#### NESOM v. CALDWELL & McCANN.

No. 3301.

Court of Appeal of Louisiana. First Circuit.

Nov. 22, 1950.

Hirsch & Greene, Baton Rouge, for appellant.

Watson, Blanche, Fridge, Wilson & Pos-ner, Baton Rouge, for appellees.

LOTTINGER, Judge.

This is a Workmen’s Compensation suit in which the plaintiff seeks to recover compensation at the rate of $30.00 per week for a period of 400 weeks on the basis of total permanent disability. It is clear from the pleadings that defendants’ business and plaintiff’s duties were hazardous 'within the meaning of our compensation law, Act. No. 20 of 1914, as amended, and', further,' it-is undisputed that -if plaintiff is totally and permanently disabled, he would be entitled to compensation at the rate and for the period prayed for in his petition. The lower court rendered judgment in favor of the defendants and plaintiff prosecutes this; appeal.

The record establishes that plaintiff is an iron worker and was so engaged on March 1, 1949, the day of the accident. The injury occurred when a large piece of iron crushed his left leg just above the knee. Although his leg was not fractured, the tissues and blood vessels were crushed and bruised and as a consequence plaintiff was hospitalized for ten days and confined to his bed at home for an additional period of five weeks. Compensation was paid at the maximum rate for eight weeks, and during either March or April, plaintiff found work with another employer, Stone and Webster. This latter employment continued for some eight months; however, the job upon which he was working was completed • and' since that time he has been unable to find work.

The question presented for determination is simply whether the plaintiff is totally and permanently disabled within the meaning of our compensation law. The trial judge found that he was not, and with this holding we agree. ;.

The evidence, strangely enough,'is not conflicting to any great extent, and indeed the only conflicts to be found therein1 are only minor disagreements between the medical men. From the testimony of the plaintiff himself it would appear that he bases his claim not so much upon inability to control'the leg as fear of attempting'to climb because of the injury. 'The evidence 'does shotv that the duties of an iron worker are many and varied, and that the ability' to climb and hol'd onto scaffolds and beams is most essential. Further, it is shown that plaintiff has done no climbing since his injury, and that during the eight months he worked for Stone and Webster he was a “swamper” or operator of a winch, which necessitated but little use of. his--limbs'.' A “swamper” is a part of an iron- worker’s duty and áccording to Mr. Dempsey ,C. Kerr,: foreman of Stone and Webster, the *714plaintiff w:as employed as an iron worker during the eight months subsequent to the accident.

The medical testimony points to a finding by Dr. McVea and Dr. Sabatier of a ten per cent (10%) disability in the movement of the leg, accompanied by a loss of sensation. Both of these men were called as witnesses by the plaintiff, and in our opinion their testimony is itself sufficient basis for denying his claim. Dr. Sabatier stated clearly and emphatically that, although there was a weakness of the muscles' of the leg, he thought that plaintiff could with safety,do the climbing required of a man in his employment. And again he stated very definitely that in his opinion plaintiff would be able to resume his duties as an iron worker. Dr. Sabatier’s testimony would appear to be by far the most valuable in deciding the case because of the fact that he again examined the plaintiff on the day of the trial, which was February 16, 1950. As stated above, he did find a ten per cent (10%) disability of the lower extremity and also a certain amount of muscle weakness. However, neither he nor Dr. McVea seemed, to' think that this limited disability would in any way affect the plaintiff’s ability to do the usual and customary duties of an iron worker. This leaves, then, only the testimony of the plaintiff himself to the effect that he does not *think*that he could climb. However, the record shows very clearly that plaintiff has at no time since the accident had a job which required that he climb, nor has he ever made any attempt to test his leg by attempting to climb. From a close analysis of the medical testimony submitted in this case, we have come to the same conclusion that the trial court did, that the ten per cent (10%) disability to the movement of plaintiff’s leg, which disability can be reasonably expected to improve or disappear, has not disabled the plaintiff from doing work of the same or similar description, kind or character to that which he was accustomed to doing or was doing at the time of the accident.

