LUCAS v. INSURANCE COMPANY OF NORTH AMERICA

No. 5223.

326 So.2d 525 (1975)

B. J. LUCAS, Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants-Appellants.

Court of Appeal of Louisiana, Third Circuit.

Dissenting Opinion February 12, 1976.

Rehearing Denied March 4, 1976.

Writ Granted April 27, 1976.


Attorney(s) appearing for the Case

Stafford, Pitts & Stafford, Alexandria, for defendants-appellants; John W. Scott, Alexandria, of counsel.

Ford & Nugent, by Howard N. Nugent, Jr., Alexandria, for plaintiff-appellee.

William Henry Sanders, Jena, for intervenor-appellee.

Before HOOD, CULPEPPER, DOMENGEAUX, GUIDRY and PAVY, JJ.


PAVY, Judge.

This is a workmen's compensation suit in which the plaintiff, B. J. Lucas, sought a judgment against the defendant, Insurance Company of North America, as insurer of his employer, I. E. Miller & Sons. The trial court awarded plaintiff maximum benefits for total and permanent disability and further held defendant liable for statutory penalties and attorney's fees finding that the defendant—insurer was arbitrary and capricious in terminating plaintiff's workmen's compensation benefits. From this judgment the defendant has appealed. We reverse.

Plaintiff was employed as the operator of an oil field hauling truck and his duties required that he assist in loading and unloading the vehicle. On February 15, 1970, while handling heavy pipe, he sustained a crushing type injury limited to the tips of the middle and ring fingers of his left dominant hand. A few days after the accident either plaintiff quit his employment or his employer discharged him. About two months later he obtained work as the operator of an oil field rigging truck in which employment he had continued steadily until the trial in October, 1974.

There is much argument and evidence in the case regarding the nature and extent of plaintiff's disability in connection with the extent to which the duties of his employment when injured were different from those of his subsequent employment. We pretermit these issues and base our decision on a lack of causation between the injury and the allegedly disabling conditions.

We base this holding on the following: (1) plaintiff's injury was limited to the ends of the two fingers of his left hand, (2) his claimed disability consisted of pain and swelling of the whole hand, parts of the arm and vague and erratic complaints pertaining to other parts of the body, (3) none of the many medical experts could confirm any causal relationship between the injury plaintiff experienced and the type of complaints allegedly disabling plaintiff, (4) many of the experts found plaintiff had an extreme psychological overlay, (5) plaintiff's family doctor found arthritic swelling not only in the two affected fingers but in all fingers of his left hand, the right hand and generally throughout the body, (6) as early as August, 1967, this doctor had noticed bursitis (a form of arthritis) in plaintiff's knee.

Plaintiff was examined, treated or certified by thirteen physicians. Some of these doctors' knowledge of the case is completely insignificant and some of the testimony of the others is irrelevant to the present inquiry. We will now discuss the pertinent parts of the doctors' testimony or reports.

Dr. H. L. Schaheen, general practitioner, initially treated plaintiff. He diagnosed the injury as a hematoma with laceration on end of ring finger and a small hematoma on the third finger of the left hand, stitched the laceration and referred plaintiff to his family doctor.

Dr. Louis Shirley, a general practitioner, treated plaintiff on several occasions for about a month after the accident. His report shows he diagnosed plaintiff's injury as a laceration of the middle and ring fingers of the left hand with a fracture of the left ring finger.

These two doctors had no further contact with plaintiff for he moved to Jena several weeks after the accident and was thereafter treated mostly by Doctors B. E. Doughty and Billy Nesbitt, both general practitioners.

Dr. Doughty saw plaintiff on 11 occasions between the accident date in 1970 and the trial in November, 1974. The first four visits were during the months immediately following the accident. The first visit was to redress the bandage on Mr. Lucas' ring finger and the second visit was to obtain a medical authorization from Dr. Doughty to drive a truck for Pelican Truck Lines. Dr. Doughty did not X-ray Lucas' two fingers but he detected bone fractures in Lucas' left ring finger. These fractures were fully healed by May 27, 1970. After the May, 1970 visit with Dr. Doughty, plaintiff's complaints began to change. On July 23, 1970 he told Dr. Doughty he had pain running up his left arm to his shoulder. On August 24, 1970, plaintiff complained of left shoulder pain and swelling in both hands. There was no longer any complaint regarding the two injured fingers. Dr. Doughty examined plaintiff eight times from August, 1970 until the date of trial and heard complaints including left arm pain, right arm pain, neck pain, headaches, pain across chest, back pain, and blurry eyesight.

