July 18, 1974. Rehearing Denied September 10, 1974. Writ Granted October 25, 1974.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE GERALD P. FEDOROFF, J.
Orlando G. Bendana, New Orleans, for plaintiff-appellee.
Polack, Rosenberg Rittenberg, Franklin V. Endom, Jr., New Orleans, for defendant-appellant.
Before SAMUEL, STOULIG and MORIAL, JJ.
Plaintiff filed this suit against her employer, the Orleans Parish School Board, for total and permanent disability benefits under the Louisiana Workmen's Compensation Act. The defendant answered, admitting plaintiff's employment and rate of compensation, but denying the accident sued upon, involving plaintiff's teeth, seriously or permanently disfigured her or caused the impairment of a physical function.
After a trial on the merits, there was judgment in favor of plaintiff, awarding compensation for loss of a physical function at the rate of $30 per week for 100 weeks, subject to a credit for compensation previously paid, plus appropriate interest. The defendant has prosecuted this appeal from that judgment.
The accident occurred on July 7, 1972 while plaintiff was employed as a custodial worker for the defendant. A file cabinet, which she and a co-worker were attempting to move, tilted and struck her in the mouth. The defendant sent plaintiff to the offices of Drs. Houston, Roy, Faust and Ewin where she was examined and treated by Dr. A. J. Axelrod. Dr. Axelrod sutured plaintiff's lip and referred her to Dr. Don. L. Peterson, a dentist.
Dr. Peterson examined plaintiff, took x-rays, and made dental impressions. He noted her upper left and upper right central incisors were loose, the alveolar tissues were swollen and bleeding, and there was a slight fracture in the labial plate of the alveolar bone which caused complaints of pain. He also observed considerable destruction of this bone in the area where the teeth were imbedded. Plaintiff had no back teeth and suffered from periodontal disease. Dr. Peterson concluded her teeth generally were in poor condition.
With the aid of an electric vitality tester, Dr. Peterson decided that both upper central incisors were non-vital as a result of the trauma. He recommended the two teeth be extracted and replaced by either a removal or a fixed bridge. Since he regarded the latter as more satisfactory, plaintiff allowed him to extract the two teeth and install this type of dental prosthesis.
Dr. Peterson felt the fixed bridge installed by him restored and improved the functioning of plaintiff's teeth, especially in view of their state of deterioration. In his opinion the function was at least as good, and probably much better than it had been prior to the accident in suit. He conceded, as a matter of common sense, that artificial teeth are not as good as sound, natural teeth.
Plaintiff also was examined by Dr. August M. Hochendel, a professor of dentistry at the Louisiana State University dental school. The examination took place after the prosthesis had been installed. It was this doctor's opinion there was no loss of function as a result of the restoration; he said the function had been improved by the dental work. Dr. Hochendel's testimony was in agreement with that of Dr. Peterson in that both concluded some deterioration of plaintiff's fixed bridge and some maintenance problems would occur in the future. However, Dr. Hochendel also stated that because of the pyorrhea the bone support of all of plaintiff's teeth had decreased approximately 60% and the remaining upper teeth probably will last longer because of the work done by Dr. Peterson.
At trial in the lower court and in this court plaintiff made and makes no claim under the general compensation provisions of the compensation statute. As her injury does not fall within the specific partial or permanent loss schedule of that statute, if she is to recover she must do so under R.S. 23:1221(4)(p), which reads:
"(4) In the following cases the compensation shall be as follows:
(p) In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and as in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks." LSA-R.S. 23:1221(4)(p).
Our jurisprudence is that a determination of what constitutes a serious, permanent impairment of the usefulness of a physical function under the quoted provision of the statute is a question of fact to be determined by the court. The record before us clearly indicates the bridge work improved plaintiff's functional capability when compared with her natural teeth, which were not in good condition at the time of her accident because of periodontal disease. Accordingly, we conclude she did not sustain a serious and permanent impairment of a function, and consequently she is not entitled to compensation therefor.
It is argued that plaintiff nevertheless is entitled to compensation under the quoted provision on the theory that loss of the two front teeth is a serious permanent disfigurement as a matter of law.
The statute allows additional compensation "where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired." Thus, under the provision there is no distinction between a determination of disfigurement and a determination of impairment of the usefulness of a physical function. If one requires a factual determination the other also must require a factual determination. In our opinion both are questions of fact to be determined by the court.
The word "disfigure", in its general and popular use, means simply to blemish or spoil the appearance or shape. The only evidence in the record suggesting that any disfigurement results from plaintiff's loss of her two upper teeth is contained in the testimony of plaintiff herself. Even this testimony is weak, since plaintiff merely stated she felt she had been disfigured as a result of the loss. However, she also said those of her friends who commented told her she looked "good" and she mentioned no one who said anything to the contrary. And during the examination by Dr. Hochendel she told that dentist she was pleased with her appearance.
