
    Andrew D. LAMBERT v. AMERICAN POLICYHOLDERS INS. CO.
    No. 4556.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1958.
    Selby & Lawes, Lake Charles, for appellant.
    King, Anderson & Swift, R. W. Farrar, Jr., Lake Charles, for appellee.
   LOTTINGER, Judge.

This is a compensation suit. The plaintiff has devolutively appealed from a judgment against his employer’s compensation insurer insofar as it limits his compensation to a period ending four months after the date of the trial in the Lower Court. The date of trial was on April 30, 19S7 and the Lower Court awarded compensation from the date of the accident December 14, 1956, to August 30, 1957.

There is no dispute that the plaintiff was totally disabled at the date of trial as the result of a residual back injury and that this total disability is not of a permanent nature.

The only question for our determination is the extent of this plaintiff’s disability and whether or not the Lower Court was in error in limiting the judgment to four months following the date of the trial. Plaintiff contends that the judgment should have provided for 300 weeks under LSA-R.S. 23:1221(1), which provides that “for injury producing temporary total disability to do work of any reasonable character,” compensation shall be allowed “during the period of disability, not beyond three hundred weeks” whereas the defendant contends the judgment is correct under LSA-R.S. 23:1222, which provides: “For injury producing temporary total or temporary partial disability the court may, in its discretion, award compensation for a fixed number of weeks to be based upon the probable duration of such disability.”

The evidence indicates that the plaintiff . while working as a carpenter slipped off of a’ saw horse on which he was standing and injured his back. It appears that the disability is more of a muscle of ligament injury than anything else. The trial was held about four months after the accident and at that time the medical testimony or prognosis as to future disability was as follows: (1) Dr. C. V. Hatchette, an orthopedic specialist testifying on behalf of defendant, two months; (2) Dr. Norman P. Morin, an orthopedic specialist testifying on behalf of plaintiff, about three to four months under ideal circumstances including hospitalization and supervised daily physiotherapy and treatment, but a longer period lasting six to eight months under normal conditions; (3) Dr. Charles L. Fellows, a general practitioner and plaintiff’s family doctor, at least six to eight months before plaintiff could engage in light lifting and longer for him to engage in the heavy lifting; and (4) Dr. George B. Briel, an orthopedic specialist testifying on behalf of plaintiff, two or three months before plaintiff would have the power to do a full days’ work.

Now with these facts before him we are of the opinion that the Lower Court was justified in making an award under LSA-R.S. 23:1222 but we are of the further opinion for the reasons hereinafter given and from the medical testimony as hereinabove outlined that the award should have been for a period ending eight months after the date of the trial below or to December 30, 1957, instead of the four months to August 30, 1957, as provided by the Lower Court. It appears that the Lower Court awarded compensation under LSA-R.S. 23:1222 after arriving at an average of the prognostication of the medical testimony. We are of the opinion this was an error. The medical testimony reasonably indicates that the maximum period of probable duration of disability 'is 'at least eight months more after trial [and that is giving more weight and consideration to the testimony of the specialist over the general practitioner. That is One '.of thé reasons the award should have been for eight additional months instead of four months as awarded.

Plaintiff contends that in the case at bar he should be awarded compensation during the period of disability, not beyond three hundred weeks rather than a limited award as the defendant is fully protected under LSA-R.S. 23:1331 to reopen the case at any time six months after the rendition of the judgment of compensation for a modification thereof. Furthermore if it is on a limited basis his case might become subject to the interpretation of LSA-R.S. 23:1331 as placed by the Supreme Court in the case of Lacy v. Employers Mutual Liability Ins. Co. of Wis., 233 La. 712, 98 So.2d 162, 165, wherein they said: “(1) that the award of compensation in the first instance is a final judgment fixing the extent and duration of disability for the period stated therein subject, however, to modification, after six months have elapsed and compensation is still due, upon allegations by either plaintiff or defendant that the disability has increased or decreased; (2) that the award in the first instance is final for a period of six months thereafter and may not be reopened before the expiration of that time and (3) that, in cases where the judgment of the trial court ‘fixes with definiteness the duration of the employee’s incapacity to work to be a period of less than six months from the date of its rendition, such a judgment is not 'within the purview of R.S. 23:1331 and may not be modified under allegations that the incapacity resulting from the accident has since increased or diminished.” If we were to follow plaintiff’s suggestion and award not more than 300 weeks during the period of disability instead of a limited award in cases like the case at bar where the probable duration of the disability is reasonably indicated we would be reading out of the statute altogether the Legislative provision of LSA-R.S. 23:1222.