The only difficulty Dr. Doughty could find with the two fingers was arthritis. During direct examination, Dr. Doughty admitted this arthritis could have traumatic origin. During cross-examination, this testimony was well clarified:

"Q. Okay, Now when you were asked that question a little while ago about whether or not there was traumatic arthritis in his left ring finger and his left middle finger, it was limited only to those two fingers? A. Uh-huh. Q. Now, is it not true that you've also found that this man has an arthritic condition in his other fingers of both hands? A. That's true. Q. That is true? A. Yes. Q. And then the arthritic condition in these other fingers would be unrelated to trauma because they haven't been exposed to trauma, is that correct? A. That's correct. Q. So it may be that the man was even, if the other fingers are suffering from arthritis, then perhaps these two fingers in question were also suffering from arthritis even before this accident in February of 1970, isn't that correct? A. That's true. Q. So you certainly can't say with any certainty that the arthritis in his two fingers on his left hand was necessarily related to trauma if he's had all these pains in his other fingers? A. No, you can't." Dr. Doughty also testified as follows: "Q. Does this man have arthritis anywhere else besides in his right hand and his left hand? Does he have it anywhere else? A. He's got it just about everywhere. He's got it in his knees, his shoulder, his neck, back, hips. At one time or other he's had pains related to all of it. Q. So he's just arthritic ridden all over his body is what it boils down to? A. Well, I can't quite give that impression. He's not bed-ridden or anything of that sort, but he does have arthritis. And at one time or another he's complained of most major joints anyway. Q. Now, your diagnosis of arthritis both in these two fingers and his unrelated fingers, plus his right hand and these other major joints, is this based on x-ray findings of arthritis on your part, or just a— A. No, it isn't. Q. Is it based on his complaints? A. Complaints, yeah. Q. All right. And is there any other symptom that you based your findings of arthritis on? A. Are you talking about symptoms and signs or just the symptoms? Q. I'm sorry. I couldn't understand you? A. Symptoms and signs or just the symptoms? Q. Symptoms and signs I suppose, sir. A. Well, he'd be swelling, too. Q. All right. Anywhere else besides these two fingers on his left hand? A. Yeah. He's had swelling at times in both hands and I know he's complained of pain and swelling in his hips and knees and shoulders at times. Q. Okay. So his compaints of swelling are not restricted to just these two fingers of his left hand, are they? A. That's correct. Q. Is it fair to say that the symptoms of arthritis you found in this man's left ring finger and left middle finger are the same signs and symptoms you found of arthritis in the unrelated—in the fingers unrelated to trauma? The hand and the other major joints unrelated to trauma? A. Are the symptoms the same? Yeah, the symptoms are the same. Q. That is, swelling and complaints of pain? A. Yes. Q. Had you ever examined this man prior to 1970? A. Yes, I had. Q. For what purpose? A. I saw him on August 31, 1967. He was having bursitis in his left knee, which is a form of arthritis."

Dr. Nesbitt is a general practitioner who treated and examined plaintiff initially on October 1, 1970 for complaints of swelling of the fingers of his left hand. X-rays taken of Mr. Lucas' left hand and fingers disclosed no existing fractures but did show degenerative changes in all fingers. Due to plaintiff's complaints, Dr. Nesbitt referred him to Dr. Lowrey, an orthopaedic surgeon, for examination. Dr. Lowrey advised Dr. Nesbitt that plaintiff's finger stiffness should cause no more than a 10-15% impairment to the left hand and that he was able to return to his former employment. On December 22, 1970, plaintiff again consulted Dr. Nesbitt. He complainted of his shoulder hurting him but Dr. Nesbitt could find no cause of the pain. For this reason, he sent Mr. Lucas to Dr. Irby, a neurosurgeon, for examination. Dr. Irby advised Dr. Nesbitt that he could find nothing neurologically wrong with Mr. Lucas. Dr. Irby also reported that a good deal of plaintiff's difficulties were psycho-physiological in nature.

