DANIEL v. TRANSPORT INSURANCE CO.

JANVIER, Judge.

Plaintiff, a truck driver employed by Campbell "66" Express Company, sustained injury to his right knee on April 18, 1957, when a heavy box fell from the truck and struck his leg. He was sent by his employer to Dr. W. Rogers Brewster who referred him to Dr. H. R. Soboloff, an orthopedist specialist. Dr. Soboloff found that the plaintiff had sustained "a torn cartilage" and "a softening of the surfaces of the bone," and a "little arthritis in the knee". It was necessary to perform an operation which is referred to as a menisectomy and a part of a cartilage in the knee was removed. This operation was performed on May 21, 1957.

Sometime after the operation the plaintiff returned to work for the same employer and was given identical work and received the same pay.

At the time of the trial in the District Court, which was more than two years after the accident, he was still employed by the same employer, doing the same work and at a pay which had been increased slightly due to a general increase to all employees.

During the time in which plaintiff could do no work, he was paid full compensation and all medical expenses were paid. The compensation paid him totaled $905. Conceding that he had continued to work for the same employer, doing the same work and at the same pay, he brought this suit against the employer and the Transport Insurance Company, the insurer of the employer, contending that, though he had done and was doing the same work, he did so only with considerable pain and that therefore he should be considered as totally permanently disabled.

Defendants maintain that, because of the fact that, for more than two years, he continued to do the same work, for the same employer, and at the same or higher weekly pay, he could not be considered as totally permanently disabled, and, in the alternative, contend that if he was entitled to compensation at all, it should be on a basis of partial disability due to the fact that it was conceded that the function of his right leg had been decreased by approximately twenty or twenty-five per cent.

In the District Court there was judgment in favor of plaintiff and against both defendants under which they were required to pay him maximum compensation of $35 per week for a period not in excess of 400 weeks, subject to a credit for each week during which he had been employed and had received as much as $35 per week, and subject to a further credit of twenty-five and six-sevenths weeks during which he had been paid maximum compensation. In the judgment the fee of the attorney for plaintiff was also fixed, as was the fee of a medical expert. From this judgment defendants have appealed.

The District Judge set forth his reasons as follows:

In support of their contention that the plaintiff should not be considered as totally permanently disabled, defendants point to certain conceded facts, first of which is that, for some twenty months preceding the date of the trial, plaintiff had done identical work for the same employer and at the same pay. And they also point to several statements of plaintiff which, if not read in connection with other statements, might indicate that the pain which he suffered was intermittent and not continuous and not particularly severe.

Plaintiff, on the other hand, relies upon the testimony of Dr. Edward Haslam, an expert produced by him, and particularly upon the testimony of Dr. Soboloff, an orthopedic expert produced by the defendants themselves, and upon the testimony of Dr. Soboloff we base our conclusion that the judgment in favor of plaintiff was correct and that, though he has been able to perform the same work, he has done so only with considerable pain and also that there is the grave possibility that he will later have to undergo an additional operation which will further incapacitate him.

It is interesting to note that the testimony of Dr. Haslam and the testimony of Dr. Solomon Winokur, an expert produced by the defendant, cannot in certain particulars be reconciled. It appears that shortly before the trial, at the same time, these two experts examined plaintiff's knee and that, as a result of that examination, Dr. Haslam found that it was some three-quarters of an inch larger than it should be and that there was every reason for the disability and the pain of which plaintiff complained, whereas Dr. Winokur, at the same examination, found that there was no increase in the size of the knee and that there was no reason for the pain of which plaintiff complained.

In view of this conflict we have found it interesting to note that there is no doubt at all that Dr. Soboloff obviously believed that, at the time of the trial, plaintiff's condition had substantially worsened; that there was good reason for the pain of which he complained, and that there was possibility that an additional operation might be necessary.

Dr. Soboloff, as already stated, performed the operation on May 21, 1957. On October 10, 1958, in a report which he made to the N. O. Rosenbush Claim Service, he stated:

Still later, in June, 1959, which was more than two years after the original operation, in a letter to counsel for defendant, Dr. Soboloff said:

In his testimony itself, when asked a question concerning a report which, on May 29, 1959, he had made to the N. O. Rosenbush Claim Service, this testimony involving the question of whether or not there was cause for the complaints of pain which the plaintiff had been making, Dr. Soboloff said:

In view of this testimony of Dr. Soboloff, the expert produced by the defendants, we find it impossible to avoid the conclusion that plaintiff not only suffered substantial permanent injury to his right knee, but that there was real cause for the complaints of pain which he had been making.

Defendants point to several statements of plaintiff which might be interpreted as indicating that the pain was only intermittent, but there are other statements of his and testimony of lay witnesses which indicate that his pain was almost constant and that, whenever it was necessary to lift heavy objects or to jump from the body of the truck to the ground, or to climb to the body of the truck from the ground, he suffered substantial pain.

In his work on Louisiana Workmen's Compensation Professor Wex S. Malone, in section 274, says:

We recognized that fact in Beloney v. General Electric Supply Co., 103 So.2d 491, and cited Reed v. Calcasieu Paper Co., 233 La. 747, 98 So.2d 175. The Supreme Court, in the Reed case, cited many earlier authorities, particularly Brannon v. Zurich General Accident & Liability Ins. Co., 224 La. 161, 69 So.2d 1, 3, in which we find the following:

While the plaintiff in the case at bar has done the work in a most satisfactory manner, we are convinced that it has been only with considerable pain. Basing our conclusion on the established jurisprudence we feel that he is entitled to compensation based on total permanent disability.

Counsel for plaintiff concede that, so long as plaintiff did the same work for the same employer, at the same rate of pay, credit was properly given on a week per week basis and that therefore the deduction from 400 weeks of those weeks during which he worked was properly made.

Accordingly the judgment appealed from is affirmed at the cost of appellant.

Affirmed.