This section has been considered and . applied several times by the Appellate Courts of this state. Glover v. Washington-Youree Hotel Co., Inc., 13 La.App. 112, 127 So. 18; Wilson v. Wright & Lopez, La.App., 11 So.2d 22; Delahoussaye v. D. M. Glaser & Co., Inc., La.App., 185 So. 644; Newman v. Zurich Gen. Accident & Liability Ins. Co., La.App., 87 So.2d 230. Plaintiff has cited us several cases wherein we have refused to apply this section but applied LSA-R.S. 23:1221 (1) instead. Those cases are not apposite here. In those cases the Court found as a fact that the duration of the disability was pure speculation and that the probable duration could not be reasonably ascertained; or that there was wide discrepancy and variance in the medical testimony; or that the doctors had made many mistakes in their many examinations as to the prognostication of the disability of the claimant. We do not find that situation here however.

In the case of Newman v. Zurich, supra [87 So.2d 233], Judge Ellis of this Court again spelled out our interpretation of LSA-R.S. 23:1222 in the following language :

“This court could not render inoperative LSA-R.S. 23:1222 as such action would only be in the power of the Legislature. Further, this court has consistently recognized the provisions of LSA-R.S. 23 :1222 and specifically approved and interpreted this act. in the Delahoussaye case, supra, in the following language.
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“ ‘We take that provision to mean that where the court can reasonably' satisfy itself of the probable period of time during which the disability will continue, whether total or partial, it •can exercise its discretion as did the lower court in this case, in awarding' compensation for a specified number of weeks.’
* * * * * *
“It might be well at this point to reach a definite understanding as the meaning of the word ‘probable’ as .it refers to the duration .of plaintiff’s disability which will be dependent upon the medical testimony in this case.
“We find in Black’s Law Dictionary that the word ‘probable’ has been interpreted to mean the following:
“ ‘Having the appearance of truth.; having the character of probability; appearing to be founded in reason or experience. State v. Thiele, 119 Iowa 659, 94 N.W. 256. Having more evi-' dence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt; likely. Barrett v. Green River & Rock Springs Live Stock Co., 28 Wyo. 379, 205 P. 742, 743. Apparently true, yet possibly false. Spadra Creek Coal Co. v. Harger, 130 Ark. 374, 197 S.W. 705.’
“We thus see that the word ‘probable’ does not mean that all doubt is eliminated. An opinion upon any future happening or event is, of course, subject to doubt but may be probable if founded in reason or experience or supported by evidence or apparently true. * * *
“We interpret Dr: Briel’s testimony to mean that had the plaintiff followed the prescribed exercises when he first examined him it was his opin-. ion that he would have been well within two months, but it is clear from the testimony that plaintiff did not follow the exercises as he stated they caused him pain and he had developed a case of influenza. Bearing in mind the meaning of the word ‘probable,’ all of Dr. Briel’s testimony, as well as the testimony of the other doctors ■in this case, goes into detail insofar as giving their reasons for the conclusion upon which the Trial Judge based his award of five months additional compensation. We do not interpret .their testimony as being any more speculative than any event which logic and reason tells us will occur but which is, of course, not certain to occur.”

On rehearing this case was remanded to the Lower Court for production of additional evidence regarding disability but this did not in any way affect our ruling in the original hearing as hereinabove set forth.

Now after thoroughly analyzing the facts in this case and the law and jurisprudence above cited, we are of the opinion that the medical testimony reasonably indicates that the maximum period of probable duration of the disability is eight months more after trial instead of four months as granted. We appreciate the fact there is a little variance in' the prognosis of the disability as given by the doctors but we can hardly visualize a situation where three or four doctors will all give the same number of weeks or months for the duration of disability especially in a back injury case. So for that reason we do not believe the variance here to be material or so much so as to justify an award under LSA-R.S. 23:1221(1). In spite of this small variance we are still of the opinion that the medical testimony reasonably indicates that the maximum period of probable duration of plaintiff’s disability is eight months more from the trial date or to December 30, 1957.

