Toups & Troyer, Joseph M. Singerman, New Orleans, for plaintiff-appellee.

Johnston & Duplass, Lawrence J. Du-plass, New Orleans, for defendants-appellants.

Before SAMUEL, LEMMON, GULOTTA, BEER and CHEHARDY, JJ.

LEMMON, Judge.

Plaintiff’s corporate employer and its workmen’s compensation insurer have appealed from a judgment awarding plaintiff compensation benefits based on total and permanent disability. The principal issues are (1) whether plaintiff in fact has suffered substantial pain while working regularly in the same or similar type of employment since the compensable accident and (2) whether an employee who continues to work in the same or similar type of employment, but does so in substantial pain, is totally disabled within the contemplation of R.S. 23:1221, as amended in 1975.

I

In September, 1976 plaintiff, a 39 year-old iron worker and welder, injured his wrist and shoulder in a fall on the job. He continued to work daily through January, 1977, when his employment was terminated as part of a general reduction of the employer’s work force. After a brief period of unemployment, plaintiff obtained employment as an electrician welder (similar but perhaps less strenuous work) and continued to work regularly thereafter. At the time of the May, 1978 trial, he had not missed any work (except for the brief period of unemployment), had never been hospitalized or undergone surgery, had not sought medical attention or taken any medication in about a year, and was earning higher wages than at the time of the accident.

On the day of the accident plaintiff was referred to an industrial physician, who diagnosed sprains of the shoulder and wrist. When plaintiff’s complaints persisted after several weeks of treatment (during which time he continued to work regularly), he was referred to Dr. Alldredge, an orthopedic surgeon.

Dr. Alldredge found a normal range of shoulder and wrist motion, despite tenderness in both areas. The doctor administered cortisone injections, and plaintiff improved steadily through his last visit on November 8, 1976, at which time he was “greatly improved”.

Dr. Alldredge explained that the diagnosed shoulder condition of biceps tendonitis is irritation of the tendon, which is encased in a sleeve of ligaments and tissues in the shoulder and upper arm. He opined that pain from this type of tendonitis generally resolves in two to three months, and that the patient “nearly always” achieves complete recovery without residual disability. He added that rarely is biceps tendonitis curable only by surgery, but admitted *777that in these rare instances the patient would continue to experience pain.

Plaintiff did not seek further medical attention until February, 1977, when he consulted Dr. Adatto, an orthopedic surgeon, who diagnosed biceps tendonitis of the shoulder and reactive synovitis of the wrist. The doctor prescribed medication, and when plaintiff’s complaints of shoulder pain persisted, he recommended surgical rerouting of the biceps tendon. Plaintiff declined, expressing fear that he might have less use of the arm after surgery.

At trial Dr. Adatto stated that biceps tendonitis produces pain, particularly in certain uses such as lifting, extending, rotating or other activities where the tendon is stretched or is moved from point to point. However, he never spoke of plaintiff’s condition in terms of substantial or disabling pain, but simply stated that the degree of pain is subjective and depends on the particular individual’s ability to tolerate pain.

On the basis that the tendonitis is likely to be a chronic problem the doctor assigned a disability of the shoulder of less than five per cent, with no limitation of function “as long as he is able to work”.

II

On this record the trial court could only have found that plaintiff was totally disabled because he was working in substantial pain in order to earn a living. Such a factual finding is at best minimally supported by the record. The medical evidence arguably concedes that chronic pain can exist from biceps tendonitis, and considerable lay evidence (apparently accepted by the trial court) established plaintiff had consistently complained of pain since the accident and had requested assistance in chores he had previously handled by himself. Despite the lack of medical testimony that the pain was substantial or disabling, we accept the factual finding that plaintiff did endure substantial pain in continuing employment, and we proceed to consider the legal issue of whether the overall evidence supports a finding of total disability.

There have been few judicial decisions since the 1975 amendment which discussed the role of substantial pain in the determination of the extent of disability. See Johnson, Work of the Louisiana Appellate Courts for the 1977-78 Term — Workman’s Compensation, 39 La.L.Rev. 881, 883 (1979). Prior to the 1975 amendment an employee was deemed totally disabled if he was physically unable to perform work of the same or similar character to that which he was accustomed to performing at the time of his injury *[Knispel*v. *Gulf States Util. Co.,*174 La. 401, 141 So. 9 (1932)], or if he was unable to do so without enduring substantial pain *[Brannon v. Zurich Gen. Accident & Liab. Ins. Co.,*224 La. 161, 69 So.2d 1 (1953)]. On the latter issue the courts have reasoned that the law does not require an employee, in order to make a living, to work in significant pain that would disable others who are in a better economic position. The evident logic is that the employee who works in substantial pain because of economic necessity could collect compensation by refraining from work and should not be penalized because he works under circumstances that most would not.

