text:
    No. 2327
    Second Circuit Appeal
    HARRY L. EISEL v. CADDO TRANSFER AND WAREHOUSE COMPANY
    (June 23, 1925, Opinion and Decree.)

      (Sylabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 160 (I).
    The finding of the trial judge in a Workmen’s Compensation case under Section 8, Subsection 1 (b) pf Act No. 20 of 1914, as amended by Act 216 of 1924, that the injured employee was permanently, totally . disabled to do work of any reasonable character being clearly correct, is affirmed.
    2. Louisiana Digest — Master and Servant— Par. 160 (I); Appeal — Par. 512.
    Where in a Workmen’s Compensation case under Act No. 20 of 1914 the defendant did not give a suspensive appeal bond, the execution of the judgment was not stayed, and therefore, damages for friv- ' olous appeal will not be allowed.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellee.
    John B. Files, of Shreveport, attorney for defendant, appellant.
   REYNOLDS, J.

This is a suit under the Workmen’s Compensation Act for compensation at the rate of $18 per week during disability not exceeding 400 weeks for an .injury suffered by plaintiff on March 31, 1924, resulting from a fall of about nine feet in which plaintiff landed in a sitting position on a cement floor causing an injury close to the base of the brain and the lower part of the spine.

Defendant denied liability and alleged that it had paid plaintiff more than $200 and furnished him with medical attention.

On these issues the case was tried and judgment was rendered in favor of the plaintiff for $18 per week during disability, not to exceed 400 weeks, subject to a credit of $216, the first weekly payment to be due April 17, 1924, with legal interest on each payment from its maturity until paid. Defendant appealed.

OPINION.

The only dispute in this case is as to the extent of the injuries received by plaintiff.

Doctor J. D. Young testified, page 2:

“Q. What- did you find as to his condition?
“A. After going over Mr. Eisel carefully, I find a condition that would indicate that Mr. Eisel had damage done to the motor side of his cord, at a level close to the base of the brain, caused from some injury.”
(Page 3):
“Q. Do you know the nature of that injury?
“A. The nature of that injury, from my examination, would be an injury at the first and second cervical segment of the . cord caused from traumatism.
“Q. Was there a fracture?
“A. Fracture and dislocation.”
(Page 4:
“Q. Is the center of the nervous system destroyed on this man?
“A. Certain fibres of the motor tract are destroyed.
“Q. How long will you say that his improvement will continue?
“A. He has about reached the maximum improvement now. Usually six months after an accident of that type the patient reaches the maximum of improvement.”
(Page 5):
“Q. Do you find flacit paralysis in this man?
“A. I find spactic paralysis.
“Q. Then ■ your opinion is, from your examination, that the injuries will be permanent?
"A. My opinion is they will be permanent.”

Plaintiff testified, page 3:

“Q. And they sent you to the North Louisiana Sanitarium, then?
“A. Yes, sir.
“Q How long did you stay in the Sanitarium then?
“A. About fifteen minutes.
“Q. What did they do with you then?
“A. Sent me home.
“Q. Where?
“A. 1549 Irving Place.
“Q. What did you do then?
“A. I went to bed and stayed until the next day at two o’clock and went back for treatment and I kept that up for a period of about nine days and I couldn’t make it the tenth day, so they made some pictures of the lower part of my spine, the tenth day, and found I was injured and they put me to bed to stay ten days with a brace on, and I had been in bed about three days when they come out and wanted me to get up and walk around and take exercise, said that was what I needed.
“Q. Who was waiting on you then?
“A. Dr. Abramson, he had charge of the case but Doctor Hargrove was the doctor coming to see me.
“Q. They were the company’s physicians attending you?
“A. Yes, sir.'
“Q All right, go ahead and state what happened. Did you go back to bed?
“A. I stayed in bed, I couldn’t walk.
“Q. How long did you stay in bed after that?
“A. Well, I stayed in bed all the time. In fact I stayed there until, I believe, it was about the 10th or 12th week after-wards they called in Dr. Caldwell and he gave me an examination and had some more pictures made and— ,
“Q. Did they call in any other doctor?
“A. Dr. Young, and, he found more trouble and had some more pictures made and I think they quit the case then, at least there hasn’t been a doctor to see me since .then, and they stopped my compensation three weeks before this however.”

Defendant introduced no testimony whatever.

Plaintiff moves for damages as for frivolous appeal. But as the defendant, did not give a suspensive appeal bond .the execution of the judgment was not stayed, and therefore damages for frivolous appeal will not be allowed.

In our opinion all of the evidence in the case fully warranted the judgment of the lower court.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed.


source: Caselaw Access Project

author: CARVER, J.

license: Public Domain

text:
    No. 2329
    Second Circuit Appeal
    BENJAMIN T. SIMMONDS v. AUSTIN OIL COMPANY
    (June 23, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 160 (j).
    A doctor’s prediction as to when an injured hand .will recover amounts to little or nothing as opposed to testimony given six months thereafter, showing, contrary to the prediction, that it had not recovered.
    2. Louisiana Digest — Master and Servant— Par. 159, 159 (a).
    Where the evidence in a Workmen’s Compensation case under Act No. 20 of 1914, clearly shows that the earning capacity of the injured employee has been decreased by the accident he is entitled to compensation during the period of disability not to exceed 300 weeks under Section 8 Subsection 1 (c), Act 20 of 1914.
    3. Louisiana Digest — Master and Servant— Par. 160 (I)! Appeal — -Par. 512.
    Damages will only be allowed for a frivolous appeal where the appeal is suspensive. Therefore, a devolutive appeal in a compensation case cannot be considered one on which to give damages as' for frivolous appeal.
    (See Code of Practice, Art. 907. Editor’s note.)
    (The recent amendment of Section 8 of Act 20 of 1914, is Act 216 of 1924.)
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit brought by an injured employee for" compensation under the Workmen’s Compensation Act, No. 20 of 1914, as amended by Act 43 of 1922.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellee.
    John B. Files, of Shreveport, attorney for defendant, appellant.
   CARVER, J.

Plaintiff, an electrical worker, 44 years old, sues for compensation under the Workmen’s Compensation Act and its amendments (Act No. 20 of 1914, as amended by Act No. 43 of 1922) for 300 weeks for injuries alleged to have been received in an accident arising out of and in the course of his employment by the defendant.

The answer is general denial.

The District Judge allowed $18 a week during disability, not to exceed 300 weeks.

Defendant appeals, and plaintiff asks damages for frivolous appeal.

Plaintiff describes the accident as follows :

“I attempted to open a switch on a 550-volt circuit and did so and my foot slipped off the board in the building for a floor, only one board there, and I fell about fourteen inches down and fumbled the switch, and there was a flash immediately and burned my hand along in here, burned this nail and it came off.”

He further states that his wages were $200 per month, besides water, gas, light and the use of a house, and occasional use of an automobile. Also that he had not been able to hold a job since the accident. That his occupation requires careful work with the injured hand, the right; that it is now useless; that in doing armature work the wires have to be placed very carefully, demanding the use of the ends of the fingers; that he can do some electrical work with the left hand but not much; that since the accident, June 19, 1924, to the time of the trial, December 12, 1924, he “had worked about 30 days; 15 days picked up odd jobs”; had not had regular position but only little repair jobs; had earned about $100 during that time; that his hand and arm tingled up to the elbow; that he is right-handed; that he was treated by Dr. Collins from June 19 to August 1; that he worked for defendant for thirty days after the accident; that he could have gotten work in Shreveport but was not able to do it; that he drew salary from Austin Oil Company from the time of his employment — four or five months before the accident — until he left there, about the first day of August; that there was nothing wrong with his arm or right hand before the accident; that he could do all kinds of electrical work before that and had done so for twenty years; that now he cannot handle a small screwdriver with any accuracy, and cannot do the w'ork in relaying.

As to his discharge, he says that Mr. Austin, one Sunday before the first day of August, “called me to the office and told me after the first he would not. need my services any more; I suppose I disagreed with the way he handled things, or wished for me to handle things there, not particularly my view of it, no particular {rouble.”

“Q. A' disagreement about the handling of the business between you and Mr. Austin?
“A. Well, I discussed with him what I wanted to do regarding changes around in the plant and over the refinery tanks, told him that I would like to go ahead with the work, and he just give me two or three men to go ahead and do the work, and he treated me with absolute arrogance, ignored me.”

He says this was a few days before the first of August.

Dr. J. D. Young was appointed by the court on the day before the trial to examine the plaintiff and made his report, which is as follows:

“A man of good physical health, with no mental disturbance of any type, normal in every way with the exception of the ex-tensor tendons of right hand. Over an area extending from just below the level of the wrist to the ends of all four fingers of this hand there is some atrophy of the small interosseous muscles with wasting of the extensor tendons over this area, both superficial and deep. The tendons also show some adhesions which prevent their normal contraction and extension, producing to a marked degree disability in the use of these four fingers and hand. Over the distal area of these fingers there is absolutely no response to electrical stimulae, a loss of feeling. The tendons show the first, degree of nerve degeneration supplying this area, little or no response to ferradic with only slight response to galvanic current. The normal hand shows contractions at 15 volts and 5 milliamperes. The injured hand responds only at 40 volts and 15 milliamperes. From the above X would conclude that this hand can be said to be negligible regarding the performance of any work requiring perfect co-ordination of muscles and that, as a result of the loss of sensation in the distal areas, the patient could easily unintentionally greatly suffer some damage of a serious nature when attempting to do electrical repair work. Condition permanent.”

