
    Virgil MATHERNE v. AVONDALE SHIPYARDS, INC.
    No. 5825.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 28, 1974.
    On Rehearing Sept. 10, 1974.
    Writ Refused Nov. 15, 1974.
    Keiler & Buckley, Sam O. Buckley, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter,^ Poitevent, Carrere & Denegre, Donald O. Collins, New Orleans, for defendant-appellee.
    Before LEMMON, J., and FEDOROFF and GAUTHIER, JJ. Pro Tem.
   GERALD P. FEDOROFF, Judge Pro Tem.

Plaintiff appeals from a judgment dismissing his claim for Workmen’s Compensation benefits based on total and permanent disability.

On December 15, 1964, plaintiff, working as a sheet metal helper at Avondale Shipyards, Inc., caught his right foot in a roller. He was treated first by Dr. James Le Noir, an orthopedist, who found a severe long laceration along the medial side of the foot, extending from the os calcis to the head of the first metatarsal bone; avulsion of the skin of the entire sole of the foot, extending laterally away from the laceration; a deep laceration in the web-space between the great and second toe; extension of the fourth and fifth toes; and multiple fractures of the toes. On the day of the accident, the foot was cleansed, sutured and immobilized in a cast. Reduction of the fractures was not necessary. Further debridement was performed as dead tissue could be identified.

On January 27, 1965, Dr. George Hoffman, a plastic surgeon, performed further debridement, and three days later he covered the damaged sole of the foot with a split thickness graft, taken from plaintiff’s lower abdomen. Plaintiff did well following surgery, and was discharged from the hospital on February 13, 1965. On April 29, 1965, Dr. Le Noir fitted him with a molded plastic inner sole to distribute weight evenly. On June 1, 1965 he attempted to return to light work, but had to stop after 5 hours because of pain in his foot. He again sought medical attention and returned to light work on June 7, 1965.

On June 23, 1965 plaintiff returned to Dr. Hoffman, who found that the graft on the ball of the foot had broken down. When plaintiff avoided weight bearing upon the doctor’s advice, the breakdown healed, and plaintiff returned to work on July 11, 1966. He returned again to Dr. Hoffman on September 21, 1966 with a recurrence of the breakdown. On October 4, 1966, Dr. Hoffman applied a full thickness graft to the sole of plaintiff’s right foot. The doctor reported “all of his grafts took 100%,” and discharged plaintiff on October 22, 1966. Plaintiff then returned to full employment on December 7, 1966.

Plaintiff sought no further medical attention until November, 1968, when he returned to Dr. Hoffman, complaining of a small area of excoriation, which healed in two weeks. Dr. Hoffman then discharged him, advising him to cleanse his foot, change socks and use Lanolin cream at his lunch break.

Both Dr. Le Noir and Dr. Hoffman felt that as of December 7, 1966, the plaintiff could perform all the duties required of his employment, and neither assigned any percentage of permanent disability.

During the period between plaintiff’s return to light duties in June, 1965 and his discharge to full employment in December, 1966, plaintiff worked intermittently, generally performing lighter work than he had done before the accident. ' He was paid workmen’s compensation during those periods he did not work in the total amount of $1,580.00.

After December 7, 1966, plaintiff fully performed his regular duties in the sheet metal shop without substantial difficulty. In early 1967, he was promoted to third-class mechanic. By the time he voluntarily terminated his employment in 1971 (apparently to follow his wife and family, who had moved to Mississippi), he had been promoted twice more and had attained the classification of first-class mechanic. His superintendent and several co-workers testified that plaintiff performed well all the duties required of him. In fact, the record establishes that after his second skin graft had healed, plaintiff played volley ball on his lunch break three or four days a week.

Since his relocation in Mississippi, plaintiff has operated a milk delivery route.

To establish his claimed disability, plaintiff relies entirely on the opinion of Dr. Blaise Salatich, who examined him once, on November 11, 1970. Dr. Salatich viewed the injury as a permanent one which would interfere significantly with occupational endeavors and would possibly require further surgical intervention.

The trial judge assigned “very little weight” to Dr. Salatich’s opinion. In light of the lay testimony and plaintiff’s work record following his eventual return to full employment, and of the contrary opinions of the two treating specialists, we cannot conclude the trial judge committed manifest error in resolving the conflict in medical opinions.

We further agree that plaintiff has failed to prove any permanent partial disability in an ascertainable percentage. In fact, the record affirmatively establishes that plaintiff had recovered from his injury without disability by December 7, 1966.

Finally, as to credit for those periods before December 7, 1966, during which plaintiff was not paid compensation, the trial court held plaintiff was paid unearned wages in lieu of compensation. While undoubtedly plaintiff was performing light duties during such periods, the record does not support the conclusion that the wages were not fully earned. To the contrary, it appears that plaintiff was performing duties regularly performed by Avondale employees working in the same job classification that plaintiff then occupied and earning the same rate of pay.

We conclude that plaintiff’s wages were earned during the period between June 1, 1965 and December 7, 1966, and that Avondale is not entitled to a credit for those wages against compensation due during the period of plaintiff’s temporary disability. Lindsey v. Continental Casualty Co., 242 La. 694, 138 So.2d 543 (1962); Madison v. American Sugar Refining Company, 243 La. 408, 144 So.2d 377 (1962); 2 Larson, The Law of Workmen’s Compensation, § 57.42 (1970).