In apparent response to numerous complaints of grossly inadequate benefits to totally disabled employees and of abusive awards of benefits to employees not actually disabled from earning wages, the legislature adopted the 1975 amendment which redefined total disability and partial disability and substantially increased benefits for total disability. The apparent purpose was to treat as partially disabled many of the type of claimants who would previously have been treated as totally disabled, although actually earning significant wages, and the substantial enhancement of benefits payable to totally disabled employees apparently represents the countervailing legislative concession in the balancing of interests.

The primary purpose of the compensation system is to provide payments for loss of earnings because of disability and not to provide payments for the injury which caused the disability or for resultant *778pain and suffering. All relevant factors of each individual case must be considered in the judicial determination of entitlement to benefits based on inability to earn wages. The fact of continued earnings is always an important factor, and the faet of the employee’s enduring substantial pain while earning those wages has been a judicially imposed exception in mitigation of the fact of continued earnings.1

There is another practical consideration raised by the fact that a particular employee must endure substantial pain in continuing to earn wages. When the particular employee cannot continue in gainful employment without suffering substantial pain caused by the compensable injury, the logical inference is that he has a residual partial disability which eventually is likely to worsen. Because courts are called upon to grant or deny payment of benefits and not to defer payment, the tendency would be to grant benefits in case of doubt, rather than to deny benefits in a final adjudication. This consideration no doubt was an unexpressed factor in the judicial decision to award total disability benefits to an employee who continued to earn wages (and thus literally was not totally disabled), but endured substantial pain in doing so.

The 1975 amendment offers an attractive alternative to an award of total disability benefits in this situation. A judgment decreeing partial disability allows the payment of benefits to be deferred when an employee is earning as much as or more than he did at the time of injury, so that an employer does 'not have to pay benefits during the weeks the employee maintains full earnings, while the employee is protected during those weeks (up to the statutory maximum) in which the pain prevents him from earning any wages or limits his earnings to an amount less than the benefits due. And if and when the pain from the original injury eventually prevents the employee from working (assuming the causal relationship), the employee will be entitled to total disability benefits.2

We conclude that, under the 1975 amendment to R.S. 23:1221, an employee is generally not totally disabled if he can “engage in any gainful occupation for wages”, R.S. 23:1221(2), [unless he fits into the classification of an “odd-lot” worker — see 2 Larson, Workmen’s Compensation Law, § 57.51 (1976)]. Rather, such an employee is partially disabled to perform the duties in which he was customarily engaged, R.S. 23:1221(3). And when the employee can perform such duties, but only in substantial pain, he is still only partially disabled. Nevertheless, the award of benefits for partial disability protects the employee when and if the disability causes his earnings to diminish temporarily or to cease, so that he will not be faced with an adjudication of no disability that has acquired the authority of the thing adjudged.

We therefore conclude that fairness and justice, as well as the spirit of the 1975 amendment, requires the judgment in favor of this plaintiff (who at best has only some partial disability) to be modified to award benefits based on partial disability. Since plaintiff has actually earned more wages every week since the injury than he did at the time of the injury, there are no benefits presently due. In any week in the future that the September, 1976 injury prevents plaintiff from earning full wages, benefits are. due in the amount of the difference between the wages he was earning at the time of the injury and any lesser wages he actually earns in that week in any gainful occupation for wages, until there has been a *779payment of benefits for a total of 425 weeks or until the pain caused by the injury either becomes insubstantial or becomes totally disabling.

*AMENDED AND RENDERED.*

BEER, J., concurs and assigns reasons.

GULOTTA, J., dissents and assigns reasons.

CHEHARDY, J., dissents for the reasons assigned by GULOTTA, J.

1

. Since workmen’s compensation benefits are payments substituting in part for lost wages, rather than compensating (as do tort awards of general damages) for pain and suffering, the fact' of pain would be otherwise irrelevant in a compensation case.

The ultimate test for degree of disability is the capacity to earn wages after the accident. The fact of actual earnings over a sustained period after the accident is not a conclusive measure of earning capacity, but does constitute an important consideration in the ultimate determinátion, and all circumstances bearing on those earnings are relevant considerations.

2

. See R.S. 23:1331, which provides for review when the employee’s incapacity increases or diminishes subsequent to the judgment.

BEER, Judge,

concurring.

I respectfully concur in the result reached by Judge Lemmon’s majority opinion.