Doctor Young also testified ás a witness:

“Regarding’ complete recovery, I think the chances are against it. This man I do not think will ever be much improved from the present condition, if any. The nerve, the peripheral nerve once destroyed by electricity, does not regenerate. I think that this man’s condition will be permanent With him, that he will be unable to do a fine type of work, with this hand, that requires ability to grasp and hold small objects, with any proficiency.”

He further testified that plaintiff lacked co-ordination of muscles; that co-ordination would likely not come back; that he also had a loss of sensation from the tips of the fingers; this he ascertained by testing him, “testing with different little things, then tapping him with the electric current, with his head turned, and there was no resistance or jerk when I applied a rather strong stimulant to the tips of the fingers.”

He states that he did not make his diagnosis from what the plaintiff told him but from his own examination; that plaintiff could do no fine work requiring the use of small instruments and at the same time requiring muscular strength and power; that one with plaintiff’s type of partial paralysis could not use a small screwdriver; that plaintiff had contraction of the tendons of all four fingers; that the contraction of the first finger is noticeable on examination but more easily determined by the electrical apparatus; that exercising the hand would not necessarily make it improve; that if the adhesion could be broken down by exercise the contraction would improve, but it is not possible to bring back the degenerated nerves; that he could <not tell that the burn was from the electricity except from what plaintiff told him; that the loss of sensation was confined to the tips of the fingers and from the dorsal surface only.

Asked:

“Is it always possible, Doctor, to determine accurately and definitely the extent of an injury to a man’s nervous system?”

He answered:

“Fairly accurately. We are able to locate lesions, and what nerves are involved, and what nerves are injured, whether motor or sensatory nerves.”

He further states that nothing was wrong with the nerves or muscles of plaintiff’s arm above the wrist.

* * * *
“Q. I will ask you, Doctor, if that condition Would have anything to do with his inability to perform electrical work?
“A. That would not, but the condition of the loss of sensation in the tips of the fingers, an4 we «have certain types and conditions of nervous condition where the patient has lost the sensation as to heat or cold, and you can place those parts in boiling water and they do not feel it, and here, not being able to receive sensation in the tips of the fingers, it would be possible to receive an electrical shock, when if in good condition would possibly have detected it.
“Q. On account of the loss of sensation?
“A. Yes, sir.
“Q. You tested the sensation with forty volts ?
“A. Yes, sir, no sensation there, could get no sensation there, got contraction of the tendons below there.
“Q. How far does the loss of sensation extend?
“A. Just the tips of the fingers, about half of one-quarter of an inch from the end.”

OPINION

Defendant argues that plaintiff’s demand is absurd; that the injury was only trivial, and that he is shamming. He does not, though, undertake to contradict either the plaintiff’s testimony or that of Doctor Young, who were the only two witnesses sworn.

On the day of trial, prior to the opening of it, it was agreed that the testimony of Doctor Collins might be taken out of court the following Wednesday. It was not so taken, though, but a report made by Doctor Collins dated July 30, 1924, was introduced in evidence.

This statement shows that, in the opinion of Doctor Collins, plaintiff was able to' return to work about August 1, 1924; that he was capable of doing the ' same work as before the accident; that the nature and extent of the injury were: “Burn of face and hand caused by electric spark. The burn was of first and second degree.” That the injury w'ould not be permanent and “finger will be stiff for a while; should be able to use hand satisfactorily by August 10, 1924.” '

The report further shows daily office treatment from June 20 to July 3, and treatment during July on the 5th, 8th, 16th and 20th.

This report was made on a printed form.

Defendant argues that Doctor Young never makes a positive statement; that his testimony is purely theoretical, and that, he uses the words, “most likely.”

We do not construe Doctor Young’s evidence as uncertain in respect of plaintiff’s condition. The words, “most likely,”' were only used in connection with the doctor’s statement as to the kind of burn plaintiff had received, viz., from electricity. He admitted he could not tell, except from what plaintiff said. The kind of burn, though, is established by plaintiff’s testimony and by Doctor Collins’ report.

Doctor Young’s testimony is not uncertain as to the atrophy of the interosseous muscles; as to the wasting of the extensor 'tendons, superficial and deep; as to the adhesions, preventing normal contraction and extension; these producing to a marked degree disability in the use of the four fingers and the hand.

Nor is he uncertain as to the loss of sensation in the tips of the fingers or as to nerve degeneration or want of muscular co-ordination.

The difference between the report of Doctor Collins and the report and testimony of Doctor Young is that the former states what Doctor Collins thinks will take place thereafter, whereas the latter states what did take place.

A doctor’s prediction as to when an injured hand will recover amounts to little or nothing as opposed to testimony given six months thereafter, showing, contrary to the prediction, that it had not recovered.

Plaintiff admits that he has some use of the hand, but the proof convinces us that its condition is such as to impair very seriously his ability to do the kind of work which for twenty years has been his occupation.

It also shows that, except for the time he worked for the defendant between the date of the injury and the 1st of August, when he was discharged, he earned only about $100.

We are satisfied that his earning capacity has been decreased more than $30 per week, and it was evidently on this basis that the lower court allowed compensation of $18 per week, being 60% of $30.

It is not shown exactly when he did resume work for the defendant after the accident, but the impression we get from the testimony is that very likely he did not suspend at all but that his work was not of the same kind as it had been, being merely in the nature of supervision.

He says (page 7);

“When did you return to work?
“I stayed there on the job until the 1st of August, not being able to do anything, just superintend the work.”

As to plaintiff’s motion for damages for frivolous appeal, this cannot be allowed. The appeal was not suspensive. Chaffe vs. Carroll, 35 La. Ann. 116; C. P. 907.

For these reasons the judgment of the lower court is affirmed.


author: REYNOLDS, J. CARVER, J.

text:
    No. 2333
    Second Circuit Appeal
    THOMAS M. MILLION v. W. K. HENDERSON IRON WORKS AND SUPPLY COMPANY
    (June 23, 1925, Opinion and Decree)
    (July 11, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 159, 159 (a).
    Where the evidence clearly shows that the injured employee suing under Section 8, Subsection 1 (b) of the Workmen’s Compensation Act No. 20 of 1914, is permanently, totally disabled to do work of any reasonable character, he is entitled to compensation for the period of his disability not to exceed 400 weeks.
    2. Louisiana Digest — Master'and Servant— Par. 180 (I); Appeal — Par. 512.
    Where eminent physicians testify as to the disability of an injured employee suing under the Workmen’s Compensation Act No. 20 of 1914, disagree in their diagnosis as the cause and probable duration of plaintiff’s condition, damages will not be allowed as for a frivolous appeal.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit brought by an injured employee for compensation suing under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    • Long & Crow, of Shreveport, attorneys for plaintiff, and appellee.
    J. S. Atkinson, Alex F. Smith, of Shreveport, attorneys, for defendant, appellant.
   STATEMENT OF CASE

REYNOLDS, J.

Thomas M. Million sues W. K. Henderson Iron Works and Supply Company for compensation under the Workmen’s Compensation Act at the rate of $20 a week during his disability, not exceecfing 400 weeks, for injuries alleged to have been sustained by him in an accident on August 29, 1924, arising out of and in the course of his employment by defendant. He alleges that:

“While lifting heavy iron machinery used in connection with the lathe with which he Was working, when his back and the muscles, ligaments, cords, nerves and tissues of the said back and in, near and about the same, were broken, strained, deranged, impaired and seriously affected, and, in addition thereto, there was a loosening near the sacro iliac joint, a tilting of some of the lumbar vertebrae; that, in addition thereto, the spinal cord, nerve eenter and nerve supplies were involved and impaired, and by reason thereof petitioner was thereby' wholly and totally disabled and is incapacitated to do or perform any kind of labor .of a reasonable character.”

He further alleges that at the time of the injury he was earning $43.20 a week.

He alleges that defendant had paid him compensation for seven weeks but had refused to make further payments.

He attached to his petition a contract between himself and his attorney whereby the latter is to receive one-third of whatever may be recovered in this action for his fees in the premises.

Defendant answered, admitting the employment, and that plaintiff’s weekly wage was $43.20, but denied that he was injured in the manner or to the extent alleged by him.

On these issues the case went to trial and there was judgment in favor - of the plaintiff and against the defendant for compensation at the rate of $20 per week during plaintiff’s disability, not to exceed 400 weeks, with legal interst on each payment from its maturity until paid, the first payment to be due August 29, 1924, less seven weeks’ compensation previously paid, approving the contract between plaintiff and his attorney and condemning defendant to pay all costs. Defendant appealed.

OPINION

The questions to be determined in this case are: Was plaintiff injured in the manner and to the extent claimed by him?

Plaintiff himself testified, page 2:

“Q. Now go ahead and explain the injury.
“A. Well, I was putting a jig on the machine to do some pipe fitting, and I had three negroes assisting me, and in putting it on the machine we got one side on the machine and had four on the same job; two were on the other side, and they; turned loose to get on the other side and get in the center of the machine, and three turned loose, which left the weight of the jig to come on me, which was between four and five hundred pounds, and it had to either fall or I had to hold it, so I held it.
(Page 3)
“Q. Well, what did that do?
“A. It hurt my back.
“Q. Whereabouts in your back did it hurt you?
“A. What I call the small of the back.
“Q. It hurt the small of the back?
“A. Yes, sir.
“Q. What did you do after that?
“A. I worked on the rest of the day and the next day I stayed there and tried to work; thought I had to do so; and tried to work — tried to work till Saturday, or from that Saturday till the following Thursday. I could be mistaken about it one day but I don’t think I worked but six days. I was off then for about a month, between three weeks and a month, then I went back and tried to work and worked four hours and since then I haven’t done anything.
“Q. Since then you haven’t done anything?
“A. No, sir.
“Q. Why not?
“A. I have not been able.”