Dr. Nesbitt examined plaintiff for neck and back pains in early 1971 and finally in mid 1974 for complaints of neck pain and a headache.

In June, 1970, Dr. D. M. Kingsley, an orthopaedic surgeon, examined plaintiff who then complained of finger, arm and shoulder pain. This doctor noted a slight degree of stiffness in the two fingers and sensitivity at the tips of them. X-rays revealed fractures of only the tips of these fingers. This doctor found that plaintiff's finger joints were not damaged in the accident and that only the tips were involved. He thought that the slight residual stiffness he noted in the two injured fingers should dissipate in time with usage and should not be permanent. Dr. Kingsley testified that he thought plaintiff was overreacting and testified that his complaints of arm and shoulder pain could not be related to the finger injury.

Dr. Ray E. King examined plaintiff on two occasions in late 1970 and in December, 1973. During these visits plaintiff complained of his entire left hand, left arm swelling and pain going into the base of the neck, hernia, cervical neck pain and increased sensitivity to the tips of the two affected fingers. Dr. King found full motion in the fingers of the left hand and his x-rays revealed a healed fracture at the extreme tip of the left ring finger. Dr. King found some hypersensitivity of the fingertips and, based on this, concluded that plaintiff's left hand as a whole was impaired approximately 5 to 10 percent.

Dr. Austin W. Gleason, an orthopaedic surgeon, examined plaintiff in March, 1971, at which time plaintiff complained of pain from his ring and middle finger traveling up his arm past his elbow to his shoulder along with headaches and occasional numbness of the entire left arm. This doctor testified that plaintiff could not make a fist because he would not flex his knuckle joints but found full motion in the interphalangeal and distal joints, that is, the last two joints of the fingers. Xrays revealed only a healed fracture to the tip of the ring finger. Dr. Gleason's conclusion was that plaintiff might have a nerve root irritation in the cervical region but could not relate this to the hand injury and suggested that much of plaintiff's difficulty was due to his psychological overlay.

There were many other details concerning the findings and opinions of the experts. Suffice it to say that none of them found any evidence of injury to plaintiff other than to the tips of his two fingers and that the only result that they could connect causally was that injury was the minimum residual stiffness in these fingers.

There is evidence that plaintiff had a prior injury affecting his left index finger with some residual stiffness but the extent of this is not shown. There is evidence that plaintiff had residual effects of polio on his right side but the evidence does not show that it significantly affected the use of the right arm and the hand. The trend of the evidence on this is that, for all practical purposes, there was no impairment of his right arm and hand.

Testimony by plaintiff and lay witnesses was given regarding his alleged disability. In summary, it was to the effect that plaintiff's disability resulted from periodic pain, swelling and discoloration of the whole left hand, parts of the left hand in addition to the two injured fingers and on occasions parts of the left arm. Although it may be that plaintiff does experience these complaints and they may be disabling, the evidence does not preponderate that these conditions were caused by the injury to the fingertips. The evidence preponderates that his complaints are basically the result of the longstanding arthritis and the only result of the fingertip injury is the minimum stiffness in those two fingers which is not disabling. We therefore conclude that the evidence as a whole does not preponderately show a causal connection between plaintiff's injury and any disabling condition.

In Johnson v. Travelers Insurance Co., 284 So.2d 888 (S.Ct.1973), the law with regard to plaintiff's burden of proof on the causal relationship in a workman's compensation case is stated as follows:

"The plaintiff has the burden of proof in a workmen's compensation case. Burk v. Security Ins. Co. of New Haven, 248 La. 177, 177 So.2d 278 (1965); Adams v. Home Indemnity Co., La.App., 180 So.2d 51, writ ref. 248 La. 697, 181 So.2d 398 (1965); Wells v. Kaiser Aluminum and Chemical Corp., La.App., 185 So.2d 37 (1966). It is incumbent upon the plaintiff to establish the causal relationship between the accident and his disability by a preponderance of the evidence. Russell v. Employers Mutual Liability Ins. Co. of Wis., 246 La. 1012, 169 So.2d 82 (1964)."

Accordingly, for reasons assigned the judgment of the lower court is reversed. Judgment is now rendered in favor of defendants, rejecting plaintiff's demands and dismissing his suit. All costs of the trial and appellate courts are assessed against the plaintiff.

