author: SEXTON, Judge.

text:
    STATE of Louisiana, In the INTEREST OF C.P., et al., Plaintiff-Appellee. STATE of Louisiana In the INTEREST OF H.P., Plaintiff-Appellee.
    Nos. 16751-CAJ, 16752-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Richard Ducote, Sp. Asst. Dist. Atty., New Orleans, for State of La.-appellee.
    Percy A. Ford, Jr., West Monroe, for minor childreri-appellees.
    Charles A. Traylor, III, West Monroe, for father-appellant.
    Nancy F. Gilliland, Monroe, for mother-appellant.
    Before JASPER E. JONES and SEXTON, JJ., and PRICE, J. (Pro Tempore).
   SEXTON, Judge.

The natural father and natural mother appeal two separate judgments terminating their parental rights as to their four minor children, C.P., M.P., J.P. and H.P. For the reasons that follow, we affirm.

On October 7, 1983, the state filed a petition to terminate the parental rights of the parents as to their four minor children. The petition alleged that the children were placed in state custody due to their abuse and neglect in that the family had no home, no food, and no suitable clothing for the children. It also stated that the child, M.P., had multiple cigarette burns on his chest, legs and arms which precipitated his being placed in foster care at the age of two years. On April 11, 1984, the trial court signed two separate judgments, the first of which terminated parental rights as to C.P., M.P. and J.P., and the second terminating parental rights as to H.P. The parents have appealed these judgments, urging five assignments of error.

In these proceedings, the state seeks to terminate parental rights pursuant to the provisions of LSA-R.S. 13:1601-1605, and specifically 13:1601 D, which reads in pertinent part:

§ 1601. Petitioning for the termination of parental rights
The court on its own motion may order that the district attorney petition, or the district attorney in his discretion may petition, for the termination of parental rights of the parent or parents of an abused, neglected, or other child within a juvenile court’s jurisdiction, when the grounds set forth in the petition meet all the conditions of Subsection A, B, C, D, E, or F of this Section. The district attorney may appoint any attorney representing the Department of Health and Human Resources as a special assistant district attorney for the purpose of prosecuting any such case, regardless of the domicile of said special assistant.
D. (1) The child has been in the custody of a child welfare department or other person, pursuant to a judicial order, for a period of at least one year.
(2) The child was removed from the custody of the parents by judicial order due to the parent’s abuse or neglect of the child.
(3) The parent is unfit to retain parental control and there is no reasonable expectation of reformation on the part of the parent or parents.
(4) The child is an abused or neglected child, the Department of Health and Human Resources has made every reasonable effort under the circumstances to reunite the child with his parents, and the department recommends that it would not be in the best interest of the child to be reunited with his parents.

■ Appellants argue that LSA-R.S. 13:1601 D as applied to them is unconstitutional. They contend that the termination of their parental rights under this section in reality punishes them for their alcoholism, and as such is excessive or cruel and unusual punishment prohibited by both the state and federal constitutions. In support of their argument, appellants cite Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), in which the United States Supreme Court struck down as unconstitutional a criminal statute making it a misdemeanor to be a narcotics addict.

The United States Supreme Court has consistently refused to equate termination of parental rights litigation with criminal proceedings. In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the court refused to provide indigent parents with an absolute right to court appointed counsel, as mandated in criminal cases. In Santo-sky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Supreme Court found that a legislative body might well conclude that the “beyond a reasonable doubt” standard of proof mandated in criminal cases would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption. In Lehman v. Lycoming County Children’s Services, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982), the court denied federal habeas corpus collateral review, which would be available to state convicts, to a parent whose rights were terminated by a state court.

Recently, in State in the Interest of A.E., 448 So.2d 183 (La.App. 4th Cir.1984), writ denied, 449 So.2d 1026 (La.1984), counsel for a comatose mother argued that due process required that she be afforded the same protection as a criminal defendant similarly situated, i.e., the proceedings to terminate her parental rights must be stopped until her competence was regained. Noting the similarity between the proceedings because of the gravity of the interest affected, the court nevertheless distinguished the litigation from criminal proceedings:

There are two private interests to be considered in any parental rights termination case: those of the parents and those of the children. In Lassiter, the U.S. Supreme Court declared it “clear beyond the need for multiple citation” that parental rights constitute an interest “far more precious than any property right” and that a termination of parental rights is a “unique kind of deprivation.” Lassiter, 452 U.S. at 27, 101 S.Ct. at 2159. The potential loss to the parent is grievous, perhaps more so than incarceration. State in re Howard, 382 So.2d 194, 198 (La.App. 2nd Cir.1980).
On the other hand, children have a profound interest, often at odds with those of a parent, an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long term, continuous relationships in contrast to the lingering uncertainty of foster care. Lehman v. Lycoming County Social Services, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982).
* * * * * *
In criminal proceedings, there is only one private interest, those of the defendant. In these proceedings there are two, those of the mother and those of the children.

We therefore believe that the parents’ reliance on Robinson is misplaced. The present proceedings involve charges of conduct which may give rise to criminal prosecution. State in re Howard, 382 So.2d 194 (La.App. 2d Cir.1980). However, the instant proceedings were not initiated in an attempt to punish appellants for their status as alcohol abusers, but were instead a reasonable exercise of the state’s “parens patriae” interest in the welfare of these children. See LSA-R.S. 14:403 A.

Moreover, we note that the judgment terminating the parents’ rights was not based on the singular allegation of their alcoholism, but was based on a combination of conditions which lead the trial court to believe that termination of parental rights was, under these circumstances, warranted. Appellants claim that they were punished for their alcoholism, and that this punishment constituted excessive punishment is rejected.

Appellants also assail the constitutionality of LSA-R.S. 13:1601 on other grounds. They argue that the statute, in sub-section D, gives the Department of Health and Human Resources a role as a fact finder and judge in litigation to which it is a party and, consequently, denies the opposing parents’ due process of law. In a similar vein, appellants contend that this alleged adjudicative role statutorily bestowed on D.H.H.R. denies the parents access to the courts in contravention of Article 1, Section 22 of the Louisiana Constitution of 1974. Their arguments rest on the provisions of sub-section D which provides that an element of the state’s burden of proof for termination is the Department’s recommendation that being reunited with his parents is not in the child’s best interest.

This argument is, however, flawed. LSA-R.S. 13:1603 A provides in pertinent part:

§ 1603. Adjudication of termination
A. Whenever the court of proper jurisdiction finds that the allegations of Subsection A, B, C, D, E, or F of R.S. 13:1601 are proven true by the evidentia-ry standards set forth in this Section, it may order the termination of parental rights of the parent or parents against whom the allegations are proven.
* * * * * *
Under Subsection D of R.S. 13:1601, Paragraphs (1), (2), (3), and (4) must be proven by clear and convincing evidence.

This statute clearly vests the decision making power as to termination of the parental relationship with the court. Although it is true the state cannot meet its burden of proof under LSA-R.S. 13:1601 D if the Department recommends that the child be reunited with the parents, the opposite recommendation does not automatically result in termination of parental rights. The court, as fact finder and judge, must determine that each element of the state’s burden of proof has been discharged by competent evidence, the totality of which attains the requisite evidentiary standard. We therefore reject appellants’ constitutional attack upon LSA-R.S. 13:1601.