Doctor S. C. Barrow testified, page 10:

“Q. Did you make an examination of Mr. Thomas M. Million?
“A. Yes, sir.
“Q. Well, what did you find?
“A. I examined Mr. Million at the request of Dr. S. L. Williams on September 26th. This was an examination at that time as to the low'er spine and his pelvis. The result of that examination was the report to Dr. Williams, and this examination shows a slight separation apparently in the sacro-iliac joint on the right, with a tilting of the fifth lumbar vertebrae to the left.
(Page 11)
“Q. Now, Doctor, you say you found two conditions existing there, two apparent conditions ?
“A. Yes, sir. Well, yes, all in one, but -
“Q. You spoke of them as two?
“A. Well, yes.
“Q. Well, what is the first?
“A. Well, there was a slight separation of the sacro-iliac joint on the right side with some tilting of the fifth'lumbar vertebrae to the left.”

Doctor J. D. Young testified, page 13:

“Q. Dr. Young, you examined Mr. Million here yesterday?
“A. I did.
“Q. Please state what you found?
“A. I found a condition which, upon pressure, marked pressure, on the small of the back in the region of the third, fourth and fifth verterbrae, that you have muscular spasms, that is, violent contractions, patient complaining of pain, and slight difference in the reflexes of the right and left leg; the reflexes of the left leg were not as active as the right. Upon marked pressure over the hip bone seemed to produce and did produce muscular spasms, that is, of the muscles of the limb; that pain was complained of by the patient. Prom an examination I made I diagnosed that there was some mathology due to pressure upon the conde acuna, in other words the horse’s tail, called horse’s tail, that is near the end of the cord, where the nerve makes its exit, and a lesion in this area would give you the type of reaction that he was suffering from.
“Q. Doctor, did you have the advantage of an X-ray report?
“A. Not until I got through with my' examination; got a statement from Dr. Barrow, got a report.
“Q. Was that report verified by what you found ?
"A. My findings agreed with the X-ray report.
(Page 14)
“Q. Doctor, what have you to say as to the permanency of this injury?
“A. That depends altogether upon the treatment that surrounds this patient; if he was operated upon and there was a fusion, I would say that the condition that I find would correct itself in a few months; then again the condition might, or would improve, provided the patient is put to complete rest, in eight months to a year.
(Page 15)
“Q. Doctor, the operation, an operation around the spine is involved, is hazardous to life?
“A. There is always the possibility of infection which would cause neuritis, which would be rather dangerous.”

Doctor Thomas Ragon, called on behalf of defendant, testified, page 22:

“Q. What examination did you make?
“A. I examined him where he complained, down in the back and several places around the body.
“Q. What did you find?
“A. Well, he flinches, as Dr. Young has spoken of, when there was pressure on the tail bone.
“Q. Would a normal person feel pain?
“A. I do not think a normal person would. I did not doubt but that he had pain there.
(Page 23)
“Q. You thought that he had pain there?
“A. I thought he had.
“Q. Did you connect that pain with anything revealed by the X-ray?
“A. I would not necessarily say at all, I think not; the X-ray man that took the picture showed the man was normal.
“Q. Did you examine the reflexes?
“A. I did.
“Q. What condition did you find as to .those?
“A. I thought that there was a little difference in the reflexes, neither one up to par.
* * * *
“Q. Prom your examination of the plaintiff here, do you think that condition is due, this diminished reflex is due to any injury back there?
“A. Well, it would be rather hard to say, because I do not think that the reflexes w’ere due to injury; I thought the injury rather increased the reflexes than otherwise.
(Page 26)
“Q. You think that Mr. Million can throw his stick away and do some work at this time?
“A. Well, I would not advise that; I would like to examine him more carefully before advising to do that, if he were my patient.
“Q. Would you give him some treatment?
“A. I think that I would.
“Q. The conditions existing there would yield to treatment?
“A. I think so.
“Q. What treatment would you give?
“A. Well, I think that he ought to have heat and . massage, and perhaps internal treatment, maybe a number of things, gradual exercise; with a careful examination I think that I could give treatment that would be helpful to him.
“Q. You don’t think that it' would be necessary to perform an operation on him?
“A. I don’t think so at all.
(Page 27)
“Q. Doctor, what conditions did you find to exist there that required treatment, did not see anything from the X-ray?
“A. Well, the back, the muscles along there are short muscles, and if those were strained there ought to be a certain amount of rest, even some support, some light plastic jacket covering that part, and in addition some local treatment.
“Q. In other, words, you would treat him for muscular troubles?
“A. Yes, sir, muscular and tendon troubles.”

Doctor J. E. Slicer, called for defendant, testified, page 39:

“Q. That is the point I am making. You have not seen that report since testifying about this case and you do not remember then what was shown?
“A. The thing that I remember is that there was some slight deviation of the bones from normal. It was of not enough consequence in my opinion to account for his trouble.
(Page 40)
“Q. All right. Now, Doctor, the prostrate there is more or less inflamed, isn’t it?
“A. Very much inflamed.
“Q. In an injury from lifting, would that affect the prostate?
“A. It could aggravate the injury that already existed.
“Q. Could an injury to the fifth lumbar account for having lighted up the prostate?
“A. Probably an injury to the sacro-iliac joint could.
“Q. Also account for having lighted up the prostate, could it?
“A. Yes, sir.”

The evidence in the record convinces us that the plaintiff was injured as he says he was, and according due weight to the testimony of the eminent physicians who testified in the case we are also convinced' that the injury sustained by plaintiff, either as a direct cause or by aggravating a malady that lay dormant in him prior to the injury, has produced total disability to do work of any reasonable character that may continue for a short time or possibly indefinitely.

Plaintiff has asked for damages as for frivolous appeal; but in view of the fact that eminent physicians disagreed in their diagnoses as to the cause of plaintiff’s condition and the probable duration thereof, there is reason to believe that defendant prosecuted its appeal in good faith, and therefore plaintiff’s demand on this score must be denied.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.

ON APPLICATION FOR REHEARING

CARVER, J.

Defendant’s counsel urge that we erred in basing our decision partly on the conclusion that by reason of an accident in the course of plaintiff’s employment a dormant malady was aggravated.

It is true that the decision states:

“We are also convinced that the injury sustained by plaintiff either as a direct cause or by aggravating a malady which lay dormant in him prior to the injury has produced total disability,” etc.

It was perhaps not exactly correct to say that the prostatic trouble which Doctor Slicer found had lain' dormant.

In our opinion, though, the gist of the matter is not the dormancy of the disease but the aggravation of it.

It is true that in the case of Behan vs. Honor, 143 La. 348; 78 South, 589, the disease stirred to activity had lain dormant, but we do not understand the court in that case to have said or implied that it was only dormant diseases that would fall under the compensation act if aggravated by an accident arising out of and in the course of the employment.

In Craft vs. Gulf Lumber Co., 151 La. 281; 91 South 736, a hernia was found by the court to be in process of development and an accident quickening and accelerating it was held to be compensable.

In “Workmen’s Compensation Acts,” a Corpus Juris Treatise by Donald J. Kiser, published by the American Law Book Company and designed to. form a part of Corpus Juris, the rule is laid down on page 69 as follows:

“Acceleration of a diseased bodily condition may constitute a personal injury, and an injury may be by accident, although it would not have been sustained by a perfectly healthy individual.”

Various decisions are cited in support of the text, amongst which are some where the disease accelerated was heart disease, a skin disease, arterio schlerosis, and alcoholism.

It seems to us that an accident arising out of and in the course of employment which aggravates an active disease to the extent of causing disability in one previously able to do hard work, is compensable as well as one which stirs to activity a disease previously dormant.

Besides this, though, we are satisfied from the testimony of the physicians quoted in our original opinion that the plaintiff’s injury is not confined to the prostate gland but that his condition is due in part at least to the separation of the sacro-iliac joint and the tilting of the fifth lumbar vertebra disclosed by the X-ray.

Rehearing refused.


author: ODOM, J.

text:
    No. 2345
    Second Circuit Appeal
    DAVID E. MIXON v. HUMBLE OIL AND REFINING COMPANY
    (June 23, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 160 (I); Appeal — Par. 625.
    The finding of the trial court in a Workmen’s Compensation case under Act No. 20 of 19*14, that there is no disability of the injured employee, being eminently correct, is affirmed.
    (The recent amendment of Section 8 of Act 20 of 1914, is Act 216 of 1924.)
    Appeal from First Judicial District .Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a case under the Workmen’s Compensation Act No. 20 of 1914, re-opened by the plaintiff after a year from the date of judgment bécause plaintiff claimed that his injuries were growing worse.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellant.
    E. W. & P. N. Browne, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

On November 29, 1922, there was judgment in the District Court awarding the plaintiff in this case compensation for forty-three weeks. It does not seem that any appeal was taken from that judgment. More than a year later; on February 4, 1924, an application was made by the plaintiff to reopen the case, alleging that he was still disabled to do work of any reasonable character and that instead of his wound getting better it was constantly growing worse; and he asked that the case be reopened for another trial and that ultimately he be granted compensation for 300 weeks, less the forty-three weeks granted him under the previous judgment.

There was no objection made by defendant to this procedure. It seems that all parties considered that plaintiff had a right to reopen the case if, as. a matter of fact, the testimony warranted such procedure.

The court ordered the defendant to show cause within seven days why the case should not be reopened. The case was set for trial, evidence adduced and the judge of the lower court refused to reopen the case; from which judgment the plaintiff has appealed.

