Blythe v. J. H. Askew & Union Indemnity Co.

STATEMENT OF THE CASE REYNOLDS, J. In this case Sion T. Blythe seeks judgment against J. H. Askew and Union Indemnity Company under the Workmen’s Compensation Act for $18.00 per week for such period as his disability may last, not exceeding 300 weeks, on the ground that on July 7, 1923, he was working for defendant, J. H. Askew, in a hazardous employment at a weekly wage of $56.00, and that on that date he .received an injury by having his foot crushed, thereby ^producing partial disability to do work of any reasonable character. Defendant denied liability on the ground that it had paid plaintiff’s medical bills to the amount of $199.00 and had paid him $403.71 which, he alleges, was all the compensation due plaintiff. On these issues the case was tried and there was judgment in favor of plaintiff for compensation at the rate of $6.00 per week for 300 weeks, less the amounts previously paid him. Plaintiff has appealed. OPINION Under the evidence it is shown that the plaintiff, at the time of the injury complained of, was earning $56.00 per week, and at the time the suit was brought he was earning $1.50 a day. The evidence shows that his foot was badly hurt and that the injury was still producing partial disability to do work of any reasonable character. Plaintiff testified, page 3: “Q. What did you do from the day you got hurt until the day you filed this suit?. “A. Well, I haven’t done anything because Dr. Wolfe didn’t never turn me a-loose finally until I come over here. “Q. Is the foot any better, is it showing any improvement or has it shown any improvement in the last two or three months? “A. Why it has improved some but then it is still sore in here. (Page 4) “.(Witness indicating) I can walk on it a little but it is stiff and still hurts me and as far as my shoes, I have to get two numbers bigger than I used to get on account of them swelling. “Q. Can you do the heavy work you .used to do; the oil field labor? “A. No, sir.” John Lee testified, page 9: “Q. Is he able to do heavy work? “A. No, sir; he wasn’t doing any work because he wasn’t able to do the heavy work and that is the reason he wanted to get on the farm, he told me.” Doctor M. L. Adair testified, page 9: “Q. Will you read that to the stenographer so that he can put it in the record? “A. The upper and lateral phase of the left foot show no fracture, orthritis pus on the first metatarsal bone, the arch is fallen, otherwise negative.” Doctor J. E. Slicer testified, page 11: “Q. And you estimated the disability to the foot as twenty-five per cent? [417] “A. Yes, sir; that was on December 20. * * * * “Q. Well, will you examine and say how much use he has of it now? (Witness complying with request of counsel.) “A. I still think he has twenty-five per cent disability. (Page 13) “Q. What causes it, could it be entirely the result of a heavy timber falling on the foot? “A. Well, an injury like that could cause it.” The District Judge allowed plaintiff compensation at the rate of $6.00 per week during disability for not over 300 weeks. We think his finding correct as to the number of weeks .during which plaintiff is entitled to have compensation; but as to the amount of compensation he is entitled to- during this period the Workmen’s Compensation Act (Subsection c of Section 8) provides: “For injury producing partial disability to do work of any reasonable character, sixty-five per centum of the difference between wages at the time of injury and wages Which the injured employee is able to earn thereafter during the period of disability, not, however, beyond three hundred weeks.” Hence the amount of compensation plaintiff is entitled to is $18.00 per week during his disability, not exceeding three hundred weeks. Our learned brother of the District Court concluded that plaintiff’s disability was only twenty-five per cent, as shown by the testimony of Dr. Slicer. But our Supreme Court, in Sweeney vs. Black River Lumber Co., 150 La. 1061, said: “The difference between the wages at the time of an injury and the wages which an injured employee is able to earn thereafter constituting the measure of compensation for partial disability under Act No. 20 of 1914, Section 8, Subsection 1 (b), should not be determined upon the opinions of physicians or surgeons as to the extent by which plaintiff’s physical powers or functions have been reduced.” Under this authority the amount allowed plaintiff must be increased to $18.00 per Week. Plaintiff has attached to his petition the contract between himself and his attorney, under which it is provided that the attorney shall receive as his fee fifty per cent of the amount recovered in this suit. In decisions of this court heretofore rendered we have held that one-third of the amount recovered in such a suit was the maximum fee allowable and we see no reason for departing from this rule in the present case. It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to read as follows: It is therefore ordered, adjudged and decreed that the plaintiff, Sion T. Blythe, do have and recover judgment against J. H. Askew and Union Indemnity Company in solido for compensation at the rate of $18.00 per week during disability for a period of not exceeding 300 weeks, the first weekly payment beginning July 14, 1923, with legal interest on each payment from the time it became due until paid, less credit for the sum of $403.71 paid March 26, 1924. It is further ordered, adjudged and decreed that the contract between plaintiff and his attorney be approved to the extent of not exceeding one-third of the net amount recovered under this judgment. Defendant to pay all costs of this suit.