Appellants direct their next constitutional challenge to LSA-R.S. 13:1603. They contend that this statute does not comport with due process in that it fails to require the state to prove its case beyond a reasonable doubt. LSA-R.S. 13:1603 A requires that each of the four elements of LSA-R.S. 13:1601 D must be proven by clear* and convincing evidence.

The determination of what procedural safeguards are required by due process depends upon the nature of the proceeding and the nature of the right or interest protected by the proceeding. Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). The rights of parents to the companionship, care, custody and management of their children is a fundamental liberty interest warranting great deference and viligant protection under the law. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Consequently, these proceedings which would irreversibly terminate a parent’s rights must comport with the highest standard of due process, Lassiter v. Department of Social Services, supra; State in re Delcuze, 407 So.2d 707 (La.1981).

In Santosky v. Kramer, supra, the United States Supreme Court found that the clear and convincing evidence standard of proof struck a fair balance between the rights of the natural parents and the state’s legitimate concerns. The court held that such a standard adequately conveyed to the fact finder the level of subjective certainty about his factual conclusions necessary to satisfy due process. Santosky further held that the determination of the precise burden was a matter of state law properly left to state legislatures and state courts, so long as the burden was at least equal to that of “clear and convincing evidence.”

Our Louisiana Legislature has provided that termination of parental rights litigation instituted under 13:1601 D must be proven by clear and convincing evidence. In assigning this evidentiary standard, the Legislature has complied with the due process standards as defined by the United States Supreme Court in Santosky. See State in the Interest of Wisham, 452 So.2d 366 (La.App. 1st Cir.1984). This specification of error is without merit.

The natural parents also contend that the trial court erred in admitting certain documents into evidence, claiming that the documents constituted hearsay.

At the hearing, counsel for the natural father made a joint objection on behalf of both parents to certain documents offered by the state, viz.: an affidavit dated November 17, 1980 prepared by Doris Henry, a social worker employed by the Ouachita Parish Office of Human Development, in support of removal of the three children from their parents’ care; a notation dated March 6,1981 by a civil deputy in reference to the transportation by a deputy of both parents to a E.A. Conway Hospital on specified dates; a report dated October 30, 1981 prepared by Doris Henry, to apprise the trial court in accordance with the provisions of LSA-R.S. 13:1580.2 of the developments toward achieving a permanent plan for the oldest three children, and the attached confirmations of family team conferences; an affidavit by Doris Henry dated July 8, 1982, in support of removal of the youngest child, H.P., from her mother’s custody; and an annual report prepared by social worker Evelyn R. Aubrey, required by LSA-R.S. 13:1580.2, dated February 25, 1983, in reference to the youngest child.

The reports in question were prepared by either Doris Henry or Evelyn R. Aubrey. Both testified at the hearing and were available for cross-examination. The admission of the remaining document, the notation by the civil deputy, while hearsay, created no prejudice to the parents. This assignment, therefore, lacks merit.

In their final argument, appellants contend that the state failed to sustain their burden to prove each of the four elements of LSA-R.S. 13:1601 D. In particular, they argue that the children were not removed from their custody by judicial order due to their abuse or neglect of the children.

Because a termination of parental rights is such a severe and permanent action, the law requires the state to meet an onerous burden of proof before termination will be ordered. State in the Interest of Quitter, 445 So.2d 101 (La.App. 2d Cir. 1984). As previously discussed, with respect to termination actions brought under LSA-R.S. 13:1601 D, the state must prove each of the four required conditions of termination by clear and convincing evidence.

The record reveals that appellants lived together in a common law relationship in Alabama until September of 1980 when they moved to Louisiana. Upon their arrival, the parents did not live together, but saw each other sporatically. The children C.P. and M.P. were removed from their parents’ care on September 19, 1980, when their mother voluntarily agreed to place them in foster care. On that date, the mother entered into a ninety day agreement with the Office of Human Development listing certain conditions which would enable her to be reunited with her children, such as securing housing for herself and her unborn child. The father was at this time incarcerated in the West Baton Rouge Parish Jail.

On November 12, 1980, ten days after the birth of J.P., his mother entered into a similar agreement with the state with respect to his care.

On November 17, 1980, a judge signed an instanter order granting D.H.H.R. the temporary care, custody and control of the minor children, C.P., M.P. and J.P., for the purpose of protecting them from further abuse and/or neglect, pending the completion and investigation into the matter.

Thereafter, the state held a 72-hour detention hearing, and the court, after hearing the evidence, continued the custody of the children with the state pending the adjudication hearing. On February 9, 1981, the state filed a petition in accordance with LSA-R.S. 14:403 seeking to determine the custody of the oldest three children. On May 4,1981, when the adjudication hearing was scheduled, the parents and the state stipulated that custody of these three children would remain with D.H.H.R. in order to allow the parents to establish a home for the children and “get back on their feet.” At that time, the mother was unemployed and the father was incarcerated at the Monroe City Jail. Because of the stipulation, the children were not formally adjudicated as victims of neglect or children in need of care as a result of the February 9, 1981 petition. This petition for termination of parental rights was the next legal event concerning the oldest three children.

The mother’s contention with respect to the oldest three children is that since there was no formal adjudication of these children, the state failed to prove that the children were removed from her custody due to her neglect or abuse of them. We disagree.

In State in the Interest of Boudreaux, 427 So.2d 891 (La.App. 1st Cir.1983), writ denied, 432 So.2d 267 (La.1983), the First Circuit was presented with a similar argument. There, the parents-appellants argued that the judicial order required by subsection D(l) must be a valid judicial order, and since they were never given notice of a hearing either prior to or subsequent to the ex-parte order removing custody, the said order was void ab initio. The appellants further contended that the conditions prescribed in subsection D(2) of LSA-R.S. 13:1601 were not met because the judicial order removing custody was invalid and the evidence relative to the child’s neglect or abuse was in dispute. The court held that the ex parte order was validly issued under LSA-R.S. 14:403 G(6), and further held that the record clearly established that the child was neglected when she was taken into protective custody-

Likewise, in the case at bar, the court, acting under the authority granted in LSA-R.S. 14:403 G(6), issued the instanter order of November 17, 1980. The order specifically states that the children were removed due to their abuse and/or neglect. Moreover, the record supports this finding.

The testimony indicates that the mother had no place to stay, no money, and no food when she arrived in Monroe. M.P., the second child, who has a congenital heart deformity, had small circular sores on his legs, arms and chest, the appearance of which the social worker likened to cigarette burns. The mother did not contest the fact that the child had small untreated circular sores over his body but claimed that the sores were insect bites.

After J.P. was born, the mother was joined by the father in Monroe. On November 12, 1980, the parents were arrested when they were found drunk on the streets begging for money for their infant. A social worker was called to the jail. She discovered that the parents had no residence, no clothes for the baby, only one can of milk, and four or five oversized diapers. The mother admitted that she was provided with lodging and given money with which to pay rent and buy food following the removal of her oldest two children, but that she squandered the money because she was unsatisfied with her accommodations. The child J.P. was examined by a pediatrician and was found to weigh only five pounds, ten and one-half ounces and to be suffering from diaper rash and a left inguinal hernia. We find that these facts support the initial issuance of the instanter order which constitutes a valid judicial order removing custody for purposes of LSA-R.S. 13:1601 D(2).