On the trial of the application to reopen, . plaintiff was called as a witness and testified that the injury to his knee has not healed; 'that his knee is still stiff; that it swells at night; that he cannot stand on it; and that he has not been able to do any work since he received the injury; and he especially states that there has been no improvement since the last trial of the case.

He was asked if he had done any work at all since the case was tried in the District Court, and he said but very little; that he had tried to plow, but his hand gave out, and that otherwise he had not tried to do any work at all.

He called Doctor J. W. Faith, a physician who resides in Winn parish near the domicile of the plaintiff, and Doctor Faith testified that he had treated the plaintiff on a few occasions, and says that he sees no evidence of any injury to the knee at this time, except that the left knee, the one injured, is about a quarter of an inch larger in circumferance than the other knee. He says that the plaintiff probably suffers some pain, but on cross-examination he testified that his opinion that the plaintiff suffers pain is based entirely upon what plaintiff told him. He further states that he sees plaintiff “limping around” and that so far as he knows he has done no work. He says there is a “popping” in the knee, but that this does not signify injury, as such conditions are frequent even in perfectly normal knees.

Plaintiff also called as a witness Mr. J. V. Milam, Sr., a member of the Police Jury of Winn parish, who testified that the plaintiff had been keeping time for his uncle who has a grading contract on a public road in Winn parish and that he has also worked in a restaurant in Winnfield. He says that so far as he knows plaintiff has done no hard manual labor since the trial of the case in 1923.

Plaintiff took the stand in rebuttal and testified that he had worked in the restaurant only five days and that he found he could not stand up very long at a time.

The plaintiff, according to his testimony, is in good health and feels perfectly well all the time, except, he says, that he suffers pains in his left knee.

There were called as witnesses three physicians who reside in the city 'of Shreveport, all of whom made examinations of plaintiff either on the day of trial or just previously thereto, and they have expressed their opinion unqualifiedly that there is very little if anything at all the matter with plaintiff’s left knee at this time.

Doctor H. A. Durham, chief surgeon of the Shriners Hospital in the city of Shreveport, stated that in his opinion the plaintiff was making the most of a very trivial disability.

And he says, further;

“I feel disposed to say absolutely that this man should be working at the present time with all functional use of his knee if he so desired. I do not believe there is anything in that knee that is incompatible with full functional use.”
“There was no swelling, no inflamation, and no reason to suspect anything except that which could he found in any knee joint. In working the joint rapidly occasionally there would be a little clicking sensation which does not necessarily imply functional disability. You may have one in yours. I have in mine.”

The above testimony was given on the day of the last trial in open court.

Doctor L. C. Spencer, a physician and surgeon in the city of Shreveport, testified that he examined plaintiff on the day of trial. He testified that plaintiff told him that his knee cap had been broken and that he complained of stiffness and pain in the knee. But the doctor gave it as his opinion that the knee cap had. never been broken and that at this time no disability exists and that the plaintiff’s complaints are not well founded.

He says that he tried to examine plaintiff’s knee but that plaintiff was unwilling for him to do so, or rather he claimed that the examination was so painful that he could not stand it. He says, however, that he does not believe that that complaint is well founded, that he watched the plaintiff manipulate the knee; saw him bend it at different angles; and that so far as he could see the knee functioned normally.

He says that he measured the knee and found that it was the same size as the other; and he gave it as his opinion that the plaintiff had been using that joint, his reasons being based upon the fact that non-usage of any member causes the member to shrink and that there was no shrinkage about this joint. He says that the present condition of the left knee is well nourished and that the muscles are active and well developed.

Doctor Sidney L. Williams was called as a witness, and says that plaintiff’s knee is normal in size and in strength. He says that there seems to be a tenderness but there is no swelling, and that the stiffness in the knee has been overcome; and he says there is no injury to the joint at this time.

Doctor Williams was asked what condition regarding the joint and the nerves he found upon his examination on this date, and he said;

“That is hard to say. See no immediate evidence of injury to the joint, can go by the tenderness and the history of the case, and it is difficult to see just what the injury is at the present time, only what you get from the patient’s tenderness.”

It is perfectly apparent from the reading of Doctor Williams’ testimony as a whole that he is disposed to give the patient the benefit of every doubt and while he intimates that it is probable that there is some soreness in the knee and some slight disability yet a reading of his testimony as a whole convinces us that Doctor Williams is of the opinion that the disability, if any exists, amounts to practically nothing.

As stated, both of the other doctors in Shreveport are of the opinion that there is nothing, or practically nothing, the matter with the plaintiff’s knee.

The Judge of the District Court, in passing on the question'as to whether the case should be reopened, made the statement that in his opinion the plaintiff is greatly exaggerating his condition and that in his'opinion it would do no good to reopen the case.

After having read the testimony, we are convinced that the Judge’s conclusion was eminently correct.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the lower court refusing to reopen the case, be affirmed with costs.


text:
    No. 2376
    Second Circuit Appeal
    FRED D. MALICORD v. UNITED STATES SHEET AND WINDOW GLASS COMPANY
    (June 23, 1925, Opinion and Decree)
    (-, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 160 (I); Appeal — Par. 625.
    The finding of the trial judge in a Workmen’s Compensation case under Act No. 20 of 1914, as amended by Act 216 of 1924, that the injured employee was partially disabled to do work of any reasonable character being clearly cor-, rect, is affirmed.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. J. H. Stephens, Judge.
    Judgment affirmed.
    .Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

Plaintiff sues defendant under the Workmen’s Compensation Act for $18 per week during his disability, hot ex-' ceeding 400 weeks.

The defense is' that defendant has paid plaintiff all the compensation he is entitled to.

The District Judge allowed plaintiff compensation at the rate of $18 a week during disability, not exceeding 300 weeks, beginning July 26, 1923, less a credit of $828 to be satisfied out of the first forty-six payments due, with legal interest on each weekly payment from its maturity until paid. ■

• The fees of the attorney representing the plaintiff were fixed at one-fourth of the net amount recovered under the judgment.

Defendant appeals.

OPINION

Apparently the District Judge’s judgment is based upon Subsection (c) of Section 8 of the Workmen’s Compensation Act as amended.

Defendant contends that plaintiff’s compensation should be settled under Paragraph (e) in proportion to the schedule set out in Paragraph (d) of Section 8.

Defendant claims, and established by Doctor G. A. Caldwell, that plaintiff’s injuries could be reduced to the loss of his forearm if he would submit to the amputation of his forearm; but this has not taken place, and whether it shall or not is a matter entirely at the option of the plaintiff. This court cannot compel him to'submit to the amputation ev.en if it were of the opinion that it would be highly advantageous to him to do so; and the court must decide the case under the conditions that are shown to have existed at the time of the trial.

Plaintiff suffered a severe .cut on the right arm by a heavy piece of glass falling on his wrist, cutting four ligaments and causing an inhibition in the use of the fingers of the hand and causing him, he says, continuous pain.

At the time of the injury plaintiff was 47 years old and had never done any kind of w’ork except that of a glass cutter, a barber and a musician, and claims to have been totally disabled by his injuries from following any of these occupations.

On this point he testified, page 4:

“Q. Well, tell the court so it can know what you can do, how much do you lack closing your hand?
"A. An inch or an inch and a half; the first finger I can do better but I can't hardly use the others.
“Q. You can do better with that index finger than with the other three?
'“A. Yes, sir.
“Q. The other three you can close considerably closer?
“A. Yes, sir; always pain, though.
“Q. Where does it pain you?
“A. Right here. (Witness indicating.)
(Page 5)
■ “Q. Well, it pains you from something like about half-way to your elbow to the tip of your finger?
“A. Yes, sir.
* * * *
“Q. What kind of pain do you have?
“A. Just hurt all the way — I can’t describe — I am only one knows. I can’t tell what I have, because you wouldn’t believe if I tell you.
* * * *
“Q. Does it feel cold?
“A. Oh, yes, yes, cold; oh, yes, got to keep it under my arm, this way. (Witness demonstrating.)
(Page 6)
“Q. Is that all the time or is it just at intervals ?
■■ “A. Well, most all the time, most all the time, yes.
“Q. Can you follow either one of the occupations or jobs you used to follow, now?
“A. No, sir, I can’t follow.
(Page 8)
: “Q. What kind of hard labor can you do now?
“A. I don’t know; I can't do nothing at all.
“Q. Have you got any trade at hard labor at all that you can follow now?
“A. No, you have to have two good hands. I tried to go back to the factory and couldn’t do it.
(Page 11)
“Q. What have you been doing since you received this injury?
“A. Been living on my children.
* * * *
“Q. You have done no work at all?
“A. No, sir.
(Page 12)
“Q. Mr. Malicord, don’t you think it would be possible for you to do some kind of work; can’t you do some kind of a job?
“A. It is a question. I tell them in New Orleans if you give me job I try it, but they don’t need man with only om hand. I tell them I was willing to work, and you ask same question. I am willing to work if you give me job. I try.
(Page 16)
“Q. Mr. Malicord, this petition which you have filed states you will never be able to do work of any reasonable character. Don’t you think that you could do work in a store, for instance, selling merchandise?
“A. Well, I don’t know. Last week I tried to hammer a nail on board and hammer slip out of my hand and hit finger. I couldn’t do it. I always tried to do something with my hand. My name is work; always work for a living, and I am willing to work yet if anybody give me job. I can’t get job, nobody want one-handed man.
“Q. You don’t propose to sit back and do nothing all the rest of your life, do you?
“A. Sure not.
“Q. You expect to go to work?
“A. When I am able to work, yes, sir.
“Q. Don’t you think you will be able to do work of some kind?
“A. Well, they ask me that same thing in New Orleans and I tell them: ‘Give me job.’ I would try it, but you have got to have tw'o hands to get job, they don’t want cripple man, they want man with good arms, hands and good legs.
(Page 19)
“Q. You know how glass is shipped and labeled and how it is sold?
“A. Well, I don’t know, but I am like a monkey, if you show me the trick I might be able to do it.
“Q. Here is the proposition, Mr. Mali-cord.: I am not trying to trip you up, but you appear to be an intelligent man and your arm doesn’t appear to be injured much from just looking at it; you have a nice, neat-looking appearance, and appear to be quite an intelligent man. I ask you, don’t you think you can find some kind of reasonable work which you could do?
“A. I tell you now I never was a man that refused to work. I always worked all my life. I try to take care of myself and my family and until I got hurt I work all time I had work and try to keep busy all the time, but I tell you my hand gets cold and hurts me so bad sometimes I have to cry to myself. No use to joke with me about it, that never go with me. You give me chance, I try.”