However, I do not agree with that portion of the majority opinion which states:

> “Despite the lack of medical testimony that the pain was substantial or disabling, we accept the factual finding that plaintiff did endure substantial pain in continuing employment, and we proceed to consider the legal issue of whether the overall evidence supports a finding of total disability.”

In my view, the record does not support a factual finding that plaintiff endured “substantial pain.”

GULOTTA, Judge,

dissenting.

I dissent.

In this workmen’s compensation suit plaintiff was awarded benefits at the rate of $95.00 per week, commencing September 21, 1976 “for disability, during the period of his disability, . . . , subject to a credit for each installment already paid; and for medical expenses up to the ‘amount allowed’ ...”

Jules Dusang, an ironworker-welder, sustained injury to the right hand, wrist, elbow and shoulder on September 21, 1976 in a work connected accident. Plaintiff’s injuries were diagnosed as a sprain of the right wrist and biceps tendonitis of the right shoulder. Dusang continued in his employment after the injury until January 1977 at which time he was terminated because of a reduction in work force. For approximately six weeks thereafter Dusang received unemployment compensation. However, following that interim plaintiff again became employed and continued employment in similar type work as that in which he was engaged at the time of the accident. At the time of trial Dusang was apparently employed as an electrician welder doing welding of a less arduous type. His hourly pay between the date of injury (September 21, 1976) and the trial dates (April 4, 1978 and May 11, 1978) had increased.

Defendant, appealing, contends that an employee who has no functional disability, has never been hospitalized, required no surgery, required no medication approximately five or six months after the accident, and who has been employed continuously (with the exception of the time that he received unemployment compensation) since the accident in the same or similar type of work, earning a greater income than at the time of injury, is not entitled to workmen’s compensation.

Defendant relies heavily on *LeBlanc v. Commercial Union Assurance Company,*349 So.2d 1283 (La.App. 1st Cir. 1977), writ denied, 351 So.2d 174 (La.1977); *Kilbourne v. Armstrong,*351 So.2d 802 (La.App. 1st Cir. 1977); and *Barksdale v. Southern Airways, Inc.,*365 So.2d 493 (La.App. 1st Cir. 1978). In the *LeBlanc*case the First Circuit held that an employee is not entitled to workmen’s compensation benefits where he is earning greater wages than at the time of the accident. In that case, the Court stated:

> “. . . If such an employee earns wages equal to or greater than those earned at time of injury, he is entitled to no compensation during the period such equal or greater wages are earned.”

Plaintiff, on the other hand, relying on the Third Circuit decision in *Phillips v. Dresser Engineering Co.,*351 So.2d 304 (La. App. 3rd Cir. 1977), writs denied, 353 So.2d 1048 (La.1978), contends that a claimant who is working in substantial pain is entitled to receive workmen’s compensation, even though the employee earned more upon returning to work as a welder than he *780had been earning at the time of the accident. See also *Rachal v. Highland Insurance Company,*355 So.2d 1355 (La.App. 3rd Cir. 1978), writ denied, 358 So.2d 645 (La.1978).

The primary problem with which we are confronted is whether one who suffers substantial pain when he continues in his same or similar occupation, where no showing had been made by the employee that his injury would cause substantial pain while performing any other occupation, is permanently and totally disabled or temporarily and totally disabled on the one hand, or partially disabled on the other.

The Legislature by Act 583 of 1975, as incorporated in R.S. 23:1221, redefined disability under the Compensation Act. R.S. 23:1221 provides, in pertinent part, as follows:

> “(1) For injury producing temporary total disability of an employee to engage in any 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, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.

> (2) For injury producing permanent total disability of an employee to engage in any 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, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.

> (3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any 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, and experience, during the period of disability . . . .”

In *Phillips,*supra, a welder’s helper who sustained a work connected injury but who returned to his trade as a welder and worked in substantial pain, was found to be permanently and totally disabled. In *Ra-chal,*supra, a claimant, who was employed both as a police officer and a farm worker, was injured while working on the farm. He did not return to the farm after the injury but did return to police work. However, the evidence in *Rachal*indicated that although the plaintiff was working as a police officer he was doing so in substantial pain. The Court found Rachal totally disabled for the purposes of workmen’s compensation. Although the plaintiff in that case had never returned to work on the farm he had returned to light police work five months after the accident. The *Rachal*Court stated:

> “Our interpretation of the amended statute is that an injured employee is totally disabled if he is unable to pursue any gainful employment while experiencing substantial pain.”

The court went on to say:

> “We thus hold that this employee, who suffers substantial pain when engaging in gainful employment, is totally disabled.”

However, in the *LeBlanc*case, supra, the Court found partial disability where an employee had suffered lung damage due to inhalation of ammonia gas while employed in an industrial plant and was unable to return to his same job, but had obtained employment in another unrelated occupa*781tion at an hourly rate of pay in excess of that earned by him at the time of the injury.