With respect to the youngest child, H.P., the mother’s argument differs. H.P. was born on May 24, 1982. On July 9, 1982, an order was issued granting temporary custody of the child to D.H.H.R. for the purpose of protecting her from further abuse and/or neglect. A petition to determine the continued custody of H.P. was filed October 8, 1982. This petition alleged that the child’s father was unknown. H.P. was adjudicated a child in need of care and a victim of neglect by her mother by judgment signed December 6, 1982. The judgment further ordered that permanent custody of the child be awarded to D.H.H.R. pending further court order. H.P. was placed in a foster home with one of her siblings.

The mother argues that although H.P. was specifically adjudicated a victim of neglect and child in need of care, this adjudication can have no effect because the mother was not afforded counsel at this proceeding.

In Lassiter v. The Department of Social Services of Durham County, supra, the United States Supreme Court held that due process does not require the appointment of counsel for indigent parents in every parental status termination proceeding. This decision recognized that:

In its Fourteenth Amendment, our Constitution imposes on the States the standards necessary to ensure that judicial proceedings are fundamentally fair. A wise public policy, however, may require that higher standards be adopted than those minimally tolerable under the Constitution. Informed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but also in dependency and neglect proceedings as well. Most significantly, 33 States and the District of Columbia provide statutorily for the appointment of counsel in termination cases. The Court’s opinion today in no way implies that the standards increasingly urged by informed public opinion and now widely followed by the States are other than enlightened and wise. [Citations omitted]

In State v. Howard, supra, this Circuit held that:

Considering the fundamental and constitutional right of parents to the custody and control of their children, the adversary nature of abuse/neglect custody proceedings which involve charges of conduct which may give rise to criminal prosecution, the grievous nature of the loss which parents face through indefinite or prolonged separation from their child, and the imbalance of the power and ability of the state to present its side of the case as opposed to that of the parents, we hold that a minimum standard of due process under both the federal and state constitutions requires that counsel be furnished at state expense to indigent parents faced with charges of neglect and the possibility of removal of their child from their custody for an indefinite or prolonged period of time, unless the parents knowingly and intelligently waive their right to counsel. Necessarily implicit in this holding is that the parents be advised of their right to counsel. This holding applies to proceedings initiated under LSA-R.S. 14:403 and to child in need of care proceedings initiated under the Code of Juvenile Procedure.

The Howard decision also held that the procedure provided by Articles 51, 95 and 96 of the Code of Juvenile Procedure, which deal with advisement of right to counsel and appointment of attorneys for the child, should equally apply to the parent.

In the case before us, the mother was unrepresented at the adjudication hearing for H.P. The record does not reflect that the procedure established in Code of Juvenile Procedure Articles 51, 95, and 96 were followed. The minutes do not reveal an advisement of counsel until the initiation of the termination proceedings. The transcript contains only a brief mention of an attorney by the trial court at the adjudication hearing:

By The Court: You don’t have a lawyer? Are you contending that you should be restored the custody of this child?
By [Mother]: I am working towards it now that I’m back in Louisiana.
By The Court: All right. Let’s swear the first witness.

Considering this record, we are compelled to agree with the natural mother that the judgment of December 6, 1982 adjudicating H.P. a child in need of care and the victim of neglect cannot satisfy the requirement of LSA-R.S. 13:1601 D(2) since it was obtained in derogation of her right to counsel.

Notwithstanding, H.P. was removed from her mother’s custody by a valid instanter order issued July 9, 1982. The evidence reflects that the order was issued due to the mother’s gross neglect of this child. The natural mother brought the baby to the social worker’s office on June 23, 1982. Upon pediatric examination, the child was found to have severe thrush, which is an infected condition of the mouth, and a yeast infection. The child had only gained nine ounces since birth, which the doctor found to be an abnormally low weight gain. H.P. was hospitalized after her mother said she suffered convulsions. In her overnight stay in the hospital, the child gained two ounces. Tests performed at the hospital indicated that the child had not suffered convulsions. On July 6, 1982, the social worker received complaints that the mother was constantly walking the streets with the baby and taking the baby to bars late at night. There were further allegations that the child was not being fed. The mother still had no permanent home for herself or her child.

We find that this record demonstrates that H.P. was being seriously neglected when she was taken into protective custody of the court. Since there was a valid judicial order removing the child from custody due to her abuse or neglect, the provisions of LSA-R.S. 13:1601 D(2) have been satisfied. This assignment, therefore, lacks merit.

The father argues that since he was not mentioned in the order adjudicating H.P. a child in need of care or a victim of neglect, there has been no judicial removal of the child from his custody. Contrary to this assertion, it appears that the child H.P. was never in the father’s custody. At the time of the 72-hour detention hearing on July 9, 1982, appellant-father appeared and denied paternity of the child. At the time of the adjudication hearing, his paternity of the child H.P. was not as yet established. Therefore, the adjudication order does not mention him. At the termination hearing, the child’s birth certificate listing appellant as father was admitted into evidence without objection.

Nevertheless, the adjudication order was preceded by the instanter order of July 9, 1982, which we have previously found to be valid. At the time of its issuance, the father contested the paternity of the child, spent most of his time in jail for drunk and disorderly conduct, and did not contribute to the child’s support. We therefore find under the circumstances presented in this record, that the July 9, 1982 order which granted custody of the child H.P. to D.H. H.R. was sufficient to form the basis of termination of parental rights litigation as to her father. This specification lacks merit.

We further reject appellants' claim that the state failed to prove the remaining elements of LSA-R.S. 13:1601 D. The record clearly shows that while the children were in foster care, D.H.H.R. made great efforts to reunite the family but were unsuccessful.

The father was consistently arrested and incarcerated for drunk and disorderly conduct and was once ejected from the courtroom because of his inebriated condition. He failed to exercise many of his visitation privileges with the children, and only made one court appearance during the abuse, neglect and termination proceedings. Dr. Bobby Stephenson, a clinical psychologist, examined the father and testified that at some time in the past the father had a rather severe psychological disturbance, probably a schizophrenic process, which was now in remission. The doctor testified that the father regretted having his children taken away, but had resigned himself to the fact that he could not maintain himself independent of alcohol and provide a home for them. The doctor stated that the prognosis for the father’s reform was very poor; he felt that there would be a continuation of alcohol abuse and dependency on social service agencies. He also stated that he felt that the father had the potential for becoming abusive when drinking.

The mother testified that almost every time she went to the social worker’s office, the workers explained to her what goals she needed to achieve to restore the family unit. She acknowledged that had she attained the goals set for her by the social worker, she would have been reunited with her children. She remained, however, uncooperative. In the nearly four years her children were in foster care, she worked approximately one week. Moreover, she admitted that had she looked for work, she could have found a job. The mother did not arrange for permanent housing and reported forty-nine different addresses to social workers during the time her children were in the state’s custody. She frequently resided with men who tended to abuse her. At the termination hearing, she testified that she did not know how she would take care of the children if they were tendered back to her for care.