Doctor G. A. Caldwell testified, page 21:

“Q. Doctor Caldwell, have you had occasion to examine the arm and wrist of the plaintiff, Fred D. Malicord, and if so .where and when, and please state your finding?
“A. I examined him at my office weeks ago — the date is on the report — I forget the exact date; but the findings were, briefly, that he gives a history of a cut on the right wrist slightly above the joint by a heavy piece of glass. An examination shows the scar where this cut was directly across the wrist, together with another long scar running up the inside of the forearm, starting from the wrist and running about a third up the arm; both of these are pretty w’ell healed and seem to be in good condition at the present time. The function of the wrist and hand, however, seem to be considerably impaired. The movement of the wrist joint itself is very good, but the movements of the fingers in bending down into the palm are considerably impaired and limited, the power to flex not being great enough to permit him to close one more than that much, that is, the tips of the fingers not coming within an inch or three-quarters of an inch of the palm. That makes it impossible for him to grip a small object, or grip anything sufficiently tight to hold it securely. He cannot grip a small object at all in that condition. In addition to that there is a certain amount of perspiration which is on one side; it perspires almost constantly on one side of the hand, more than on the other side, and the fingers on that side of the hand have some disturbance of sensation in them, as you try it out with pin pricks and other tests. You see, they are diminished particularly at the ends of the fipgers. The joints of the fingers in that area are somewhat thickened and enlarged. These things I have stated, I think, namely, the enlargement of the joints, the diminished sensation and the perspiring on that side of the hand, are indicative, as a rule, of nerve injury. Perhaps I shouldn’t say injury, but involvement of the nerves supplying these parts in some part of their course. In this case, considering all these symptoms were below the scar of the original cut, I presume that the nerve was impounded upon, or pressed upon at the point of the cut. It doesn’t necessarily follow that the nerve was divided or cut into. I think that the' cause of the disability in the hand is the cut. There were, unquestionably, according to the history and subsequent operative reports, some of the tendons cut, and some of these have united and some don’t seem to have completely united, and, in addition, there is perhaps an involvement of the medial and perhaps the long nerve, also to such an extent as to cause inhibition in the use of the fingers, and most probably would account for the pain that he complains of. He complains of constant pain, which is reasonable under these circumstances.
(Page 24)
“Q. As to the general appearance of the plaintiff, he is rather an intelligent looking man, is he not?
“A. Quite.
“Q. Apparently straightforward?
“A. Yes, quite.
(Page 25)
“Q. Doctor, is there any reason why a man in the condition of this plaintiff should sit up and do nothing for the rest of his life?
“A. The only reason — and that can’t be determined correctly — is the factor of pain. If a part is hurting constantly it renders him incapable of using that part, and if the pain were quite severe it naturally would interfere with his work.
“Q. Doctor, couldn’t that pain be stopped by amputating that arm at the elbow?
“A. Yes.
(Page 26)
“Q. Well, reasonably light work?
“A. He could probably use it gripping down as far as it went, for a while, but if he has the pain he complains of and his hand got cold, he wbuld have to quit.
(Page 27)
“Q. Doctor, I will ask you from your examination of this plaintiff if there aren’t numerous kinds of work he could do, for instance, in a dry goods store, handling light boxes — you are familiar with the man who sells you socks and ties and things like that — is there, any reasonable work — is there any reason why this man couldn’t do that work?
“A. I believe he does have enough pain —he could work at it probably a short time —but after that perhaps — he could hand down boxes once or twice or perhaps three or four times, but the factor of pain would soon enter into it and stop him from using it any more. What he could do with the other hand naturally would not be affected further than the use of both of them.
“Q. He says that hand gives him pain when he is not working?
“A. It very probably does, yes.
“Q. Are you prepared to testify whether he has any pain when he is not using the arm?
“A. No, I can’t say whether he feels pain or not except by comparing it with other cases and by the involuntary things that he does which indicate that he has real pain and discomfort.
“Q. The pain about which you are testifying — your testimony is based entirely on what he told you, is it not?
“A. Entirely on what he told me, together with the way he protects the hand involuntarily or subconsciously, you might say, the way he protects it when he is not being noticed or doesn’t know that he is.”

There is no contradictory, evidence of this testimony; and from all of the evidence we are convinced that the injury suffered by plaintiff produced partial disability to do work of a reasonable character, and therefore that the finding of the District Judge was correct.

ON APPLICATION FOR REHEARING

CARVER, J.

In the brief of defendant’s counsel on application for rehearing, they say:

“We think that in view of the facts which have been shown above that if the plaintiff is entitled to recover his recovery should be based on subsection (c) of section 8 of the act of 1922 which covers an injury producing partial disability and fixes recovery at 60% of the difference between the wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability, not exceeding 300 weeks.”

This is the subsection applied in our decision, which was based on a reduction in plaintiff’s earning capacity of at least $30.00 a week; the $18.00 a week allowed being 60% of $30.00.

The evidence satisfied us that the reduction in earning capacity was more than this. Plaintiff says that at the time of the accident he was earning ten or twelve dollars a day and for six or seven years had never made less than $10.00 a day.

The accident wholly unfited him to follow either of the sole occupations he had ever followed and though he was able to do some kind of remunerative work we are satisfied from the evidence that he cannot earn as much as $30.00 a week, which will be a reduction of at least $30.00.

Rehearing refused.


text:
    No. 2387
    Second Circuit Appeal
    MARCEL LEGRAND v. UNITED STATES SHEET AND WINDOW GLASS COMPANY
    (June 23, 1925, Opinion and Decree.)
    (June 23, 1925, Supplemental Opinion.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant-Par. 154, 159.
    Section 8, Subsection 1 (e) of the Workmen’s Compensation Law, Act No. 20 of 1914, has no application to an injury which causes disability to work, such as an injury to a knee-cap which disabled the injured employee.
    2. Louisiana Digest — Master and Servant— Par. 159, 159 (a).
    Where the injured employee was at first permanently disabled and later on par- ' tially disabled to do work of any reasonable character, he is entitled under the Workmen’s Compensation Law, Act No. 20 of 1914, to recover 65% of the wage he received at the time of the accident during the period of total disability and 65% of the difference between what he earned at the time of the injury and what he is able to earn at the time of the trial for the period of disability, not to exceed 300 weeks.
    3. Louisiana Digest — Master and Servant — ■ Par. 160 (k).
    The maximum fee in the opinion of the court allowed attorneys in Workmen’s Compensation Cases under Act No. 20 of 1914, is 1-3 of the amount recovered.

      SUPPLEMENTAL OPINION.
    4. Louisiana Digest — Master and Servant— Par. 160 (e), 160 (I).
    Where the court in its opinion erroneously fixed compensation under Act 216 of 1924, at 65% of the plaintiff’s wages whereas it should have been fixed under Act 43 of 1922, at 60%, it can be corrected by supplemental opinion without a rehearing.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit by an injured employee for compensation under Workmen’s Compensation Law, Act' No. 20 of ,1914.
    There was judgment for plaintiff and the defendant has appealed. Plaintiff has answered the appeal asking that judgment be increased.
    Judgment increased and affirmed.
    Julius' T. Long,' of Shreveport, attorney for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff was employed by defendant in a factory at a weekly wage of $24.30. On December 5, 1923, while at work, he received an injury to his right knee which, he claims, seriously and permanently injured its usefulness; and he brings this suit to recover compensation at $18 per week for a period of 300 weeks. . In the District Court he was awarded compensation at $14.58 per week for 100 weeks, presumably under subsection (e) of section 8 of the workmen’s compensation act. The defendant has appealed and plaintiff has answered the appeal and asked that the judgment be amended by allowing him compensation for 300 weeks, less a credit allowed in the District Court.

OPINION.

It seems that on December 5, 1923, while plaintiff was at his work he received an injury to his right knee which rendered him totally disabled to do any work for some length of time, when he was injured, physicians examined his knee and put it in a cast where it remained for twenty-one days. Upon removing the cast, plaintiff was told to go to the office of the ' physician four or five days later for an examination; and as he was making an effort to get out of an automobile he says his knee “snapped” again. This was very painful and plaintiff was not able to walk for some time. After he got able to get around on crutches he went back to the office of the physician, Doctor Gorton, who was employed by defendant company, and Doctor Gorton took plaintiff to the office of Doctor Caldwell where it was decided that an operation was necessary. The plaintiff was taken to the hospital where the operation was performed by Doctor Caldwell. Doctor Caldwell said that he did not operate at first on account of the gravity of the operation and the time it takes for the patient to be in the hospital and in bed and the seriousness of going into the joint.

(Page 34):

He says the purpose of the operation was to remove part of the cartilage from the knee joint, for the reason that this cartilage had repeatedly slipped and at each slipping the joint became very much swollen and was absolutely useless as the patient had testified he had to be in bed.