During the period of temporary disability from December 15, 1964 to December 7, 1966, or 103 weeks, plaintiff was entitled to benefits totalling $3,605.00, and Avon-dale is entitled to a credit of $1,580.79 for compensation paid during this period.

For the foregoing reasons, the judgment of the district court is reversed, and it is now ordered that there be judgment in favor of plaintiff and against defendant in the sum of $2,024.21, with legal interest from the due date of each weekly compensation benefit payment until paid, and all court costs.

Reversed and rendered.

ON REHEARING

We granted a rehearing, limited to the issue of credit for wages paid allegedly in lieu of compensation. We interpret Lindsey v. Continental Casualty Company, supra, and Madison v. American Sugar Refining Company, supra, to require merely a determination of whether wages paid were substantially earned. The question viewed in reverse is whether the employer received substantial value for the wages paid.

While on “light duty,” plaintiff performed some of the duties customarily assigned to those who occupied his job classification, but was unable to perform many of the heavier tasks which usually fell to a sheet metal helper. Defendant argues that since a substantial amount of the duties of a sheet metal employee were not performed by plaintiff, the conclusion follows that the wages of a sheet metal helper were not substantially earned.

While we agree that plaintiff was unable to perform some of the aspects of the duties which fell within his job classification, the record established that he accomplished a full day’s work in performing those duties within that classification that he was capable of performing. His efforts fulfilled a labor requirement of the employer, who received substantial value therefrom.

We do not interpret Lindsey and Madison to require that the employee perform all the duties formerly performed by him or normally required of persons in his category. A reexamination of the record convinces us that plaintiff performed substantial services for his wages, and Avon-dale is not entitled to credit against its compensation liability.

Accordingly, our original majority opinion and decree herein are reinstated as the final judgment of this court.

Original decree reinstated.

LEMMON, Judge

(dissenting).

In my opinion the issue of credit for unearned wages paid in lieu of compensation is not pertinent in cases of temporary disability.

The purpose of workmen’s compensation is to provide the victim of an industrial accident with a minimum subsistence allowance during the period of disability by paying part of his lost wages for a limited period.

In the typical situation the employee is paid compensation benefits from the date of his injury to the date of his return to work, at which time he generally begins receiving full wages, even if he only performs light duties when he first returns. Thereafter, the employee typically continues on the job, and no further compensation is due or sought.

The present problem arises in those cases in which the employee is initially retained, but eventually leaves the job, whether for recurrent disability, for voluntary or involuntary termination, or for whatever reason.

If the retained employee is ultimately determined to be permanently disabled as a result of the original accident, then the employer is liable for compensation benefits for a present maximum of 500 weeks. The issue arises as to credit against this total liability for the weeks that the employer paid full wages. If those wages were unearned, then it is presumed the employer intended the wages in lieu of compensation and the credit is granted. If the wages were earned, however, then the employer’s liability for a total of 500 weeks of compensation remains undiminished, inasmuch as the employer received substantial value for the services by having a labor requirement fulfilled. In either case the employee does not receive compensation for the entire period of his disability, because of the statutory maximum.

These considerations do not apply in the case of temporary disability. In the present case and other cases of temporary disability, the retained employee receives each and every week during the entire period of disability either (1) full wages or (2) partial wages in the form of compensation. The purpose of the compensation act — to provide minimum subsistence during disability by payment of partial wages— is thus fulfilled.

In my opinion no compensation is due by the employer during those weeks in which the retained employee receives full wages (earned or unearned), because the legislatively contemplated need for compensation does not occur. Since no compensation is due, there is no need to consider the question of credit in cases of temporary disability where the employee eventually attains full earning capacity. This is in contrast to the case of permanent disability, where the number of weeks in which the employee (eventually determined to be permanently disabled) was paid full wages may or may not be included in the total of 500 weeks of compensation liability imposed on the employer. The issue of credit properly arises in such a case, since voluntary payments “not due and payable when made, may, subject to the approval of the court, be deducted from the payments to be made as compensation.” R.S. 23:1206. The voluntariness of the payments is then the critical issue, and only unearned wage payments may be deducted from total compensation liability.

In my opinion the employer in the present case has satisfied his compensation liability by paying full wages or partial wages (compensation) every week until plaintiff attained full earning capacity. Our original judgment should be reversed. 
      
      . Plaintiff did consult the plant first aid station on occasions, claimed by him to be as frequent as twice a month. Significantly, Avondale’s records indicated he had gone to the first aid station ten times in 1968 (three times for the foot), five times in 1969 (one time for the foot), twenty times in 1970 (four times for the foot), and sixteen times in 1971 (three times for the foot).
     
      
      . In an effort to facilitate plaintiff’s rehabilitation, Avondale commendably assigned plaintiff only the lighter of the duties within his work classification. This resulted, however, in other workers within the same classification having to perform more of the heavier duties, rather than in plaintiff being paid unearned wages in lieu of compensation.
     
      
      . Limiting credit to payment of unearned wages solves a policy dilemma. The compensation concept favors retention and rehabilitation of injured employees, which is encouraged by allowing the credit; on the other hand, the allowance of credit would effectively reduce fully earned wages, disregard the employee’s productivity, and grant a windfall to an employer who both has his labor requirement fulfilled and his compensation liability reduced.
     