Although she kept virtually all of her monthly visitation periods with the children, the social worker testified there was little interaction between the mother and her children. Additionally, the mother admitted that she had spanked her small child, M.P., in the hospital when the child was awaking from a general anesthetic following surgery, allegedly because the child threw something at her.

Dr. Stephenson also interviewed the mother. He reported that the mother, unlike the father, was not an abusive personality. He stated, however, that the mother was an extremely dependent personality who was primarily concerned with her own needs. He stated that her children took a low priority in her life.

The ease workers for these four children testified that the children were well-adjusted in their foster homes, and that the foster parents wish to adopt the children.

After reviewing the record in this case, we find that the elements of LSA-R.S. 13:1601 D have been met by clear and convincing evidence. We therefore affirm the trial court’s judgment terminating parental rights.

The attorneys for the children and both parents have made motions for compensation for their appellate representation.

LSA-R.S. 13:1602 C states that an attorney shall be appointed by the court to represent the sole interest of the child, and an attorney shall be appointed by the court to represent the parent or parents if the court determines that such parent or parents are indigent and unable to employ counsel solely for that reason, in accordance with C.C.P. Arts. 5091-5098.

Therefore, in accordance with LSA-R.S. 13:1602 C, it is ordered that the following attorneys, Percy A. Ford, Jr., Charles A. Traylor, III, and Nancy F. Gilliland, be compensated in the amount of $500 each, to be taxed as costs of these proceedings.

Judgment affirmed and attorneys’ fees fixed for appellate services.

AFFIRMED.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    Chauncey Glen LaPRARIE, Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY, et al., Appellant.
    No. 16754-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Bolen & Erwin, Ltd. by Charles H. Mun-sterman, Alexandria, for appellant.
    Charles W. Seaman, Natchitoches, for appellee.
    Before JASPER E. JONES, SEXTON and NORRIS, JJ.
   JASPER E. JONES, Judge.

In this worker’s compensation case Lag-ersen Drilling Company, the employer, and its compensation insurer, Liberty Mutual Insurance Company, appeal a judgment awarding Chauncey Glen LaPrarie, plaintiff, permanent total disability benefits.

On October 22, 1978 while employed by Lagersen as a driller, plaintiff became entangled in a line attached to a moving winch type device and was pulled around the winch several times then thrown from the floor of the drilling rig. He sustained serious injuries including an injury to the right knee joint, a fracture of the left tibia and fibula, a fracture of the left humerus, a crushing type injury to the left hand including an extensive laceration to the muscles, nerves and ligaments of the hand. Plaintiff also sustained a nerve injury which caused a malfunction in his left eye diagnosed as Hoerner’s Syndrome.

As a result of these injuries plaintiff has a permanent 5% residual disability to the right and left leg and 80% permanent disability in the left hand. Plaintiff has residual pain in the left shoulder, arm, hand, eye, head and occasionally in the legs. The disabling extent of this pain is the primary issue in this appeal.

Plaintiff, who is 34 years of age, has average intelligence and a high school education. He has always worked in the oil field and current vocational tests reflect that his academic skills have retrogressed to between the sixth and eighth grade level.

Because of plaintiffs residual disability he was unable to return to his former job as a driller which required manual labor and would be unable to function as a forest technician, an occupation for which he qualified through study at a vocational school during the time he was convalescing from his serious injuries, as this job also requires manual labor.

On June 22, 1981 plaintiff obtained, with the assistance of a friend, a job as a tool pusher with Butler-Johnson, Inc. and was still employed at this job at the time of trial on March 13, 1984. As tool pusher plaintiff is responsible for the overall operation of the drilling rig. The job requires the plaintiff to perform no manual labor. Plaintiff works seven days and is off seven days. During his work week plaintiff is on call twenty-four hours per day and usually spends most of the week at the rig site. He is provided with a trailer to use as a place to rest while he is on the rig site.

The trial court found the plaintiff endures constant severe pain and without medication there is no occupation he could perform. The court further found the medication which plaintiff takes “just relieves the pain to a point that the remaining pain becomes bearable.” The trial court found the plaintiffs pain limits the work available to him and “greatly diminishes his ability to compete in the labor market” resulting in “his dependability for continuous employment being extremely uncertain.”

The appellants assign as error the trial court’s finding that plaintiff works in substantial pain and is an odd-lot employee. The appellants contend the plaintiff is not “totally and permanently disabled.”

The issue presented by these assignments of error is whether the plaintiff is working in substantial pain and entitled to classification as an odd-lot employee and permanent disability benefits.

The plaintiff in a worker's compensation case bears the burden of proving his claim by a preponderance of the evidence. Attaway v. Farley’s Glass Co., Inc., 430 So.2d 705 (La.App. 2d Cir.1983).

Under the odd-lot doctrine an employee is entitled to worker’s compensation benefits for total and permanent disability if, because of the combination of his injury and his training, experience, age, education and other relevant facts, he can perform no services other than those which are so limited that a reasonably stable labor market for them does not exist unless the employer and insurer shows the regular availability of suitable work. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980).

Injured workers who subsequently perform the duties of a job in substantial pain can be classified as odd-lot workers and entitled to permanent total disability benefits under the provisions of LSA-R.S. 23:1221 as amended by Act No. 583 of 1975. Culp v. Belden Corp., 432 So.2d 847 (La.1983); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Lattin v. Hica Corp., 395 So.2d 690 (La.1981); Lemoine v. Employers Cas. Co., 378 So.2d 594 (La. App. 3d Cir.1979); Lastrapes v. CNA Ins. Co., 401 So.2d 658 (La.App. 3d Cir.1981); Crockett v. St. Paul Ins. Co., 413 So.2d 949 (La.App. 1st Cir.1982); Cottonham v. Rockwood Ins. Co., 403 So.2d 773 (La.App. 3rd Cir.1981), writ denied 407 So.2d 732 (La.1981); and Attaway v. Farley’s Glass, Inc., supra.

The question of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. Henson v. Handee Corf., 421 So.2d 1134 (La.App. 2d Cir.1982).

On appellate review the trial court’s factual findings concerning work related disability should be given great weight and should not be disturbed where the evidence before the trier of facts supports a reasonable factual basis for the trial court’s findings, unless clearly wrong. Crump v. Hartford Acc. and Indem. Co., 367 So.2d 300 (La.1979); Culp v. Belden Corp., supra.

In the case of Wilson v. Ebasco Services, Inc., supra, the court stated:

... an employee who experiences substantial pain when performing routine physical tasks may find that employment opportunities are severely limited. Normally, an employer would find it less desirable to hire someone who must endure serious pain while working than someone who does not; the fact of pain may restrict the scope of activities in which an employee can be engaged, and may result in the functional inability to perform certain duties. Moreover, recurrent pain may cause frequent absenteeism on the part of the disabled worker, either because of the inability to work when the pain is particularly intense or because of the necessity of seeking medical treatment. These factors, along with others, place the employee who must work in pain at a competitive disadvantage to healthy workers in finding employment.

The plaintiff endures constant pain from his left shoulder through his left hand. He compares it to a moderately severe tooth ache. He endures frequent pain behind his left eye which he relates to sunlight, difficulty in focusing the eye and stress. He has frequent severe headaches and occasionally has pain in his legs.