Doctor Caldwell testified that .the cartilage was loose at each time and was slipping and that the slipping of ‘the cartilage injured the joint. He says that at the time he operated the joint looked perfectly natural on the outside but that this cartilage was loose, and that the portion of the cartiláge that he removed was about an inch and a half long, a half inch wide and about an eighth of an inch thick. The removal of this cartilage greatly relieved plaintiff and he was soon able to walk.

Now the question is, whether the injury and the removal of the cartilage has resulted in any injury to plaintiff’s knee and, if so, what is the extent of the injury and what compensation is due him?

Doctor Caldwell says that he examined-plaintiff about eight weeks after th§ operation and that apparently the operation was a complete success. He says that at the time he examined him he was using the knee perfectly well, so much so that he expressed the desire to go to work, and that he bent the knee in all directions and caused him to stop, and that plaintiff appeared to be in good condition.

He says that there is pain for several months after such an operation hut that it is not a “disabling pain”. His attention was called to the fact that plaintiff s knee • was cold, and he was asked what caused that, and he explained that it was probably caused by the severance of a small nerve during the operation. He thinks that amounts to but very little, however.

Doctor Gorton says that the plaintiff went to him about the 10th of May and told him he was well and wanted to go to work But that he told plaintiff to wait until June 1st. He says that plaintiff seemed to be well.

Doctor G. H. Cassity was sworn in rebuttal and testified that he examined the plaintiff on the day of the trial and that the movements of the knee did not seem normal and caused pain. He said that he made two examinations in the last three days, and was asked to give his findings’ and he says:

“One of the noticeable features, there is a difference in the temperature of the skin of the two limbs. .The skin of the injured knee is- perceptibly colder than the other limb.”

He said that the circulation was not yet established and that plaintiff does not have the proper strength in the flexor and ex-tensor muscles of the leg; that it seems to hurt him if it is bent, and that he handles it with a certain amount of caution.

And on page 54 he said:

“Well, my opinion is that he suffers some pain in that knee and that functionally it is not as good as the other knee.”

He says, further, that in a large percentage of the cases of this kind the removal of cartilage from the knee causes no permanent injury to the knee, although in the case of a few it seems that there are more or less permanent injuries'.

The case was tried on part on December 12, 1924, Doctor Cassity was asked to make an examination of the plaintiff in the presence of the court. Counsel for defendant . objected on the ground that he had dismissed his expert witnesses and that he would have them present when Doctor Cassity made the examination. The court postponed further trial of the case until February 12, 1925, in order that defendant might have its "witnesses present. Doctor Cassity was again placed on the stand on the latter date, but the record does not show that any of defendant’s witnesses were present; at least they did not testify.’

Doctor Frank H. Walke was appointed by the court to examine the plaintiff previous to the trial. His report is in the record and his conclusions are stated by him to be as follows:

“From other cases of like character which I have treated, the pain is hanging on longer than usual. It seems that it should have been well long before this time, but from observation I feel sure that by the first of July, which will be some four months after the operation, that the knee will be free of pain.”

He also says that, from a medical standpoint, the knee is all right.

The plaintiff says he cannot do any work which requires lifting; that he cannot stoop down and get up without difficulty-; and that while he can walk, he soon gives out; and that his knee gives him pain all the time, even while he is sitting.

J. D. Anderson, who lives in the house with plaintiff, says that he seems to give out quickly and don’t seem to get around quite as lively as before and that he “complains of giving out”. He says that plaintiff can do no hard work.

S. E. Eaves testified that plaintiff cannot stoop down and has to be very careful all the time.

Counsel for defendant say, in brief:

“Dr. Caldwell, Dr. Walke, and Dr. Gorton testify that plaintiff’s knee is practically all right. We believe that the true facts in this case are that the plaintiff has some little pain and, perhaps stiffness in his knee joint, which will disappear with use. We do not believe that he suffers more than one-fifth of the loss of his leg.”

We are convinced that plaintiff is partially disabled to do work of any reasonable character. He suffers some pain, there is some stiffness in the knee joint, he .cannot move it perfectlyt and he cannot lift heavy objects. These conditions no doubt interfere with his ability to do the kind of work which his is accustomed to doing and which he will probably be able to find to do.

The lower court was convinced that the plaintiff was injured for it granted to him compensation of $14.58 per week for 100 weeks. The fact that it fixed the period over which the payments should run at 100 weeks indicates that it held that the case falls under Subsection (e) of Section 8 of the workmen’s compensation Act.' If that be true, we .cannot agree with our learned brother on that point. That section of the statute has no application. to an injury producing disability to work.

See Mack vs. Legeai, 144 La. 1017, 81 South. 694.

Plaintiff is partially disabled to do work and therefore his case does not fall under that section.

Our conclusion is that he was totally disabled for a while and that at the time of the trial he was partially disabled. He is therefore entitled to full compensation for the time he was totally disabled; and 65% of the difference between the wages he was earning at the time of the injury and the wages he was able to earn thereafter during his disability, not, however, exceeding 300 weeks, the number of weeks of total disability to be deducted from the 300 weeks (Subsection (c) of Section 8).

Doctor Caldwell says that he saw plaintiff on May 10th and that he wanted to go to work.

Doctor Gorton says he advised him not to go to work until about June 1st.

Our conclusion is that he was totally disabled until about June 1, 1924, or a period of about 25 weeks, and we ■ fix the period of total disability at 25 weeks, dating from December 5, 1925.

Plaintiff was receiving at the time of his injury $24.30 per week. He is therefore entitled to receive $15.79 per week for 25 weeks.

It is difficult to fix the amount that he is now able to earn. He was engaged in painting and repairing stoves and made as high as $18 per week. His partner says he -could not make more than $12 per week net. We think it proper, under the testimony, to hold that he can now earn $12 per week. He was earning $24.30 before he was injured. He is now entitled, therefore, to $7.99 per week or 65% of the difference during disability, not beyond 300 weeks, less, however, 25 weeks during which time he is granted compensation for total disability, to begin at the end of the total disability period.

The defendant should, of course, have credit for all payments made.

For the reasons assigned, it is therefore ■ordered, adjudged and decreed that the judgment appealed from be amended so as to read as follows:

It is ordered, adjudged and decreed that plaintiff, Marcel LeGrand, do have judgment against and recover from the defendant United States Sheet & Window Glass Company for weekly compensation for total disability in the sum of $15.79 per week for 25 weeks, beginning December 5, 1923, and weekly compensation for partial disability in .the sum of $7.99 per week during disability, not, however, beyond 300 weeks; less the 25 weeks for which he is granted compensation for total disability; the payments for partial disability to begin at the end of the total disability period. All deferred payments to hear interest at the rate of 5% per annum from the time they became due. Defendant to have credit for all payments previously made.

The fees of the attorney representing the plaintiff are fixed at one third of the amount recovered.

Defendant to pay all costs.

SUPPLEMENTAL OPINION.

The plaintiff was injured on December 5, 1923. '

The act in force at that time was Act No. 43 of 1922, which fixes compensation in cases like this at 60 per cent of the difference between wages at the time of the injury and wages which the injured employee is able to earn thereafter.

Our decree is incorrect in that it awarded compensation at 65% per cent of the difference in wages.

It is now ordered that our former decree be corrected and amended so as to read as follows:

It is ordered, adjudged and decreed that plaintiff, Marcel LeGrand, do have judgment against and recover from the 'defendant United States Sheet & Window Glass Company for weekly compensation for total disability in the sum of $15.79 per week for twenty-five weeks, beginning December 5, 1923, and weekly compensation for partial disability in the sum of $7.38 per week during disability, not, however, beyond 300 weeks less the twenty-five weeks for which he is granted compensation for total disability; the payments for partial disability to begin at the end of the total disability period. All deferred payments to bear interest at the rate of 5% per annum from the time they became due. Defendant to nave credit for all payments previously made.

The fees of the attorney representing the plaintiff are fixed at one third of the net amount recovered.

Defendant to pay all costs.


author: REYNOLDS, J.

text:
    No. 2389
    Second Circuit Appeal
    E. CAS FLAHERTY v. PARKERSBURG RIG AND REEL COMPANY, ET AL.
    (June 23, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— 159. 160 (j).
    The evidence clearly shows that the injured employee, suing under Section 8, Subsection 1 (b) of the Workmen’s Compensation Law, Act No. 20 of 1914, is permanently disabled to do work of any reasonable character due to falling from a scaffold which caused a sprained back, and injured his sacroiliac joint. He can recover compensation during the period of his disability not exceeding 400 weeks.
    2. Louisiana Digest — Master and Servant— Par. 160 (k).
    In the judgment of the court, attorney’s fees in workmen’s compensation cases are limited to a maximum of one-third of the amount recovered.
    Appeal from First Judicial District Court of Louisiana, Párish of Caddo,., Hon. E. P. Mills, Judge.
    This is a suit by an injured employee for compensation under the Workmen’s Compensation Law, Act No. 20 of 1914.
    There was judgment for plaintiff and plaintiff appealed.
    Judgment increased and affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellant.
    Smitherman, Tucker & Mason, of Shreveport; Gordon Boswell, of New Orleans, at torneys for defendants, appellees.
   REYNOLDS, J.

This suit is a suit by E. Cas Flaherty to recover from Parkersburg Rig & Reel Company and the Ocean Accident & Guarantee Corporation, Limited, in solido, judgment for' $20 per week ’during his disability, not exceeding 400 weeks, as compensation under the Workmen’s Compensation Act for an injury received by him by failing from a scaffold and spraining his back and injuring his sacro-iliac joint.