Reversed and rendered.

DOMENGEAUX, J., dissents, and assigns written reasons.

DOMENGEAUX, Judge (dissenting).

I respectfully dissent.

The majority "pretermits" the issue of disability and rests its decision solely upon its finding of lack of causal relationship between plaintiff's accident and his subsequent disability. I shall address the issue of disability at the outset, proceed to establish a causal link between the disability and the accident, and finally deal with the aspect of this case relative to penalties and attorney's fees.

DISABILITY

On February 15, 1970, plaintiff was in the employ of I. E. Miller & Sons, functioning in the capacity of driver of an oilfield gin pole truck. After driving his truck to a job site, plaintiff was assisting in the unloading of pipe to be used in the assembly of a drilling rig when a joint of that pipe rolled onto his left hand, causing a crushing-type facture to the middle and ring fingers of that appendage. Thereafter, unable to continue performing the duties required by his employment, plaintiff's relationship with I. E. Miller & Sons was terminated. Subsequently he was hired as a gin pole truck driver by another company, Pelican Truck Lines, Inc.

A superficial review of these facts might belie plaintiff's disability since he continued to work as an oilfield truck driver. However, a careful analysis reveals subtle but distinct variations in the two jobs.

The typical oilfield gin pole truck driver operates a large vehicle which is used in the assembly and disassembly of drilling rigs. In his employment with I. E. Miller & Sons plaintiff was required (as are most other oilfield truck drivers) to assist workers at the job site in the manipulation and transportation of pipe and other heavy objects. There was testimony to the effect that a gin pole truck driver's duties usually involve about ninety percent driving and winch operation and about ten percent heavy manual labor. Plaintiff's former job required him to drive a medium size gin pole truck devoid of many of the power assisted, labor-saving devices usually found on a larger vehicle.

In his present job with Pelican Truck Lines, Inc., plaintiff works under very specialized conditions. He drives the largest gin pole truck available, a 20-ton rig. This truck is replete with power assisted devices which aid the driver in his operation of the vehicle. The general consensus from the testimony is that a larger truck is more complicated to operate but less demanding physically. In addition, with Pelican, plaintiff is always provided with a fulltime helper and exempted from performing the normally required heavy labor associated with his employment position.

The secretary-treasurer of Pelican Truck Lines, Inc., Roy Windham, testified that plaintiff was hired under special circumstances, to-wit: that while he was a questionable employee as a normal oilfield truck driver, it was felt that his experience might compensate for his lack of physical ability to perform his tasks. Mr. Windham also expressed doubts that plaintiff possesses the capacity to perform any of the heavy labor normally associated with the job of oilfield truck driver.

Several of the doctors whose depositions were introduced at trial found that the plaintiff suffers from a palsy-type condition on his right side and that he relies more heavily upon his left arm and hand. Since his left hand sustained a crushingtype injury his capacity to use that dominant appendage has become highly diminished.

The trial judge found, and I concur, that in order to perform his previous functions fully as an ablebodied oilfield truck driver, the plaintiff would be forced to endure continuous pain and swelling in his left hand and fingers. A worker is not required to work in pain or in such diminished capacity that his activities will endanger himself and his fellow workers. Carroll v. Southern Casualty Insurance Company, 285 So.2d 370 (La.App. 3rd Cir. 1973), writ refused 288 So.2d 356; Chapman v. Travelers Insurance Company, 250 So.2d 248 (La.App. 3rd Cir. 1971). I find the situation presented in the instant case analogous to that of Chapman, supra. In Chapman, the plaintiff worked as a combination oilfield truck driver and swamper. His ankle was injured while he was engaged in loading segments of pipe on a job site. After his injury, plaintiff was unable to continue the work of oilfield truck driver and swamper, but found employment as a dump truck driver, which, while appearing to be similar employment, is in fact quite a different type of work. In finding the plaintiff totally and permanently disabled in Chapman, the court quoted Professor Malone's Louisiana Workmen's Compensation Law and Practice, Section 272, page 327, as follows:

"`A worker will be regarded as totally disabled if he is unable to do work reasonably of the same kind and character as that which his training, education, experience, and status in life qualify him to perform, in the customary way without any unusual difficulty or pain.'"

