Opinion
No. CA-5450.
December 22, 1986. Writ Denied February 13, 1987.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE LORRAINE WINGERTER, J.
James J. Durio, Marilyn R. Cohen, Metairie, for defendant-appellee.
Wilson M. Montero, Jr., Montero Roberts, Metairie, Rudolph R. Schoemann, New Orleans, for plaintiff-appellant.
Before SCHOTT, GARRISON and KLEES, JJ.
This case was previously before this court and remanded. 451 So.2d 1239 (La.App. 4th Cir. 1984). In plaintiff's worker's compensation suit the trial court had awarded a lump sum of $5,000.00. We held that the remand was required for a proper adjudication as to what benefits plaintiff was entitled to. On remand the trial court awarded plaintiff $4,890.00 for temporary total disability for thirty weeks at $163.00 per week and $1,496.00 for medical expenses. Plaintiff has appealed seeking an award for total and permanent disability or $163.00 per week for five hundred weeks.
The facts are detailed in the previous opinion. They disclose that plaintiff developed a permanent lung condition which was disabling, but the cause of the condition and the extent of his disability were in dispute. By making the award the trial court necessarily found that plaintiff's condition was work related. But the trial court's award of $163.00 for thirty weeks for a permanent disability has no basis in the compensation law. Plaintiff is entitled to either five hundred weeks for permanent total disability under LSA-R.S. 23:1221(3) (as written at the time in question) or one hundred weeks for serious permanent impairment of a physical function under R.S. 23: 1221(4)(p).
The evidence does not support an award for permanent total disability. Plaintiff had the burden of proof and relied on the testimony of Dr. Brown. His conclusion that he was permanently totally disabled was contradicted by Dr. Shames who examined plaintiff six months later and found him capable of driving and working at a desk. The trial judge had a second opportunity to make an award for permanent and total disability and declined to do it. Implicit in this decision is a resolution of the conflicts between the physicians and an evaluation of plaintiff's testimony both adverse to his position.
Nevertheless, since plaintiff has proved a serious permanent impairment of his lung function he is entitled to compensation at $163.00 for one hundred weeks as in Scott v. Ryan-Walsh Stevedoring Co., 447 So.2d 1260 (La.App. 4th Cir. 1984).
Accordingly the judgment appealed from is affirmed but amended to award plaintiff compensation benefits of $163.00 per week for one hundred weeks with legal interest on each payment from the date due until paid.
AMENDED AND AFFIRMED.