The plaintiff takes from seven to eight pain pills each day to obtain some relief from this constant pain. Two of these pain pills contain codeine which is classified as a narcotic. The plaintiff’s doctor has changed the medication from time to time because the former drugs were not giving adequate relief. Plaintiff’s druggist testified the medication plaintiff is presently taking is stronger than he was required to take earlier and the druggist considers the quantity of medication which plaintiff is required to take to obtain relief may result in plaintiff becoming a drug abuser. Plaintiff’s doctor and druggist consider the amount of these drugs plaintiff must take to be a very substantial quantity of pain relieving medication.

Plaintiff’s orthopedic surgeon expressed the opinion that plaintiff sustained devastating injuries and stated that “a lot of people would never have come back to work.” Plaintiff’s doctors and pharmacist all agree plaintiff is in substantial pain and that he needs the medication he takes to function.

The appellants’ vocational rehabilitation expert, Dr. Galloway, who has many years experience in his field, stated that he has seen only two other men with injuries and pain comparable to plaintiff’s who attempted to return to work. This witness did not doubt plaintiff was having pain.

The plaintiff is a man possessed of extremely unusual intestinal fortitude and he works in substantial pain. The appellants contend this cannot be true because plaintiff has worked from June, 1981 until the date of trial in March, 1984, or for a period of almost three years without missing any work time. Appellants point out that plaintiff’s immediate supervisor testified that plaintiff’s work has been satisfactory and plaintiff will be retained as an employee as long as work is available. Appellants stress that Dr. Galloway and plaintiff’s physicians express the opinion plaintiff can continue at his present job. Appellants contend these circumstances preclude plaintiff from being classified as an “odd-lot” worker.

An employee who works in substantial pain and whose injuries and pain drastically impair his ability to compete in the labor market is entitled to a classification as an odd-lot employee. Lemoine v. Em ;ployers Cas. Co., supra; Cottonham v. Rockwood Ins. Co., supra.

The plaintiff testified that he could not perform his job without the heavy medication that he is required to take on a daily basis. There is evidence which supports the conclusion that the dosage has been increased and there is a possibility plaintiff may become a drug abuser or suffer other side effects. Plaintiff testified that on occasions while on the job his pain becomes so severe that for short periods of time, he has to retire to the trailer at the rig site when he needs to be out on the rig.

Plaintiffs doctors and appellants’ expert, Dr. Galloway, all acknowledge that plaintiff would have difficulty obtaining a tool pusher’s job with a new employer.

Plaintiff has very little formal education and no experience in any area other than working in oil fields. He is physically unable to perform any physical work due to his disabled hand and other limitations. The job he is now performing involves the ultimate responsibility for the operation of expensive and complex machinery performing highly technical work using numerous skilled workers. An employer would necessarily want an extremely well qualified individual functioning without limitation to-fill this extremely responsible position. There is evidence in this record which supports the conclusion that pain impairs the ability to function and there can be no doubt as to the correctness of this conclusion. Most employers would reject an applicant for a tool pusher’s job who is enduring constant pain and must literally take a hand full of pills daily, some of which contain narcotics, in order to stay on the rig and supervise its operation.

Plaintiff’s ability to compete in the labor market is extremely limited.

There is substantial evidence supporting all the trial judge’s findings of fact and we find no manifest error in his factual determinations that plaintiff is working in substantial pain and is an odd-lot employee.

Judgment AFFIRMED at appellants’ cost.

      . Plaintiff was initially classified as a driller but always performed supervisory work while employed by this employer prior to being classified as a tool pusher.


author: MARVIN, Judge.

text:
    Mary Catherine Hankins WALKER, Plaintiff-Appellant, v. Joseph Ray WALKER, Defendant-Appellee.
    No. 16757-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      McLeod, Swearingen, Verlander & Dollar by Vickie Green, Monroe, for plaintiff-appellant.
    Marshall Blackwell, Monroe, for defendant-appellee.
    Before HALL, MARVIN, and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In a partition action, the wife appeals a judgment characterizing as community property the benefits that accrued to her in the Louisiana School Employees’ Retirement System during her marriage 1957-1983. LRS 17:881, et seq.

The wife contends that LRS 17:883, exempting retirement benefits from taxation, levy and sale, garnishment, and assignability, should be construed as characterizing the benefits as separate property. Compare LRS 42:545, interpreted as the wife here contends in Roberts v. Roberts, 325 So.2d 674 (La.App. 2d Cir.1976). That statute, however, affected the Louisiana State Employees’ Retirement System. Also see and compare LRS 40:1442.2 and Langli-nais v. David, 289 So.2d 343 (La.App. 3d Cir.1974), (La. State Police Retirement System); 5 USC 8345-6 and Sims v. Sims, 358 So.2d 919 (La.1978), {federal retirement system); LRS 17:572; and Scott v. Scott, 179 So.2d 656 (La.App. 2d Cir.1965), (Louisiana Teachers’ Retirement System).

The more recent cases, however, have limited the effect of similar exemption statutes to their stated purpose and not as designating the community or separate character of the retirement benefit. See McCoy v. McCoy, 460 So.2d 641 (La.App. 4th Cir.1984), construing the State Employee’s Retirement System, and Thrash v. Thrash, 387 So.2d 21 (La.App. 3d Cir.1980), writ denied 4-3, construing the Teachers’ Retirement System. The statute in the teachers’ retirement system, (LRS 17:572), except for one minor phrase, is the same as LRS 17:883 in the School Employees’ Retirement System statutes.

Notwithstanding the earlier holding of this court in Roberts, supra, we agree with Thrash and McCoy that exemption statutes should not determine the character of property as either community or separate. The exemption statute in Roberts cannot be distinguished from the exemption statute here even though these statutes involve different retirement systems. To the extent that Roberts conflicts with this opinion, it is hereby overruled.

The clear wording of LRS 17:883 shows that the statute’s only purpose was to exempt school employees’ retirement benefits from taxation, levy, and sale, garnishment, attachment, and other processes and assignments, and was not to insulate the school employee’s retirement benefits from the application of the matrimonial regimes articles of the civil code. In the absence of a marriage contract, property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse is community property. CC Art. 2338. There is no section of the Louisiana School Employees’ Retirement System which characterizes the benefits as separate property.

At appellant’s cost, judgment is affirmed.

      . Section 883 reads:
      "The right of a person to a pension, an annuity or a retirement allowance, to the return of contributions, the pension, annuity or retirement allowance itself, any optional benefit or any other right accrued or accuring to any person under the provisions of this Part, and the moneys in the various funds created by this Part, are exempt from any state or municipal tax, and exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable except as otherwise specifically provided in this Part.”

      . See also Schueler v. Schueler, 460 So.2d 1120 (La.App. 2d Cir.1984).


text:
    Cleo B. BLAKENEY, Plaintiff-Appellant, v. TIDEWATER COMPRESSION SERVICE, INC., Defendant-Appellee. HOME INDEMNITY COMPANY, Plaintiff-Appellant, v. HAFCO, INC., Defendant-Appellee.
    No. 16759-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Rehearing Denied Feb. 22, 1985.
    Writ Denied April 19, 1985.

      Dimos, Brown, Erskine, Burkett & Smith by Donald R. Brown, Monroe, for Cleo B. Blakeney.