This court sustained a judgment in favor of an employee in the case entitled Rabi-taille v. Steel Tank Construction Co., La. App., 42 So.Zd 300, 303, where the employee claimed that he was afraid to climb and that this fear was based on and corroborated by medical testimony. In the Rabitaille case, this court stated:

> “He seems to be of the opinion that any danger involved by the plaintiff in climbing would be a danger produced 'more by fear of loss of his life by falling from a ladder or a scaffold than because of any injury he may have, and with respect to that opinion we would say that it is very significant, in considering the plaintiff’s ability to carry on that part of his work which he is required to do, for, he says further, Tf he is afraid of it I would recommend that he not go back’. When we take this statement in connection with the testimony of those who testified on behalf of the plaintiff and that of the other doctors who1 testified for the defendants, to the effect that it might be a dangerous thing for this man to continue doing work which required climbing, we find that he is disabled within the meaning and the terms of the workmen’s compensation statute because he can no longer do and perform all of the duties that are required by the nature of his employment.”

Even though the Rabitaille case was not cited by either party to the case at bar, we make reference to it to show that the employee in said case had medical reason and basis to think that he could not climb or to base his'fear upon, whereas, we do not find that to be true in the case at bar. Plaintiff’s own medical witnesses claim that he could with safety do the climbing required of a man in his employment and that he is able to • resume, his duties as an iron worker. Plaintiff’s fears are baseless in that none of the doctors have corroborated this plaintiff as to the basis for. his fear of bodily harm to himself or to others, or his inability to climb. If we granted this employee compensation, it would be based' solely on his own testimony that he fears to climb because we do not think that he has supplied that sufficient reason and medical corroboration to form a basis for fear.

In our opinion, therefore, the plaintiff has utterly and completely failed to prove the total and permanent disability which he claims. The law is well settled *715that the plaintiff in á compensation suit must prove his claim by a preponderance of the evidence, and this, we think, he has failed to do.

For the reasons assigned above and the further reason that there appears to be no manifest error in the findings of the lower court, we are of the opinion that the judgment appealed from should he affirmed.' Judgment is therefore affirmed at appellant’s cost.

ELLIS, Justice

(dissenting)..

The plaintiff in this case was a structural steel worker when he suffered a crushing injury to his left leg above the knee'which, according to the medical testimony, has resulted in a 10% loss of function in his left leg which Dr. McVea regarded as permanent. It is established that the plaintiff has a 10% loss of flexion in the left leg, that is, he cannot bend his left leg against his thigh as 'well as he can his right leg! The left leg is one-half inch smaller than the right leg at equal points above the knee. As plaintiff was left-handed, the doctor stated that it would he anticipated that his left leg would he slightly larger than his right leg, ordinarily, and that the smallness of the left leg is attributed to atrophy of the muscles as a result of the injury.

Plaintiff, prior to the accident, had a congenital weakness of both knees in that they were not as stable as usually found on lateral motion of the leg on the thigh, and as a result of the accident this is more pronounced in the left leg, thus showing an aggravation of the congenital condition ,as the result of the accident. Also, as the result of an injury to a nerve, plaintiff has an area of diminished sensation or numbness on the anterior medial aspect of the left leg, which he testified was very bothersome.

One of the duties of a structural iron worker is that of being able to climb up and down and to handle and place steel at great heights. The plaintiff was a structural steel worker on the State Capitol building when it was constructed.

The question before the Court is whether the plaintiff, taking into1 account his injuries, can perform the duties of a structural steel worker or whether he is totally and permanently disabled from performing such duties.

Plaintiff testified that he suffered pain in his left leg and that he did not believe he could climb due to the weakened condition of his left leg and a lack of ability to flex the leg Ls-described. In other words, he had never attempted to climb because he'had a fear that his leg might give way.

Dr. McVea was asked the following question and gave the following answer:

> “Q. Doctor, for a man who would have to climb at great heights and climb more or less with his knees like a monkey would this-sort .of loss of function seriously affect him in his climbing?

> “A. I believe he would compensate for this loss of function and be able to climb, but that *he would be aware that his left leg ivas not as strong as his right leg."*(Emphasis added.)

