
    Giuseppi LOVISA v. EMPLOYERS INSURANCE OF WAUSAU and American Terrazzo and Tile Company, Inc.
    No. 8169.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    
      Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for plaintiff-appellee.
    Ronald L. Ronzello and Louis M. Kiefer, Jr., New Orleans, for defendants-appellants.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   LEMMON, Judge.

Plaintiff’s employer and its insurer have appealed from a judgment awarding plaintiff workmen’s compensation benefits for total and permanent disability. On appeal defendants question the sufficiency of the evidence of existence of a disabling condition and the award of penalties and attorney’s fees for arbitrary failure to pay benefits.

Plaintiff was a terrazzo mechanic employed by American Tile & Terrazzo Co. In addition to being an officer of the corporation and a shareholder, he was a working foreman who prior to the accident worked daily as a member of a terrazzo crew.

While working on a job in December, 1973, plaintiff sustained a left inguinal hernia which required surgical repair. The general surgeon who performed the January, 1974 surgery testified that the surgery was successful and that plaintiff expressed no complaints of pain during the two-month postoperative period before discharge.

Plaintiff returned with complaints of pain one year after the operation and again an additional four months later, but the doctor’s examination on both occasions revealed no evidence of recurrent hernia. The doctor did find marked tenderness in the area under the scar, and he expressed his belief that the pain was genuine and that plaintiff was not malingering, noting that plaintiff was a stoic individual who tolerated pain well. However, he had no opinion as to the cause of the pain, although he stated “my opinion was that it was hurting”. The only question and answer directly relating to the connection between the pain and the hernia surgery was the following:

“Q. Yes, sir. Now, does it happen in your experience following surgery that people will complain of pain that is not readily medically explainable:
“A. Occasionally, yes.”

Additional evidence consisted of extensive lay testimony concerning the duties of a terrazzo mechanic and the extent of plaintiff’s activities after the surgery. About 40% of a mechanic’s work involves spreading and smoothing terrazzo mix with a straight edge, which is 12 to 14 feet in length. The mix is prepared by helpers and poured onto the area which is being covered, whereupon the mechanic pushes or pulls the pile of mix with the straight edge in a stooping position. When a large area is being covered, the mechanic must spread large amounts of the fast-drying mix quickly. Besides spreading and leveling the mix with the straight edge, other duties of the mechanic include spreading and floating the cement underbedding, rolling the terrazzo mix with .100-pound and 200-pound rollers after seeding, and troweling the mix to a finish with a small trowel. Normally, the entire crew loads the truck with materials at the beginning of the day's activities, but helpers perform most of the carrying of materials during the course of the day.

One of American’s other terrazzo mechanics testified that plaintiff can no longer manage the straight edge alone, especially on jobs involving a large area, or lift heavy materials without complaints of pain. He noted that the difficulty in using the straight edge is the weight of the mix being spread.

• American’s manager testified that plaintiff can still mark and set strips and sprinkle to seed the floor after floating, but cannot do floating and use the straight edge except on small jobs. He affirmed that he would not hire a mechanic who could not operate the straight edge without restriction.

Two of American’s helpers testified that plaintiff can no longer do the heavy work he did before his injury and that he complained of stomach pain whenever he attempted strenuous duties.

Plaintiff testified that a mechanic pulls 100 to 150 pounds with the straight edge on normal jobs, that he can no longer do any but the smallest jobs and that he “suffers the consequences” when he does even these small jobs. He also stated that most of his present duties were supervisory.

The trial judge was apparently very impressed with the lay testimony, since he not only awarded benefits for total and permanent disability, but also imposed penalties and attorney’s fees. After reviewing the entire record, we conclude that the limited medical evidence and the extensive lay testimony support a conclusion that plaintiff was unable to perform a substantial portion of the duties required of his skilled trade without suffering substantial pain. Indeed, he doubtless would not still be employed by American except for the special consideration in assignment of duties because of his peculiar position with the company. Accordingly, we affirm the finding of total and permanent disability.

However, while the evidence in this record supports a finding of total and permanent disability, the trier of fact could reasonably have reached a different conclusion. Under those circumstances we cannot say that defendants were arbitrary or unreasonable in requiring a judicial determination of plaintiff’s evidence. We therefore set aside that part of the judgment which awarded penalties and attorney’s fees.

For these reasons the judgment of the trial court is amended to delete the award of penalties and attorney’s fees. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

STOULIG, J., concurs and assigns reasons.

STOULIG, Judge,

concurring.

I concur in the majority opinion affirming the trial court’s determination that the plaintiff is entitled to workmen’s compensation benefits for total and permanent disability and I am also in accord with the action of the majority in setting aside the award of penalties and attorney fees.

I have with reluctance concurred in the finding of the trial judge that plaintiff did bear the burden of proof necessary to sustain that he is totally and permanently disabled. I have done so solely because I am unable to conclude that as a matter of fact or law that in so doing the trial judge was manifestly erroneous. However, I candidly admit I would have reached a contrary result.

Accepting as true the testimony tendered on behalf of the plaintiff, the record reflects: (1) Mr. Lovisa can only perform 60 percent of the customary duties of a terrazzo floor mechanic; (2) he has been paid his full wages from the date of his hernia operation in 1973 through the date of the trial in 1976 and in all probability through the present date; (3) he received an increase in wages during each succeeding year during this period; and (4) according to its president, the employer would not hire a terrazzo mechanic with Mr. Lovisa’s disability.

From this evidence it is obvious that plaintiff because of his 40-percent disability is not actually earning the wages he is being paid and therefore he is being gratuitously paid wages in lieu of compensation benefits. In my opinion it is repugnant to the intent of the statute that an employer who retains at full salary a disabled employee who cannot perform the customary substantial functions of his employment must simultaneously pay in addition thereto weekly compensation benefits. Such an anomalous situation of an employee being paid full salary and at the same time receiving compensation benefits for his inability to perform the services for which he is being paid his full salary defeats the purpose of the act itself, which is to provide sustenance to an individual who can no longer reap the full benefits of his customary trade or profession because of his disability. The only alternative an employer would have to avoid double payment, i. e., unearned wages and compensation benefits, would be to discontinue his voluntary payment of unearned full wages, to the economic prejudice of the employee.

In my opinion the compensation statute contemplates that under the circumstances of this case a finding of total and permanent disability be made and the employee awarded 500 weeks of compensation benefits; however, for each and every week that he is continued in his employment at full salary, his employer should be given credit for a gratuitous payment of unearned wages in lieu of compensation. Since the appellant did not seek this credit either at the trial or appellate level, this court should not sua sponte invoke this right which can be waived by the employer.  