      Laborde & Lafargue by Cliffe E. La-borde and Elizabeth O’Brien, Lafayette, for Tidewater Compression Service, Inc.
    McLeod, Swearingen, Verlander & Dollar by Elmer G. Noah, II, Monroe, for Hafco, Inc.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for Home In-dem. Co.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   JASPER E. JONES, Judge.

In this tort action the plaintiffs, Cleo B. Blakeney and Home Indemnity Company appeal a judgment rendered pursuant to a jury verdict, rejecting their demands for damages against Tidewater Compression .Service, Inc. and Hafco, Inc.

We amend and render judgment against Tidewater and as amended affirm.

Blakeney was injured on September 13, 1979, while working on a compressor station as an employee of Helm Constructors, Inc. Helm had contracted to build the station for Tidewater. Home was Helm’s worker’s compensation insurer and paid Blakeney compensation benefits totaling $25,547.23 which it is seeking to recover under the subrogation provision of the worker’s compensation law.

The station was located in a flood plain and for this reason was constructed upon a platform approximately ten feet high.

Helm rented a crane supplied with an operator from Hafco, Inc. to place the heavy compressor equipment upon the platform.

Blakeney sustained a serious knee injury while suspended in the air on a cable which was part of a sling that had been used to lift a cooling tower to the platform. The sling was attached to a cable and a boom on the Hafco crane and was controlled by Hafco’s crane operator who was being directed by Doug Youngblood, an employee of Tidewater. Plaintiffs contend Blake-ney’s knee injury was caused by the negligence of Hafco’s crane operator and Tidewater’s employee, Doug Youngblood, who is referred to in the record as an inspector or supervisor.

The case was submitted to the jury on four interrogatories. The jury, based upon the interrogatories, found that neither Tidewater nor Hafco were guilty of any negligence that caused Blakeney’s knee injury and Blakeney was guilty of contributory negligence and assumption of the risk which caused his injuries. The jury for these reasons found plaintiffs were entitled to no award against the defendants.

The issues on appeal are whether these factual determinations by the jury are supported by substantial evidence and the judgment should be affirmed or whether all or part of the jury determinations are not supported by substantial evidence and plaintiffs are entitled to a judgment against either or both of these defendants.

BACKGROUND FACTS

In May of 1979 Tidewater contracted with United Gas Pipeline Company to construct the compressor station and lease it to United. In June, 1979 Helm contracted with Tidewater to construct the compressor station. Helm employed Blakeney as a carpenter and general construction worker to work on the construction of the compressor station. The platform on which the compressor station was located had been completed and much of the equipment had been installed upon it prior to Blakeney’s accident. On this date the Hafco crane was located very close to the platform upon which it had earlier placed two eighty-ton compressor units. These units were raised from the ground by a large cable sling consisting of four long cables (each 25 or 30 feet in length with a heavy shackle on the end) one of which was attached to each corner of the compressor. On the date of plaintiffs injury a cooling tower (much smaller and lighter than the compressors) was placed upon the platform by using the sling. Three of the sling cables were attached by the shackles to eyes located on top of the tower. The fourth cable of the sling was not used to lift the tower. After the tower was bolted to the floor of the platform it was necessary for a man to go to the top of the tower and remove the shackles from each of the eyes on top of the cooling tower in order that the sling could be removed from the tower. Doug Youngblood, who was supervising the tower installation, instructed four of Helm’s employees, one of whom was Blakeney, that one of them was required to get upon the end of the remaining fourth cable of the sling (the other three were attached to the top of the tower) and be lifted to the top of the tower and remove the shackles from the top of the tower. Blakeney agreed to do this task.

He in some manner not entirely clear from the record secured his foot on the end of the cable and held onto it with his hands and was lifted to the top of the cooling tower (which was estimated by one of the witnesses to be about 30 feet tall). Blake-ney proceeded to remove the shackles from two of the eyes at the top of the tower and almost had the last one unscrewed prepato-ry to removing it from the eye when the sling which included the cable upon which Blakeney was riding suddenly moved toward the outer edge of the platform away from the tower to which one of the cables of the sling remained attached. This movement was caused by the crane operator who was signaled by Doug Youngblood to bring the sling and Blakeney to the ground as the job was complete. This movement of the sling while still attached to the tower could have torn the tower from its anchored position on the platform to which it had been bolted by Blakeney and the other Helm employees. One or more of these employees shouted to Youngblood who was controlling the operation of the crane by signals to its operator, calling. Young-blood’s attention to the impending disengagement of the tower from the platform and Youngblood immediately signaled the crane operator to return the sling to the position above the tower and upon receiving this signal the crane operator immediately moved the boom and returned the sling to the position above the tower. When the movement of the sling away from the platform was suddenly reversed back toward the tower which was located on the opposite side of the platform from the crane, this change in direction and the momentum in connection with it caused the two cables of the sling which had been earlier removed from the tower and the one upon which Blakeney was riding to actively swing toward the tower with no control which could be exercised by anyone as to their direction with relation to each other. Blakeney described his position as being located in the middle of so much swinging “scrap iron.” As the sling moved in this fashion to its required position above the tower one of the large shackles attached to the end of one of the swinging cables of the sling struck Blakeney on the knee causing the serious permanent injury which precipitated this litigation. After Blakeney was returned to the position above the tower he removed the remaining shackle from its position in the eye at the top of the tower. The sling was lowered to the top of the platform or the ground and Blakeney got off of the end of the cable which he had ridden to perform the task of disconnecting the sling from the tower. He realized his knee was hurt but did not realize the severity of his injury and continued to work for about a month.

NEGLIGENCE OF HAFCO, INC.

The position of the crane within about two feet of the platform directly in front of the area of the platform where the large compressors and other machinery had earlier been installed resulted in the crane operator being unable to see the area on the platform where the tall cooling tower was installed. Because of the obstruction of the crane operator’s view by the platform and equipment upon it the manner in which he operated the boom and cable to which the sling was attached depended totally upon signals received by the operator from Doug Youngblood who had positioned himself on the ground (or perhaps on the platform) at a point where he could observe the area on the platform where the tower was installed and also see and be seen by the crane operator. All of the movements of the sling by the crane operator were made in response to signals from Youngblood. The total inability of the crane operator to see the tower operation and the necessity of his reliance upon Youngblood was established by all the evidence at trial. There is no evidence that the crane operator failed to respond properly to the signals given by Youngblood nor that he moved the sling without receiving a signal from Young-blood.

Hafco secured the crane operator’s presence at trial but never called him to testify.

Appellants contend Hafco’s failure to place this witness on the stand creates a presumption that his testimony would be unfavorable to Hafco. Upon the basis of this presumption appellants argue Hafco should be found negligent and the jury’s determination of no negligence on the part of Hafco should be reversed. We find this contention without merit because the presumption only arises when the party against whom it is sought to be applied has the burden of proof and control over or a close relationship to the witness. Wolfe v. Employers Commercial Union Insurance Co., 272 So.2d 714 (La.App. 3d Cir.1973). The appellants had the burden of proving the negligence of the crane operator and is not entitled to the presumption.

