McBride v. Natural Gas & Fuel Corp.

WEBB, J. Plaintiff, William C. McBride, while in the employment of defendant, Natural Gas & Fuel Corporation, sustained an injury in which his lower jaw was fractured, resulting in some retrusion of the lower jaw and facial disfigurement, and the loss of all of his lower and two of his upper teeth, which disabled him for a period of eight weeks, for which period he was paid the maximum compensation of twenty dollars per week, but plaintiff having resumed his work after the period of disability, at the same wages as he received before the accident, defendant refused to pay further compensation, and plaintiff instituted suit for additional compensation, and -judgment being’ rendered in his favor for the maximum weekly com-pensation of twenty dollars, for a period not exceeding one hundred and eight weeks, beginning on August 4, 1927, with legal interest on the weekly payments from maturity, subject to a credit of one hundred sixty dollars, compensation paid during the period of disability, defendant appeals from the judgment, urging that the court erred in allowing the maximum weekly' compensation, and in fixing ’ the period of compensation at one hundred and eight weeks. It is conceded that the loss of the teeth was a serious, permanent impairment of a physical function within the meaning of paragraph 16, subdivision (d), subsection 1, section 8 of the Employers’ Liability Law (Act No. 20 of 1914, as amended by Act No. 85 of 1926), but it is contended that, due to a malformation, or retruding lower jaw, plaintiff did not have normal ability to chew his food before the accident, and that the retruding jaw caused some facial disfigurement, and that those [514] facts should be considered in determining the extent of the impairment of the physical function resulting from the loss of his teeth, and of the facial disfigurement noticeable after the accident. The evidence does not indicate that plaintiff, had any trouble in easing, or that there was any noticeable disfigurement of his face prior to the accident, and although it may be that the malformed jaw may render it impossible for the impairment resulting from the loss of the teeth to be remedied, to the usual extent by the use of false teeth, such condition would not be of any significance in determining the extent of the impairment of the function resulting from the accident, and as the evidence does not show that the malformed or retruding jaw caused any noticeable disfigurement of the face which became noticeable after the accident, we do not think the original malformation could be a factor, in determining the extent of the disfigurement. The trial court saw the plaintiff and was in a better position than we are to determine the extent of the facial difigurement, and the evidence showing that the impairment of plaintiff’s ability to eat, as the result of the accident, can only be remedied to a very limited extent, we cannot say that the court erred in allowing the maximum weekly compensation; but in view of the right to compensation, coming under paragraph 16, subdivision (d), which provides that the period of compensation shall be one hundred weeks, and the provision of paragraph 18 of the same subdivision, which provides for the deduction of any payments made for disability where compensation is allowed under subdivision (d), the period of compensation should have been for one hundred weeks, subject to credit of one hundred sixty dollars, or a deduction of eight weeks, for compensation paid during the period of disability (Wallace vs. Natural Gas & Fuel Corporation, 8 La. App. 614). It is therefore ordered that the judgment appealed from be amended, fixing the period of payment of compensation for a period not exceeding one hundred weeks, less eight weeks, the payments beginning on September 29, 1927, and bearing legal interest from maturity, and that as thus amended the judgment is affirmed, plaintiff to pay cost of appeal.