Dr., Tanner, not having examined the plaintiff at the time of trial or within several months prior to the trial, did not feel that he was in a position to state whether plaintiff could return to work.

Dr. Sabatier estimated that the lower extremity was about 10% disabled but he was óf the' opinion that “the probability of return of muscle function, however, -can be expected with guided exercise.” He was also of the opiniomthat the numbness would be permanent “but I feel that the muscle weakness might well be overcome.” He testified positively that at the time of the trial the muscle weakness had not been overcome. He felt that plaintiff could climb “in. view of seeing other people who have comparable injuries engaged in that work.” He was asked the following question and in response gave the following answer:

> “Q. You don’t feel that this would endanger other workers that might .be working with him at these great heights ?

> “A. I feel that any man who climbs endangers the other workers, and I feel that any danger he might afford could easily be overcome with reasonable precaution.”

Thus, the medical testimony reveals that the plaintiff has a ¡permanent numbness as *716a result of a nerve injury, a left knee, which, although unstable prior to the accident, was rendered more so as a result of the accident and with a loss of flexion, but that plaintiff could, in the doctor’s opinion, climb because “he would be aware that his left leg was not as strong as his right leg,” and as to any danger to any structural workers, the doctor felt “that any danger he might afford could easily be overcome with reasonable precaution.” It would appear to me that the doctor was saying that this man should not climb unless he kept in mind the weakness of his left leg and used extra precaution. In other words, the plaintiff is expected to keep his mind on his work and on his disabled leg at the same time so that he might not endanger his own life and the lives of other workmen.

The majority opinion attempted to distinguish the case of Robitaille v. Steel Tank Construction Co., La.App., 42 So.2d 300, 302, decided by this Court. In my opinion, the present case is much stronger than that case for the very simple reason that in the case cited the disability was found to be 15% to 20% due to limitation of extension of the ankle. This was the only physical disability that' the plaintiff had in that case, whereas in the present case we have a loss of flexion, a numbness or loss of sensation and an aggravated instability in the left knee. In the case cited, it is true that there was medical testimony to the effect that plaintiff should not climb, however, there was contrary medical testimony. In the Robitaille case, this court, in speaking of the doctors’ testimony who did not think that the plaintiff therein should climb, stated : “ * * * That, in our opinion, is easy to understand because certainly with the limited motion in his ankle, it would be apt to give away on him at any time and if that would happen whilst he is in the act of climbing, he may have very serious results.”

The above quoted statement from the .cited case applies equally in the present case. In the . present case, however, the disability is greater, and if we reached the conclusion in the Robitaille case that by reason of the limited motion in the claimant’s ankle that he was permanently and totally disabled because he could not climb with safety, I am of the opinion that we should have reached the same conclusion in this case. In the majority opinion it was stated that reference was made to the Rob-itaille case “to show that the employee in said case had medical reason and basis to think that he could not climb or to base his fear upon, whereas, we do not find that to be true in the case at bar.”

In my opinion, there was more medical reason for the plaintiff in the present case to think that he could not climb than in the case cited. One of his injuries and permanent disabilities was similar t.o the plaintiff’s in the Robitaille case, that is, loss of flexion, but, in addition, the unstable condition of both knees, the left being more unstable than the right as the result of the injury, and his loss of feeling in a certain portion of his left leg renders him more disabled to climb than Robitaille.

The doctors in the present case did not testify that plaintiff had fully recovered but that “with guided exercises” the weakness of the muscles of the left leg will be overcome, and “after he climbs a while” they believe the disability or weakness of the muscles will be overcome. No reference is made to lack of ability to flex the leg which, in my opinion, is necessary in climbing up and particularly in climbing down or squatting down or stooping in order to sit down, nor to the numbness or lack of feeling in a portion of the left leg.

In the record, also, is lay testimony by several other structural steel workers to the effect that anyone employed in that occupation must not be physically handicapped as is the plaintiff in this case. He might injure himself as well as a fellow worker.

For these reasons, I am of the opinion that plaintiff is totally and permanently disabled and should be awarded compensation for a period not exceeding 400 weeks.

I therefore respectfully dissent.