Defendants do not deny that plaintiff received serious injury but allege that they have paid him $20 per week from the time of the accident up to the time of the filing of this suit, amounting in all to $520, and allege that compensation should be allowed him only for 52 weeks.

On these issues the case was tried and judgment was rendered in favor of plaintiff and against defendants for compensation at the rate of $20 per week for 250 weeks, and plaintiff appealed.

OPINION.

Under the evidence it is clear that plaintiff is injured so as to produce permanent total disability to do work of any reasonable character.

And under subsection (b) of Section 8 of the Workmen’s Compensation Act, plaintiff is entitled to collect, under the evidence in this case, $20 per week during the period of.his disability, for not over 400 weeks; and the judgment appealed from must be amended so as to read accordingly.

Under the decisions of this court the approval of compensation of attorneys for services rendered in cases of this character has been limited to one third of the net amount recovered by the plaintiff, and to allow the attorneys in this case one-third of the $520 paid by defendants to plaintiff before this suit was filed would be, we think, unfair to the plaintiff who, the evidence shows,. is a man of limited education.

(Transcript, page 7):

“Q. Are you a man of any education?
“A. No, sir, I never got above the seventh grade.”

For the above reasons, the judgment of the lower court is amended and recast so as to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of .the plaintiff, E. Cas Flaherty, and against the defendants, Parkersburg Rig & Reel Company and The Ocean Accident & Guarantee Corporation, Limited, in solido, for compensation at the rate of $20 per week during the period of his disability, not exceeding 400 weeks, beginning August 15, 1924, with interest at the rate of 5% per annum on each weekly payment from its maturity until paid; less a credit of $520 already paid by defendants to plaintiff.

It is further ordered, adjudged and decreed that the contract between plaintiff and his attorneys, Long & Crow, be approved up to one-third of the net amount of this judgment.

It is further ordered, ’ adjudged and decreed that defendants pay all costs.


text:
    No. 2395
    Second Circuit Appeal
    R. C. THOMAS v. RADIO OIL CORPORATION
    (June 23, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— 159, 160 (e).
    Where an injured employee applies under the Workmen’s Compensation Act, Section No. 20 of Act No. 20 of 1914, as amended by Act 38 of 1918, to have the judgment rendered over a year previously reviewed and modified, he is enti tied to no additional compensation if the evidence shows that he receives as much as he did at the time that the accident happened even though there may be a slight disability.
    2. Louisiana Digest — Master and Servant— Par. 159, 160 (e).
    The judge of the District Court is Justified .in refusing to re-open a Workmen’s Compensation case brought under Section 8, Subsection 1 (c) and Section 20 of Act No. 20 of 1914 where the evidence shows that the injured employee is receiving as much wages as he received at the time of the injury and, therefore, suffering from no disability on which to base compensation.
    (For reference, See Section 20 of Act 20 of 1914, as amended by Act 38 of 1918, Editor’s note.)
    (The recent amendment of Section 8 of Act No. 20 of 1914, is Act 216 of 1924.)
    Appeal from First Judicial District Court of - Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is an application to re-open a case brought by an injured employee suing under the Workmen’s Compensation Act No. 20 of 1914, for compensation.
    District judge refused to re-open the case and plaintiff appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellant.
    , Barnette & Roberts, of Shreveport, at-. torneys for defendant, appellee.
   ODOM, J.

The plaintiff in this case received an injury to his hand while at work for the defendant corporation and brought suit for compensation, alleging that he was partially disabled to do work of any reasonable character, and asked for compensation at $18.00 per week for 300 weeks.

The case was tried and on the 21st day of July, 1923, the court rendered judgment granting his compensation for total, disability during eight weeks and for partial disability for forty-four weeks.

The plaintiff did not appeal from this judgment but, on the contrary, collected the compensation awarded him under the judgment.

On the 24th day of January, 1925, the plaintiff made application to the District Court to have the judgment above referred to ' reviewed and modified, alleging that more than a year had elapsed since the rendition of the first judgment, during which time no improvement was made of his hand and that he was still permanently partially disabled to do work of a reasonable character, and asked that the court grant him compensation for an additional 250 weeks.

Defendant answered, denying the allegations of the petitioner to reopen, and further plead that the- case is now concluded:

“That the court rendered judgment after trial and that plaintiff acquiesced in said judgment, and that all his claims and rights are precluded thereby.”

Under the view which we have taken of this case on its merits we do not find it necessary to pass on the question as to whether the plaintiff has a right to reopen this case after inore than one year had elapsed from the rendition of the original judgment.

The testimony convinces us that while it is possible some slight disability exists at this time, yet plaintiff is receiving as much wages as he received prior to his injury. He is now drawing wages amounting to $6.00 per day for seven days in the week and, according to the testimony, that is as much as he was receiving prior to the accident.

The plaintiff on being interrogated as to the present condition of his hand stated that while he might be able to do as much work of any kind as he formerly did, yet he would not like to do so. He states that his hand is not quite as strong as it was formerly and that there is some slight stiffness in the middle finger, but that so far as ordinary work is concerned, he can do about as much now as he ever could

He was asked:

“Can you do manual labor with the hand without it giving you pain?”

And he answered:

“Well, it depends upon the kind of work. There is some work like handling pipe where I can get a full grip on it; it don’t amount to much; but when lifting anything and it presses down on the palm of the hand here it hurts.”

He states that he works seven days in the week and receives for his work $6.00 a day, which is as much as he received prior to his injury.

It is therefore very obvious that it would be useless to reopen this case. He is suffering from no disability, and we know of no law under which we could grant him compensation. He has already been granted compensation by the lower court for fifty-two weeks, which compensation he has accepted.

The judge of the lower court refused to reopen the case, and we think properly.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed, plaintiff to pay costs.


text:
    No. 2396
    Second Circuit Appeal
    COY W. CATES v. BAIN-BEARD WELDING AND MACHINE CO.
    (June 27, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 159.
    Where, in a workmen’s compensation case, under Act No. 20 of 1914, the evidence clearly shows that plaintiff has had steady work since the accident, and has been able to earn more than he earned at the time of the accident, he is not entitled to any additional compensation.
    2. Louisiana Digest — Master and Servant— Par. 159.
    Where the evidence in a workmen’s compensation case under Act No. 20 of 1914 clearly shows that the plaintiff’s injury, hernia, is no worse now than it was at the time of the former trial, he is clearly not entitled to additional compensation under the act.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    This is a suit brought by an injured employee under the Workmen’s Compensation Act No. 20 of 1914 to review the judgment previously rendered and take evidence of present alleged disability.
    Defendant filed an exception of no cause of action and plea of res adjudicata.
    Judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellant.
    J. S. Atkinson, Alex F. Smith, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

This is a suit by Coy W, Cates against Bain-Beaird Welding & Machine Company to review the judgment rendered in suit No. 34,376 on the docket of the First Judicial District Court of Louisiana, Parish of Caddo, entitled Coy W. Cates versus Bain-Beard Welding & Machine Company, on July 31, 1923.

He asks that judgment be modified so as to allow him compensation at the rate of $10 per week during his disability, not exceeding 400 weeks.

Defendant filed an exception of no cause of action.

Defendant also filed in this court a plea of res adjudicata.

Reserving their rights under their exception of no cause of action, defendants answered denying liability.

On these issues the case was tried and there was judgment in favor of defendant and plaintiff appealed.

OPINION.

On February 16, 1923, plaintiff sued defendant for $8.10 per week on the ground that he had sustained a hernia while lifting a heavy load in the course of his employment by defendant and that in consequence his earning capacity had been reduced from 30 cents per hour for a day of ten hours or $18 per week before the injury to $4.50 per week after the injury.

He was given judgment for $10.62 per week for eight weeks and for $150 for the cost of an operation.

After more than a year elapsed from the date of the rendition of that judgment he filed this suit on the ground that his hernia had grown worse and his capacity to earn wages had diminished since that judgment was rendered.

He testifies, page 3:

“Q. About how much are you able to make now for the few days that you can work?
“A. I am not able to earn more than $1 per day.”
(Page 4):
“Q. How much per day did you 'make out there?
“A. I made $2 per day.
“Q. Isn’t it a fact that you made $3 per day?
“A. It is not.”
(Page 5):
“Q. Did you hold a job on the machine out there for about a year — and a regular job — out there for one year?
“A. About a year.”
“Q. Well others "who were feeding the same kind of a machine that you were feeding were getting $3?
“A. Two dollars was all they paid me.”
(Page 9):
“Q. What percentage of time did you work while you were. at that mill, Mr. Cates?
“A. Well I worked there pretty nearly regularly all the time because I had to do it to live.”

L. L. Fuller, time-keeper of the Perfection Oak Flooring Company, the mill at which plaintiff worked, testified, page 20:

“Q. What is -your occupation, Mr. Fuller?
“A. Time-keeper for the Perfection Oak Flooring Company.”
“Q. Please state when Mr. Cates started to work out there?
“A. May 18, 1923.
“Q. What was his rate at that time?
“A. Thirty cents per hour and working on a ten-hour basis that is $3 per. day.
“Q. How long did he work at that rate?
“A. A little less than a month — from May 18th — no, less than two months to June 4th.
“Q. After that what was his rate?
“A. ' Thirty-five cents per hour making $3.50 per day.”
* * * *
(Page 22):
“Q. How long did he work at that rate?
“A. Until he left the service on May 30th, 1924.”

From this evidence we are convinced that plaintiff had steady work since the accident for about a year and that he has been able to earn more than he was able to earn before the accident.

As to the contention that his hernia has grown worse.