None of appellants witnesses testified to any fact to support a finding of negligence on the part of the crane operator nor is there any other evidence in the record which would support a finding that Hafco was guilty of negligence. We find the jury’s determination that Hafco was guilty of no negligence is correct.

NEGLIGENCE OF TIDEWATER

Doug Youngblood was employed by Tidewater and was characterized by Helm’s employees as an inspector or supervisor. Youngblood died before the case was tried and his testimony was not produced by earlier deposition. Helm’s job superintendent was Pete Stockley and Helm’s foreman was Red Mathews. However, Youngblood often gave Helm’s employees orders directing the manner in which they performed their work.

Youngblood issued the order to four Helm employees which included Blakeney that one of them ride the unattached fourth cable of the sling to the top of the cooling tower and disconnect the three cables of the sling from the tower. Blakeney responded to this order and volunteered to be the Helm employee that would do the task. The use of the fourth cable of the sling for the purpose of placing Blakeney at the top of the tower resulted in Blakeney remaining in the immediate proximity of each of the remaining cables as the shackles at the end of each of them were detached from the tower. Any movement of the sling following the detachment of any of the cables from the tower which would cause the freed cables to swing subjected Blake-ney, who was riding the fourth cable, to the danger of being struck by the other free swinging cables or the shackles at the end of each of them. The method used to remove the attached cables from the tower required that the sling be maneuvered in such a manner as to minimize the swinging of the cables in order to avoid striking Blakeney with one of them. The movement of the sling by the crane operator away from the tower and toward the edge of the platform at a time when one cable of the sling was still attached to the tower and then immediately moving the sling back over the tower caused the two freed cables of the sling to swing freely in the air and the shackle upon one of them to strike Blakeney’s knee. If all of the cables had been removed from the tower and the sling slowly lowered directly to the platform in the immediate proximity of the tower this would have required little or no horizontal movement of the cables of the sling and no danger to Blakeney who could have stepped from the cable onto the platform. No accident would have occurred.

Youngblood positioned himself to observe the tower installing operation and serve as signalman to the crane operator. There is no evidence in the record to establish that he could not observe Blakeney at the top of the tower and each of the cables attached to the tower. He should not have signaled the crane operator to move the sling away from the tower while one of the cables remained attached to it and having made this mistake, he should not have immediately reversed the movement of the sling back toward the tower. These movements of the sling caused the free swinging shackle to strike Blakeney’s knee.

Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It is a departure from the conduct expected of a reasonable prudent man under like circumstances. Pence v. Ketchum, 326 So.2d 831 (La.1976); Craft v. Caldwell Parish Police Jury, 455 So.2d 1226 (La.App. 2d Cir.1984).

Whether a legal duty is owed by one party to another depends on the facts and the circumstances of the case and the relationship of the parties. The legal duty is the obligation to conform to the standard of conduct of a reasonable man under like circumstances. Straley v. Calongne Dray-age & Storage, Inc., 346 So.2d 171 (La. 1977); Craft v. Caldwell Parish Police Jury, supra.

Youngblood issued the order that placed Blakeney on the end of a cable of the sling and he controlled the movement of the sling. He was intimately familiar with the entire operation. The relationship between Youngblood and Blakeney and all of the circumstances placed upon Youngblood a duty to conduct his function of relaying signals to the crane operator in such a way as not to create an unreasonable risk of harm to Blakeney. Youngblood violated his duty to Blakeney when he signaled the crane operator to move the sling away from the tower without ascertaining that all the cables had been removed from the tower and were clear of it. Youngblood again conducted himself in an unreasonable manner under the circumstances when he suddenly reversed the movement of the sling back towards the tower, at which time one of the shackles on the end of the swinging cable struck Blakeney’s knee. Blakeney was injured due to the negligence of Youngblood.

An employer is liable for a tort committed by his employee who is acting in the scope of his employment,in the exercise of duties for which he is employed. LSA-C.C. 2320; Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968); LeBrane v. Lewis, 292 So.2d 216 (La.1974); Craft v. Caldwell Parish Police Jury, supra.

A contractor’s employee, who is injured by the negligence of an employee of the contractor’s principal related to the work being performed by the contractor’s employee, has a tort cause of action against the contractor’s principal where the principal has not established immunity under the worker’s compensation statute. Lewis v. Exxon Cory., 441 So.2d 192 (La. 1983); Lewis v. Exxon Cory., 451 So.2d 24 (La.App. 1st Cir.1984).

The evidence establishes that Doug Youngblood was working as an employee of Tidewater inspecting and supervising the construction by Helm of the compressor station and that in this capacity Young-blood directed the installation of the tower.

There is no substantial evidence in this record to support the jury’s factual determination that Tidewater was guilty of no negligence contributing to Blakeney’s injury. We find this factual determination clearly wrong. We find the preponderance of evidence establishes Blakeney was injured by the negligence of Tidewater.

WAS BLAKENEY GUILTY OF CONTRIBUTORY NEGLIGENCE

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own safety and protection, that standard being that of a reasonable man under like circumstances. U.S.F. & G. Co. v. State, Dept, of Highways, 339 So.2d 780 (La.1976); Straley v. Calongne Drayage & Storage, Inc., supra; Craft v. Caldwell Parish Police Jury, supra.

A workman who subjects himself to hazardous duties in order to perform his work is not guilty of unreasonable conduct by failing to avoid a known risk because to decline to do the work could subject him to the loss of his job which he needs for the support of himself and his family. Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4th Cir.1970). See also Brown v. White, 430 So.2d 16 (La.1983); Gradis L. Cutchall v. Great American Pump Company, et al, 460 So.2d 1106 (La.App.1984).

A workman whose duties require that he work in hazardous circumstances who is injured while doing his best to discharge those duties is not guilty of contributory negligence even though he is fully aware of the risk of injury to which he is subjected while performing his work. O’Keefe v. Warner, 288 So.2d 911 (La.App. 1st Cir.1973).

Blakeney was one of four Helm employees that received the order from Young-blood to mount the sling and go to the top of the tower. He therefore was not unreasonable to consider the work to be part of his duties which he was required to perform for Helm. The fact that he didn’t wait for each of his co-employees to decline the performance of the task before he agreed to undertake it does not detract from the validity of this conclusion. Each of the Helm employees knew the task was required of him although the task only required that one of them undertake it. Any workman knows the failure to perform required duties assigned by his superior may endanger his job. Youngblood as supervisor for Tidewater was functioning as Blakeney’s superior when he gave the order. Blakeney’s conduct in undertaking the task was not unreasonable even though it was hazardous and subjected him to an unreasonable risk of harm.

There is no substantial evidence in the record to support the jury’s finding that Blakeney was guilty of contributory negligence under the circumstances established at trial and this factual determination by the jury is clearly wrong.

ASSUMPTION OF THE RISK

In order for the doctrine of assumption of the risk to constitute a valid defense it must be shown the plaintiff understood the risk he incurred and the choice to incur it was entirely free and voluntary. Pagitt Well Service, Inc. v. Sam Brous-sard, Inc., 293 So.2d 631 (La.App. 3d Cir. 1974); Pollard v. Roberts, 306 So.2d 801 (La.App. 2d Cir.1975).