This Court in *Dufrene v. St. Charles Parish Police Jury,*371 So.2d 378 (La.App. 4th Cir. 1979) concluded that a heavy equipment operator who could not, because of substantial pain, perform the heavy work of lifting or pulling required of him, suffered partial disability where there was no additional evidence to show that he “reasonably could not do work of a reasonable character available to him.” The Dufrene Court went on to say that the evidence:

> . . does not negate his ability to do lighter work of the same character, for example, lighter machines or vehicles, or work not involving heavy lifting or pulling with his left hand.”

In connection with the factual question of plaintiff’s “substantial pain” in the instant case, plaintiff’s wife and co-workers, who were working with plaintiff at the time of the accident and subsequent thereto, testified of Dusang’s continuous complaints of shoulder pain from the time of the accident up to the dates of trial. The co-workers explained that plaintiff’s pain restricted him in performing certain tasks and that on occasions plaintiff received assistance in his work. According to these witnesses, plaintiff complained practically every day about the pain in his shoulder. These workers indicated that ironworkers and welders were occasionally required to do heavy lifting and overhead work. There was also testimony indicating that plaintiff’s present job as an electrician welder was less arduous than his pre-injury work as an iron-worker welder.

Plaintiff’s medical treatment extended from the day following the accident (September 21,1976) to July 21,1977 and included cortisone injections, heat treatment and over-the-counter drugs. The claimant’s injury was described as bicipital tendonitis of the shoulder, as well as reactive synovitis of the wrist.1 Because of plaintiff’s failure to respond to conservative treatment, Dr. Kenneth Adatto, who saw plaintiff on February 17, 1977 and treated him through July 21, 1977, indicated that surgery would probably be required to reroute the biceps tendon. He indicated further that lifting, extending and rotating the arm would produce pain. These activities, according to the physician, cause the bicipital tendon to become stretched.

Plaintiff’s supervisor testified that between the date of the accident, September 21, 1976 and the date of termination, January 21, 1977, plaintiff neither complained about shoulder pain nor complained of inability to carry out his job.

The orthopedic surgeon who examined plaintiff on October 22, 1976 and found biceps tendonitis of the right shoulder and a sprain of the right wrist, also found plaintiff much improved on an October 27th visit. Further improvement was noted on a November 2, 1976 visit. Plaintiff was seen again by this physician on November 8, 1976, at which time he was found to be “greatly improved”. According to this expert, a person suffering from this type of tendonitis would “nearly always get well” and “recover completely”. This witness stated further that tendonitis of this nature rarely continues.

In my opinion, the evidence supports a conclusion that for the period of time between the date of injury through the time of trial, Dusang was unable to perform his occupation as a welder without substantial pain.2 And, well established is the jurisprudential rule that an injured workman is not *782required to work in substantial pain. See *Dufrene,*supra;*Phillips,*supra;*Rachal,*supra; and *LeBlanc,*supra.

However, is such an employee, as our plaintiff, entitled to total or partial disability benefits?

Unfortunately, the Legislature failed to come to grips with the substantial pain problem in circumstances such as the instant case. If we literally interpret sections 1 and 2, as written, and apply them to the facts in our case, an employee would only be able to establish permanent total disability or temporary total disability if he could show that he was unable to engage in every type of work without substantial pain. Were we so to interpret the statute, we would be placing a virtually impossible task upon the employee who pursues work of a similar nature and does so in substantial pain. Because we are dealing here with social legislation, we cannot construe the statute so literally as to place an unreasonable burden of proof on the employee.

Accordingly, I conclude that where an employee proves that he has pursued his post-accident employment of a similar but lighter nature, but does so in substantial pain, even while receiving greater wages than earned at the time of the injury, he is permanently and totally disabled or temporarily and totally disabled. The trial judge awarded benefits for disability during the period of disability, subject to a credit for any amount already paid by defendant. I find no error in that judgment.

CHEHARDY, Judge, dissenting for reasons assigned by GULOTTA, J.

I respectfully dissent for the reasons assigned in the dissenting opinion of Gulotta, J.

1

. Although not clear from the record, it appears that tendonitis of the shoulder is an inflammation of the biceps tendon. This tendon runs in the groove of the shoulder and is encased in ligaments and tissue. The irritation and inflammation can be caused spontaneously or as the result of an injury. Synovitis of the wrist seems to be an inflammation of the membranes located in the joint of the wrist.

2

. Although there are no reasons for judgment included in the record, a reasonable inference arises that by awarding the disability the trial judge concluded that Dusang proved substantial pain.