Therefore for the above and foregoing reasons the judgment of the Lower Court is amended by awarding compensation from December 14, 1956, to December 30, 1957, and, since that date has expired, exercising our discretion under LSA-R.S. 23 :1222, we reserve the right to both plaintiff and defendant to reopen this case even though the six-month period has not expired.

Judgment amended and as amended affirmed.

TATE, Judge

(concurring in part; dissenting in part).

The writer concurs with the majority opinion insofar as it awarded compensation to the disabled employee at least to the maximum duration of eight months as shown by the physicians’ present estimates. But I dissent insofar as the award was made under LSA-R.S. 23:1222 and not under instead LSA-R.S. 23:1221(1), which latter section provides that for “injury producing temporary total disability” compensation shall be allowed “during the period of disability, not beyond three hundred weeks”.

In my opinion the present decision is contrary to the recent decisions of this court in Newman v. Zurich Gen. Acc. & Liability Ins. Co., La.App., 87 So.2d 230, Ebarb v. Southern Industries Co., La.App., 78 So.2d 553, and Whiddon v. Concrete Pipe Products Co., La.App., 78 So.2d 439, which I think can be summarized as holding that doctor’s estimates of future disability cannot fix “probable duration” of disability so as to justify a limited award under LSA-R.S. 23:1222 when by the nature of the injury such estimates vary widely from doctor to doctor or from time to time.

In the present case, for instance, I do not think that the two doctors’ estimates of eight months future disability indicate the “probable duration” thereof any more than do the two estimates of two to three months; nor does a consensus of these estimates indicate a “probable duration” of an average of four months. Each of such varying estimates indicates merely a possible duration according to the guess of that particular doctor; neither individually nor in conflicting ensemble do they afford a substantial indication of any specific probable duration. I therefore do not think this case admits of the application of LSA-R.S. 23:1222 permitting a court within its discretion to award compensation during the probable duration of disability.

Recognizing the sincere and humane effort of the majority to avoid injustice to this particular employee by awarding compensation during the maximum according to present medical estimates, I nevertheless think the majority opinion deprives this injured employee of his right to be awarded compensation under LSA-R.S. 23:1221(1). The Legislature did not by that section provide that in the event of temporary total disability awards will be made for the probable duration of disability not to exceed 300 weeks; its provision is that in such case compensation be awarded during disability, not to exceed 300 weeks.

Taking into account the ability of the employer to secure a modification of the award any time six months after rendition of the initial judgment, LSA-R.S. 23:1331, I think the legislative intent manifested is that the decree for temporary total disability of longer than six months duration should be to award compensation under LSA-R.S. 23:1221(1) during disability, not to exceed 300 weeks.

I think that this interpretation is borne out by the legislative history of the compensation act.

Provisions for the payment of compensation, during temporary total disability, not to exceed 300 weeks, have been found in each version of the compensation act from Act 20 of 1914, see annotation LSA-R.S. 23:1221; but the provision permitting a court to award compensation in case of temporary total disability limited to the “probable duration” thereof was not added until Act 85 of 1926, Section 8(8), see annotation, LSA-R.S. 23:1222. This amendment was apparently in response to the holding in Rogers v. Thermatomic Carbon Co., 1924, 157 La. 193, 102 So. 304, that compensation judgments could not be modified in less than the statutory year (now six months, LSA-R.S. 23:1331) following rendition, and .the defendant’s argument therein that the compensation act was therefore unconstitutional because there was no legislative authorization other than for an award during disability, not to exceed the statutory maximum, and thus there was no legislative authorization for an award of “less than the period during which the modification of the judgment is prohibited,” 157 La. 198, 102 So. 306, even though the medical evidence would indicate the probable duration of disability to be less.

The apparent intention of the legislature, therefore, in permitting awards to be limited to the “probable duration” of disability was not to repeal the general provision permitting awards of compensation during temporary total disability, not to exceed 300 weeks (i. e., the consistently re-enacted provision now found in our statute as LSA-R.S. 23:1221(1).) It was simply to permit a limited award in cases where the medical evidence indicated disability would definitely cease within the six month period during which the judgment could not be modified.