Blakeney undertook to ride on the end of a cable to the top of the tower and while there in a stopped relatively stable position to remove the shackle from the end of each of the other cables of the sling and to then be relatively gently lowered to the platform or ground. Normally each of the released cables would be in a steady straight hanging position following their release from the top of the tower and would create no great hazard to Blakeney as he was lowered from the tower. The risk inherent in the performance of the task under those circumstances is the only risk assumed by Blakeney.

The risk to which Blakeney was subjected was the attempt to move the sling and lower it while one of the cables remained firmly attached to the tower followed immediately with the moving of the sling back to a position over the tower, which action caused the shackle on the end of one of the cables to swing into Blakeney’s knee. Blakeney did not assume this risk as he had no reason to expect it to occur. We also conclude that Blakeney’s undertaking the task was not entirely free and voluntary because it was undertaken by him pursuant to an order from a superior.

There is no substantial evidence in this record to support the jury’s factual determination that Blakeney assumed the risk and this finding by the jury is clearly wrong.

QUANTUM

Blakeney seeks damages for permanent disability, pain and suffering, loss of future wages, and medical expenses. Home Indemnity Company, pursuant to the subro-gation provisions of LSA-R.S. 23:1103, seeks a judgment for compensation paid by it to Blakeney in the amount of $21,213.23 and for $4,334.43 for medical expenses paid by it on Blakeney’s behalf from any award received by Blakeney.

Blakeney had no disability or other medical problem with his right knee or leg prior to the accident. Because Blakeney believed the injury to his knee was not serious he did not go to the doctor until eight days after the accident. He worked for one month after the accident prior to undergoing significant medical treatment. During this one month period he was working in severe pain accompanied by swelling of the knee and frequent stiffening of the knee.

Blakeney underwent surgery on two occasions for treatment of his knee and these procedures were accompanied by almost a year of restorative physical therapy.

Dr. George D. Edwards, a general practitioner and Blakeney’s family physician, saw Blakeney eight days after the accident. Blakeney was complaining about extreme pain in his knee and difficulty with walking. Dr. Edwards prescribed pain medication and instructed Blakeney to rest his right leg whenever possible. Blakeney called Dr. Edwards about three weeks later and told him his pain had increased. Dr. Edwards referred Blakeney to an orthopedic specialist.

That orthopedic surgeon, Dr. Douglas C. Brown examined Blakeney on October 11, 1979, and X-rays revealed a small tear on Blakeney’s cartilage and some pathology in the kneecap. Dr. Brown performed surgery on October 16, 1979 to correct the deterioration of the kneecap. He performed a chondroplasty, which involves drilling holes in the kneecap and shaving the undersurface of the kneecap to promote healing. Blakeney was in a cast and on crutches for about one month after this surgery.

Blakeney returned to Dr. Brown on December 14, 1979 with knee pain and knee stiffening. Dr. Brown prescribed pain medication, fitted Blakeney with a compression knee sleeve to reduce swelling around the kneecap, and instructed Blake-ney to avoid climbing stairs and hills. Dr. Brown saw the plaintiff on February 8, 1980 at which time the pain had became so severe Blakeney could barely walk. Dr. Brown performed a second operation on Blakeney’s right knee on February 21, 1980. At this time Blakeney’s right kneecap was totally removed. Blakeney was placed in a cast after the operation which was not removed for a month and he was ambulatory only on crutches for about six weeks following this accident.

Dr. Brown opined that Blakeney had recovered from the operation by April 22, 1980.

Dr. Brown recognized that Blakeney was still in some pain. Dr. Brown stated Blake-ney had a 30% permanent partial disability of the right leg. Dr. Brown believes Blake-ney is still capable of performing the full time farming which he had engaged in pri- or to the accident, but he discouraged Blakeney from obtaining employment in the construction business, particularly where he was required to work off the ground.

While the operations relieved a substantial portion of the pain and disability caused by the accident, Blakeney’s right leg was still substantially impaired at the time of trial. He is incapable of squatting for more than a few minutes, and he cannot sit down for any long period of time without his knee stiffening. Blakeney is unable to walk for long periods of time without his knee stiffening. He has difficulty climbing and going down hills and stairways. Blakeney’s inabilities to squat, sit, walk, climb, and descend without difficulty makes it difficult for him to properly maintain the farm equipment which is essential to his farming operation. Because of his disability the maintenance work he must perform requires more time than it did before the accident. Blakeney’s walking limitation has drastically curtailed his bird hunting, which was his favorite sport in which he engaged five or six times a week during hunting season prior to the accident. Blakeney is a farmer but prior to the accident worked part-time in construction when his farming did not require his presence. Blakeney continues to farm but has not sought work in the construction business since the accident because of his inability to squat and climb stairs. The fact that his wobbly right leg might cause him to fall from high places is another reason why Blakeney no longer does construction work. Immediately prior to the accident he was working approximately forty hours a week and earning $10.25 per hour. Blakeney cannot farm as well as he did prior to the accident because of his inability to move around with the same dexterity he had prior to the accident and because of his difficulty in maintaining his equipment essential to his farming operation.

An award for loss of future wages may be made on an injured person’s ability to earn, rather than what he earned prior to the injury, and lost earnings may be assessed without calculating the exact amount of the pecuniary loss. Folse v. Fakouri, 371 So.2d 1120 (La.1979); Philippe v. Browning Arms Co., 395 So.2d 310 (La.1981).

Blakeney underwent two surgerical procedures for his knee injury and required medical care for at least seven months after the accident. Blakeney has a 30% permanent partial disability of the right leg as a result of his injury. Blakeney sustained substantial pain for many months following the accident and occasionally still has some pain.

We conclude the record supports an award of damages to Blakeney against Tidewater in the sum of $74,334.43 and that Home is entitled to $25,547.66 of this award.

We amend and recast the judgment appealed as follows:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that there be judgment in favor of HAFCO, INC. and against CLEO B. BLAKENEY and HOME INDEMNITY COMPANY rejecting plaintiff’s demands.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of CLEO B. BLAKE-NEY and against TIDEWATER COMPRESSION SERVICE, INC. in the full sum of $74,334.43, together with legal interest from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that $25,547.66 of CLEO B. BLAKENEY’S judgment, together with the judicial interest on this amount, is awarded in favor of HOME INDEMNITY COMPANY pursuant to LSA-R.S. 23:1103.

TIDEWATER COMPRESSION SERVICE, INC. is cast for all costs of these proceedings.

      .1. Was TIDEWATER COMPRESSION SERVICE, INC. and/or its agents, servants or employees guilty of any negligence which was the proximate cause of CLEO BLAKENEY’S injuries?
      YES NO
      2.Was HAFCO, INC. and/or its agents, servants or employees guilty of any negligence which was the proximate cause of CLEO BLAKENEY'S injuries?
      YES NO
      3. Was CLEO BLAKENEY guilty of any contributory negligence and/or assumption of the risk which was the proximate case of his injuries?
      YES NO
      4. If you have answered either or both Interrogatory No. 1 or Interrogatory No. 2, "YES”, and you have answered Interrogatory N. 3 "NO”, then answer the following Interrogatory.
      CLEO BLAKENEY and THE HOME INSURANCE COMPANY are entitled to $ 0 .

      . Tidewater has not established immunity under the compensation act and does not argue this defense in brief.