Doctor G. H. Cassity, a witness for plaintiff, testified, page 12:

“Q. Doctor, did you examine the plaintiff again today or yesterday?
“A. It has been about a week ago.
“Q. What do you find his condition to be as regards the last trial?
“A. I find his condition practically the same as it was the first time.
“Q. Do you find any enlargement or shrinkage?
“A. Not enough so that I could notice . it — if any.”

Doctor A. P. Crain, an eminent physician of Shreveport, testified, as witness for defendant, page 17:

“Q. Have you had occasion to examine Mr. Cates recently?
“A. Yes, sir.
“Q. When was that?
“A. I helievé it was yesterday.
“Q. Please state to the court what the results of your examination were?
“A. I found a small bubonocele — that is, the beginning of hernia, just about like I found before. I did not see much difference if any.”
(Page 18):
“Q. What is bubonocele?
“A. That is the beginning of hernia; before the hernia has gotten down into tue sack — where it protrudes and is beginning to push the peritoneum out of the interior ring.
“Q.. Do you think that this hernia is any worse than it was before?
“A. As far as I can see, no, sir.”

From this evidence we are convinced that plaintiff’s injuries are no worse now than they were at' the time of the former trial.

Under our findings of fact it is unnecessary for us to pass upon defendant’s exception of no cause of action or plea or res adjudicata.

For these reasons it is ordered, adjudged and decreed that the judgment of the lower court be affirmed.


text:
    No. 2394
    Second Circuit Appeal
    E. A. GOREE v. ATLANTIC OIL PRODUCING COMPANY
    (June 27, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Master and Servant— Par. 160 (j).
    The. burden of proof is on the plaintiff, an injured employee suing under the Workmen’s Compensation Law, Act No. 20 of 1914, to show that the accident happened in the course of, and arising out of his employment.
    2. Louisiana Digest — Master and Servant— Par. 160 (j), 160 (I).
    Where the trial judge erroneously held that the injured employee suing under the Workmen’s Compensation Law, Act No. 20 of 1914, had not discharged the burden of proof that the accident occurred in the course of, and arising out of, his employment the appellate court will reverse the decision.
    ON APPLICATION FOR REHEARING.
    3. Louisiana Digest — Master and Servant— Par. 160 (e), 160 (i), 160 (I).
    Under Section 18, Subsection 4 of the Workmen’s Compensation Law, Act No. 20 of 1914, if the court believes that further testimony as to the extent of plaintiff’s injury and also plaintiff’s condition since the trial will be in the interest of justice and equity it will remand the case for a new trial.
    (For reference, Section 8, Subsection 1 (b), of Act 20 of 1914.)
    Appeal from First Judicial District Court, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a suit by an injured employee for compensation under the Workmen’s Compensation Law, Act No. 20 of 1914.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed. On application of rehearing case remanded for a new trial.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellant.
    J. G. Palmer, of Shreveport, attorney for defendant, appellee.
   REYNOLDS, J.

Plaintiff in this case sues to recover judgment for $7200 pay-, able in 400 weekly installments of $18 each for a strain in his body, and the nerves, ligaments, muscles and vitals in and about his back, alleged to have been received by him on the 16th day of August, 1923, while he was doing work and labor in the course of his employment with defendant.

And in a supplemental petition filed on December 2, 1924, he claims that on May-15, 1924, he was further strained and injured in and about the area of his back wherein he was originally injured on the 16th day of August, 1923.

Defendant denied liability on the ground that plaintiff’s condition was in no wise caused by any injury suffered by him while in the course of his employment by it.

On these issues the case was tried and there was judgment in favor of defendant and plaintiff has appealed.

OPINION

Plaintiff sues defendant for compensation for a strain he says he suffered on August 16, 1923.

He did not “lay off” for the balance of the day on which he says he suffered the strain but stuck around and drew full wages for the entire day.

On October 10, 1923, he returned to work for defendant at the same wages, without having made any claim on it for compensation for the injuries alleged to have been suffered on August 16, 1924, and continued to work for defendant at the same wages until about May 15, 1924, on which date he claims to have suffered a second strain while hé was working with one Shorty Byers. He did not call Shorty Byers as a witness, but relies entirely on his own testimony to prove the circumstances under which he sustained the alleged strain.

Plaintiff testified, page 13:

“Q. Now who was present when this alleged second injury took place, at the time?
“A. Shorty Byers, the truck driver.
“Q. Where is he now?
“A. I don’t know where he is.
“Q. Have you seen him lately?
“A. I haven’t seen him in a good while.
“Q. Have you seen — have you made any effort to see him?
“A. ‘No,, sir. ■
"Q. You made no effort to secure his testimony at this trial?
“A. No, sir.”

Plaintiff did not complain to Mr. Elliott, the foreman of defendant under whom he was working at the time of the alleged injury. Plaintiff testifies that he did, but Elliott swears that he did not. We accept Elliott’s denial as true. It impresses us as being perfectly frank and free from any effort or desire to suppress any facts within his knowledge. Plaintiff’s state; ment that he complained to Elliott is unsupported.

Plaintiff rests his entire case upon his own testimony and his evidence is' at variance and in direct conflict with the testimony of Doctors Kerlin and Crain, two physicians of Shreveport of high standing and unquestionable reputation for truth and ability. Accepting the testimony of these doctors as worthy of belief, we conclude that plaintiff is entirely mistaken as to the cause of his alleged present condition. The testimony of both Doctor Kerlin and Docton Crain has in it the ring of truth and convinces us that they are frank and fair and qualified to speak as medical experts. Each of these doctors gives it as his unqualified opinion that plaintiff is suffering from local infection — probably bad teeth or bad gums.

Doctor E. L. Sanderson was introduced as a witness by plaintiff, but his testimony is based entirely upon the history of plaintiff’s case as given to him by the plaintiff on the day of trial, and these representations were not in accordance with the history of plaintiff’s case that plaintiff gave to Doctor Kerlin at the Charity Hospital at a time unsuspicious.

The Workmen’s Compensation Act was passed in the interest of Workmen injured in the course of their employment, but the burden of proof is on the complaining workman to adduce evidence that makes it at least probable that the injury he received in the course of his employment has some connection with the ailments he complains of.

The District Judge, who heard the witnesses and observed their manner of testifying, did not think the plaintiff had discharged the burden of proof resting on him as to the cause of the disability at the time of the accident.

As to the time lost by plaintiff immediately after he received the first strain in his back, August 16, 1923, he testified, page 2:

“Q. Strained your back?
“A. Yes, sir, very badly, too.
“Q. What did you do for it?
“A. I did not do anything the balance of the day. I went in and told the gang-pusher I was hurt and wanted to go home and he said, ‘No, you stick around and make the rest of the day,’ and that evening I went horns and come out the next morning. He said, ‘You come out the next morning and you won’t do much, you can keep up with the tools.’ So I went out about nine o’clock. I told him I had to go to a doctor, and he said, ‘Go in and make out the accident report and go to the doctor.’ So, I did, went to Dr. J D. Baucum.
“Q.. You went back to work then after that?
“A. Yes, sir, seven weeks afterwards, on the 10th of October.
“Q. On the 10th'of October?
“A. Yes, sir.
“Q. Now, you laid off several weeks, did they pay you your compensation for that several weeks?
“A. They didn’t pay me anything.”

Plaintiff testified on cross-examination that he was not claiming anything for this lost time because he went to work after-wards, but as we understand his testimony he was only giving his interpretation of his rights under the law. We do not think it was his intention to Waive any of his rights to claim compensation for this lost period of time.

This testimony of plaintiff’s is corroborated by the report of Mr. S. E. Elliott of the accident filed in the record.

Under this testimony we think the plaintiff is entitled to judgment for $18 per week for seven weeks from August 22, 1923, with five per cent per annum interest on each payment from the time it became due.

For these reasons it is ordered, adjudged and decreed that tlie judgment of the lower court be reversed, and it is now ordered, adjudged and decreed that E. A. Goree do have. and recover judgment against Atlantic Oil Producing Company for one hundred and twenty-six dollars, payable in seven weekly installments of $18.00 each, beginning August 22, 1923, with interest at the rate of five per cent per annum on each installment from the time it became due until paid, and all costs in both courts.

ON APPLICATION FOR REHEARING

CARVER, J.

We have re-examined the record in this case and are not satisfied to pronounce final judgment in its present condition. Neither the doctor who first treated plaintiff after his first alleged accident nor the doctors who treated him in Hot Springs nor Shorty Byers who, he says, was with him at the. time of the second alleged accident, testified in the case.

Doctor Kerlin stated that he had a record at the Charity Hospital of the history .given by plaintiff and Would look it up. It was not produced, though.

Plaintiff testified that he had told the doctors at the Charity Hospital of the two alleged accidents. Doctor Kerlin, though not very positive, testified he did not think plaintiff had mentioned the injuries.

This Charity Hospital record, the testimony of Shorty Byers and that of the other doctors who treated plaintiff will probably shed a good deal of light on the question, namely, the cause of plaintiff’s disability.

It is likely, too, that the progress of plaintiff’s ailment since the last trial will materially assist the court in arriving' at a proper determination of that question.

Ordinarily a rehearing would have to be granted and a new trial ordered on such rehearing. We think, though, that Subsection 4 of Section 18 of the Workmen’s Compensation Law, being Act No. 20 of 1914, warrants us in ordering the new trial without previously rehearing the case in this court. That subsection reads in part as follows:

“The judge shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure other than .as herein provided. The judge ' shall decide the merits of the controversy as equitably, summarily and simply as may be.”

It is accordingly decreed that the judgment originally rendered herein and the judgment of the District Court be set aside, and that the case be remanded for a new trial in the District Court.