If this were not the correct construction, contrary to the intendment of the act that the employee should receive compensation during actual disability and without the necessity for detailed and dilatory judicial administration and supervision, the disabled employee is potentially subjected to constant interruptions in the flow of his compensation while he pursues his appellate remedies to secure a revision and/or remand of the judgment which limits his compensation, more or less arbitrarily, to some figure based upon medical speculation.

Especially in a case like the present the appropriate decree should be to award compensation during disability, not to exceed 300 weeks. This suit was tried on April 30, about 4months after the initial accident, during which time not one cent of compensation had been paid. It was at first feared that plaintiff’s symptons indicated a ruptured disc, and in fact he willingly underwent a myelogram. Cases in our jurisprudence are legion concerning back injuries which initially were apparently slight but which over the course of time manifested a prolonged and more serious disability. Cf. the Newman case cited above; Wallace v. Remington Rand, 229 La. 651, 86 So.2d 522, Bigham v. Swift & Co., 229 La. 341, 86 So.2d 59; Johnson v. Cabot Carbon Company, 227 La. 941, 81 So.2d 2; Mottet v. Libby-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218; Michel v. Maryland Cas. Co., La.App. 1 Cir., 81 So.2d 36.

Here is the situation before us: the employee is admittedly totally disabled at the time of the trial; he has been since the accident, despite which he has not been paid compensation; he will be disabled in the future, for a period which may even by the notoriously fallible medical estimates extend at least to eight months; and yet the employer’s insurer, which should have been paying compensation without court compulsion during all this admitted disability and until the disability terminates, is able to secure a limited judgment of compensation, which plaintiff, is unable to execute without losing his right to secure a revision thereof should his disibility persist, see Lacy v. Employers Mut. Liability Ins. Co., 232 La. 712, 98 So.2d 112.

The general scheme of the compensation act is not only to assure periodic payments of compensation to an industrially disabled employee, but also to assure them to him with a minimum of interruption and judicial delays. And when we find an employee who is admittedly totally disabled at the time of trial, and who- may continue to be so for six months or more in the future, it is speculation to attempt to guess whether he will recover in eight months or nine months or ten months or in any number of months. The limited decree further puts upon the admittedly disabled employee the burden of .expense and effort in proving a continuation of his disability, when in the first place he should already have been receiving compensation without judicial intervention.

Unlike the judicial function of assessing precuniary damages for personal injuries in tort suits, which must of necessity be somewhat arbitrary and inexact in nature, an award of workmen’s compensation to any employee disabled through an industrial accident is a judicial attempt to award him compensation, within the statutory limits, for each week that he is actually disabled. It is thus not the function of the courts to guess at the length of the employee’s disability, but rather to award compensation during actual disability: for if during a period of work-produced disability the employee is judicially barred from receiving compensation when he has timely brought suit therefor, the legislative and social aim of the compensation act of providing income .during disability to industrially-disabled employees is thwarted.

For the above and foregoing reasons, I respectfully dissent from the majority judgment insofar as it did not award compensation during plaintiff’s disability, not to exceed 300 weeks and insofar as it awarded a fixed number of weeks compensation for future disability grounded upon the varying and contradictory guesses of the doctors. 
      
      . Cf. Mr. Justice Odom’s comment concerning tlie question in O’Donnell v. Fortuna Oil Co., 2 Cir., 2 La.App. 462, at page 464: “The greatest experts in the land cannot tell how long it will take a wound to heal. * * * An expert might be able to guess more accurately than a layman, but his opinion would be a guess after all. * * * The court must not speculate as to how long a person will be disabled.”
     
      
      . The alleged reason for this refusal was a denial the accident had occurred. The first reason for the denial was that two co-workmen on the job at the time had not “seen” the accident. The evidence showed that one of them, working around the corner from plaintiff, heard plaintiff. stop hammering and went to see what had happened and met plaintiff, who said he had just fallen and hurt his back. The other co-worker had gone for some nails and when he returned, within 15 minutes of the accident, was informed that plaintiff had fallen and saw that the back of plaintiff’s clothes was all muddy. The other reason for denying an accident had occurred, that plaintiff did not report his injury for about a month, is equally without merit in view of the physicians’ uniform view that due to the nature of the injury it was reasonable for the employee to feel in the initial stages that the disability might pass off without medical intervention.
     