I find further similarity between the present litigation and the case of Futrell v. Hartford Accident and Indemnity Company, 276 So.2d 271 (La.1973). The plaintiff in Futrell was an automobile mechanic who suffered a ten percent functional impairment of the right extremity. The evidence indicated that the plaintiff was able to perform satisfactorily as an automobile mechanic but only with the assistance of numerous mechanical labor saving devices, the existence of which was not prevalent throughout the industry. As the Supreme Court stated in Futrell:

"The degree of Futrell's disability must not, however, be judged by placing him in ideal working conditions. The test must be whether the injury has substantially decreased Futrell's ability to compete with ablebodied mechanics in the general labor market." (Emphasis added).

I find that in the instant case, plaintiff has secured employment only because of the benevolent attitude and willingness to assume a risk by his present employer, Pelican Truck Lines, Inc. It appears that nowhere else in the industry would plaintiff be able to find the type of ideal working conditions afforded by said employer. The injury to his left hand has decreased his attractiveness to other oilfield trucking concerns. I find significance in the fact that, after his injury, plaintiff was refused work by J. C. Duke, a former employer, because that company had no need for a truck driver in his condition. I must conclude that plaintiff is currently employed only because of special considerations made by his present employer in providing him with a truck which is physically easy to operate, a helper, and an exemption from the type of duties normally required in the industry of one working in his capacity. Finding plaintiff unable to return to the type of work in which he was engaged at the time of his injury, I agree with the trial judge's ruling that he is totally and permanently disabled within the intendment of the workmen's compensation act.

CAUSATION

The plaintiff in a workmen's compensation suit need not prove the causal connection between disability and an employment related injury to an absolute certainty. It is sufficient that he demonstrate a reasonable probability that the disability is causally connected with the injury. Bryant v. Magnolia Garment Company, Inc., 307 So.2d 395 (La.App. 2nd Cir. 1975); Grigsby v. Argonaut Insurance Company, 297 So.2d 698 (La.App. 1st Cir. 1974); Chandler v. American & Foreign Insurance Company, 257 So.2d 825 (La.App. 3rd Cir. 1972); Norred v. Travelers Insurance Company, 236 So.2d 637 (La.App. 2nd Cir. 1970), writ denied 256 La. 842, 239 So.2d 354; Adams v. Home Indemnity Company, 180 So.2d 51 (La.App. 3rd Cir. 1965), writ refused 248 La. 697, 181 So.2d 398; Teekel v. Campbell Construction Company, Inc., 160 So.2d 447 (La.App. 2nd Cir. 1964).

In determining causal relation, great weight attaches to the fact of sudden change from a condition of health and ablebodiedness to one of disability immediately after the accident. Johnson v. Travelers Insurance Company, 284 So.2d 888 (La.1973); Matte v. Power Rig Drilling Company, Inc., 260 So.2d 19 (La.App. 3rd Cir. 1972), writ refused 261 La. 1048, 262 So.2d 37; Ardoin v. Houston Fire & Casualty Company, 235 So.2d 426 (La.App. 3rd Cir. 1970); Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969).

It is undisputed that plaintiff functioned adequately as an oilfield truck driver prior to his injury. Immediately after his accident he became incapacitated to such a degree that he was unable to perform any tasks related to the heavy labor aspect of his job. Therefore, I feel that the abovementioned presumption of causality should be applicable to this case.

Much ado is made about the fact that the medical testimony indicates that plaintiff suffered from an arthritic condition prevalent throughout his body. As previously mentioned, there is also evidence to the effect that plaintiff also suffered from a partially disabled right side, the result of a possible childhood polio condition. I willingly concede that these afflictions contributed to plaintiff's inability to function in his prior employment. However, the jurisprudence is well settled for the propositions that an employer takes an employee as he finds him, and that employee's disability is compensable even though caused in part by a contributing pre-existent condition or pre-disposition. See Carter v. Avondale Shipyards, Inc., 308 So.2d 472 (La.App. 4th Cir. 1975); Odom v. Kaiser Aluminum & Chemical Corporation, 282 So.2d 580 (La.App. 4th Cir. 1973); Jones v. Douglas Public Service, 264 So.2d 267 (La.App. 4th Cir. 1972); Johnson v. Employers Mutual Liability Insurance Company of Wisconsin, 250 So.2d 38 (La.App. 3rd Cir. 1971); and Parish v. Fidelity & Casualty Company of New York, 124 So.2d 234 (La.App. 2nd Cir. 1960), cert. denied January 9, 1961.

It is also immaterial whether an employee's continued disability directly results from an injury or from a condition resulting from an injury, or whether the injury was the sole cause, or merely a contributing cause. Norred v. Travelers Insurance Company, supra, Stovall v. S. Bender Iron and Supply Company, 152 So. 387 (La.App. 2nd Cir. 1934); Anderson v. Louisiana Oil Refining Corporation, 134 So. 343 (La.App. 2nd Cir. 1931); Taylor v. Southern Engineering Construction Company, 125 So. 877 (La.App. 2nd Cir. 1930).

The physicians who testified, mostly by deposition, were not altogether consistent in their findings. While it is true that most of them could find no neurological relationship between plaintiff's crushing injury to his hand and subsequent complaints of head, neck, and back pains, all the doctors recognized the seriousness of the hand injury.

Dr. C. W. Lowrey found a 15% disability of plaintiff's left hand and acknowledged the existence of a palsy-type condition on the right side. Dr. Don W. Irby found that the arthritis in plaintiff's injured fingers could have been traumatically induced. Dr. Ray E. King found a 5 to 10% disability of plaintiff's left hand, pain in the injured fingers due to residuals of contusions to the digital nerves of those fingers, and opined that a permanent condition in that hand existed, which would continue to cause plaintiff pain upon activity. Dr. D. M. Kingsley found a 5% disability of plaintiff's left hand. Dr. Bernard E. Doughty diagnosed plaintiff's problem as a permanent traumatic arthritic condition and felt that as a result, plaintiff was ill equipped to compete on the labor market. Finally, Dr. Billy Nesbitt was of the opinion that plaintiff would be unable to resume his work if his duties included heavy lifting. There is little doubt in my mind that plaintiff has established a causal link between the crushing injury which he received to the third and fourth fingers of his left hand and the subsequent permanent impairment of those appendages.

While it is true that if plaintiff's right side were healthy, and he did not suffer from an arthritic condition, the crushing injury would probably not be disabling, I feel that this latter injury was in effect, "the straw that broke the camel's back". Plaintiff was a risky employee at best, but the risk of his disability should be borne by the employer who hired him subject to those pre-existing deficiencies.

The finding of causation is a factual determination and within the province of the trial judge. In the case at hand the district judge had opportunity to review all of the abovementioned medical testimony and even conducted his own examination of the plaintiff's disabled hand. He stated, for the record:

"Show that when he was asked to close his fist, he was able to hold his fingers together but he was not able to touch his palm with the tips of his fingers. Show that when he was asked to place his hand flat on the table, he did so but claimed that he was unable to raise his fingers from the flat table top on which they were resting. Show also that his fingers were noticably discolored in the portion of his finger closest to his palm, when he was trying to raise his fingers. * * * * * * Well when he had it down, put it flat. It looks to me like it's darker from here back."

In his reasons for judgment the trial judge stated:

"The plaintiff claims he can work but a full day of heavy work causes swelling, loss of manual dexterity and strength and considerable pain that persists until he obtains adequate rest. His description of his own experiences fits in well with the medical testimony that reflects the condition of his hand varies from day to day and is dependent on the degree of work he has been doing. Plaintiff contends when he attempts any heavy work with his hand the swelling and pain occurs and reaches such proporations [sic] that he cannot perform the heavy work he once did without pain and endangering himself, equipment he might be using and customers' machinery he might be lifting. The Court finds him credible and believes he has made a courageous and good faith effort to rehabilitate himself."

Under the rules of appellate review set forth in the case of Canter v. Koehring Company, 283 So.2d 716 (La.1973), I feel that the evidence in this case "furnishes a reasonable factual basis for the trial court's finding", and I am unwilling to concur with my brothers of the majority in finding manifest error. I strongly disagree with the unwarranted intrusion by this court into the domain of the trier of fact, and I would uphold the trial judge's ruling on causation in the instant case.

PENALTIES AND ATTORNEY'S FEES

Finding the plaintiff totally and permanently disabled as a result of his accident while in the employ of I. E. Miller & Sons, I find it necessary to dispose of the issue of penalties and attorney's fees. The trial judge awarded statutory penalties and the amount of $3,500.00 as attorney's fees.

The defendant's agent-insurance adjuster testified that based upon a report by Doctor Kingsley and the knowledge that plaintiff was working as a truck driver for another company, he concluded that this claimant was no longer totally or partially disabled and terminated weekly benefits shortly after receipt of said report. An analysis of Doctor Kingsley's report is necessary in order to consider defendant's basis for terminating compensation benefits.

The report is dated June 1, 1970, but apparently it was not received by the defendant until approximately three weeks later.

In the portion of the report captioned "History" the Doctor states that:

"This 40-year old white male drove a truck for I. E. Miller & Son Trucking Company of Eunice, Louisiana, for about eight months prior to an accident on February 15, 1970. He was near Longville, Louisiana, loading drill pipe. Another worker dropped a piece of pipe across the patient's left hand."

Under the heading "X-rays" the Doctor stated:

"These x-rays show that the distal portion of the ungual tufts have been fractured and several fragments show in each of them."

Finally, under the paragraph entitled "Remarks" the Doctor stated:

"In any event, at the present time, there is still noticeable stiffness in the ring and middle fingers of the left hand and there is x-ray evidence of injury to the ungual tufts . . . . the findings on this date are compatable only with a crushing type of injury leaving some residual stiffness. I see no reason why this patient should not be able to drive a truck. It is possible the stiffness will persist. However, only use of the fingers can determine this point. The patient was therefore told to use his hand. I shall be glad to see him and check on his progress in several weeks to see whether any other opinion is indicated."

I hardly find this physician's report to be a reasonable basis for the conclusion that the plaintiff was no longer disabled from returning to his previous employment. As the report stated in its very first sentence, the doctor considered the plaintiff to be a truck driver but recognized the fact that he was injured while loading drill pipe. However, the doctor later remarked that he saw "no reason why this patient should not be able to drive a truck". The defendant further relied upon a written statement taken by its insurance adjuster in which plaintiff stated that he worked strictly as a truck driver but then later fully described the events surrounding his injury and the activity in which he was engaged at the time of the accident. It is clear from both the doctor's report and the statement of Mr. Lucas that his job entailed more than merely the act of driving a truck. I also find that Doctor Kingsley's report indicates a residual stiffness and the existence of several bone fragments in the injured fingers. This evidence is somewhat inconsistent with the doctor's conclusion that Mr. Lucas could return to his work as a truck driver. I feel that under these circumstances it was incumbent upon the defendant insurer to make further investigation to determine the exact nature of plaintiff's work and his ability to return to and function in that activity. See Trahan v. Rockwood Insurance Company, 284 So.2d 659 (La.App. 3rd Cir. 1973).

I also question defendant's interpretation of Doctor Kingsley's report in concluding that Mr. Lucas was not at least entitled to some compensation for partial disability benefits at that time. The report is very clear that there was a residual stiffness in the fingers and points to the existence of some bone fragments. See Fruge v. Pacific Employers Insurance Company, 226 La. 530, 76 So.2d 719 (La.1954); Breen v. Bituminous Casualty Company, 249 So.2d 338 (La.App. 4th Cir. 1971); Parish v. Standard Accident Insurance Company, 158 So.2d 892 (La.App. 3rd Cir. 1963).

The trial judge found that the defendant's:

". . . election to terminate benefits after payment of merely a portion of what was due reflects the disregard for the obligation of the employer insured. The overall attitude reflects carelessness or callousness in handling of claims that violate the spirit of the act and anticipate good faith action by an employer or insurer and can be equated under the terms of La.R.S. 1201.2 [sic, 22:658] to a termination that is arbitrary or without probable cause."

I agree with the trial judge's finding that the defendant insurer failed in its duty to ascertain the full nature of plaintiff's injury and its effect upon his ability to return to the type of work in which he was engaged at the time of his injury. Thus, I find no manifest error in the trial judge's ruling that plaintiff's compensation benefits were terminated arbitrarily and without probable cause, thereby entitling him to statutory penalties and the attorney fee award.

For the above and foregoing reasons I would affirm the judgment of the district court in all respects.


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