Civil Code Article 14 reads: "The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words." LSA-C.C. Art. 14.
The American Heritage Dictionary of the English Language (1973), page 377.
On the other hand, the medical testimony is that there is not only no disfigurement but that the prosthesis has improved plaintiff's appearance. In addition to the periodontal disease, prior to the accident her upper and lower teeth had protruded and there had been a split or opening between the two front teeth. Both medical experts testified plaintiff now shows teeth that look more normal and esthetically better than had been the case before the accident.
Plaintiff urges several cases in support of her argument that the loss of her teeth, even though replaced by more attractive artificial ones, constitutes disfigurement as a matter of law. She cites Odom v. Atlantic Oil Producing Co., in support of this contention. The statement of the nature and effect of the injuries sustained by the plaintiff in the Odom case leaves much to be desired. However, a fair reading of that decision, which involved loss of portions of fingers and other injuries in addition to the loss of three bottom teeth, shows the court reached the conclusion that the loss of three teeth was compensable on a finding of fact and not as a matter of law.
See also Davis v. Waterbury's Inc., footnote 1.
Plaintiff also relies on Landry v. Liberty Mutual Insurance Company, in which compensation was awarded for a sightless eye which was lost and replaced by an artificial one. The Landry case and the case before us are substantially different. While Landry's eyeball was slightly clouded because of scar tissue from previous trauma, it was not especially noticeable, particularly at a distance greater than three feet. Moreover, the prosthetic eyeball gave that eye the appearance of being wider open than the remaining sighted eye, and the prosthetic eyeball lacked the normal side-to-side and up-and-down movements formerly possessed by Landry's sightless natural eye. In short, the artificial eye fairly and properly looked artificial. Because it was much more disfiguring than the sightless natural eye had been, the court found as a matter of fact that it was a serious, permanent disfigurement.
The trial judge gave partial reasons for judgment in open court in order to clarify the fact that the judgment in favor of the plaintiff was "based on the fact that loss of teeth is a loss of function . . ." Although he examined plaintiff's face and mouth during the trial, he made no mention whatever of disfigurement. We are satisfied that if there had been any disfigurement, he would have made some mention of it. Our conclusion is that, within the meaning of the statutory provision, the plaintiff sustained no serious, permanent disfigurement as a result of her injury.
For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment in favor of the defendant, Orleans Parish School Board, and against the plaintiff, Earlis M. Jenkins, dismissing said plaintiff's suit; plaintiff to pay all costs in both courts.
MORIAL, J., dissents with written reasons.
The plaintiff, Earlis M. Jenkins, a custodial employee of the defendant, Orleans Parish School Board, sued for total and permanent disability under the Louisiana Workmen's Compensation Act. LSA-R.S. 23:1021 et seq. After trial, the district court awarded compensation for loss of a physical function at the rate of $30.00 per week for 100 weeks, subject to credit for compensation previously paid plus legal interest on each past due installment from due date until paid. From this judgment the defendant has taken this suspensive appeal.
The plaintiff was injured on July, 7, 1972 while employed as a custodial worker for the Orleans Parish School Board. In the course and scope of her employment, plaintiff and a co-worker attempted to move a file cabinet. The cabinet tilted and struck Miss Jenkins in the mouth cutting the outside of her upper lip. At the direction of the defendant, the plaintiff went to the medical offices of Drs. Houston, Roy, Faust and Ewin where she was examined and treated by Dr. A. J. Axelrod. Dr. Axelrod sutured plaintiff's lip and sent her to Dr. Don L. Peterson, a dentist.
Dr. Peterson examined Miss Jenkins and after making X-rays and cast tests (study models or impressions) noted that her upper left and upper right central incisors were very loose, the alveolar tissues were very swollen and bleeding, and she had a slight fracture in the labial plate of her alveolar bone causing intense pain. He observed considerable destruction of Miss Jenkins' alveolar bone in which the teeth were imbedded. He noted that the plaintiff had no posterior or back teeth (seven teeth in the upper arch as opposed to fourteen which is normal) and suffered from periodontal disease, and as a result, her teeth generally were not in good condition. Tests performed by Dr. Peterson with an electric vitality tester indicated that both teeth were non-vital. As a result of the trauma, Dr. Peterson recommended that the teeth be extracted and restored. He explained to Miss Jenkins that there were two methods of restoring lost teeth, either by a removal bridge or fixed bridge and, in his opinion, the latter method would have the most satisfactory result. Miss Jenkins followed Dr. Peterson's advice and had him install the recommended dental prosthesis, namely, a fixed bridge.
The plaintiff testified that at times the bridge hurts "so bad * * * I have a mind to get them took out." She testified that since the installation of the bridge food has had no taste and she experiences discomfort when she drinks cold liquids.
Defendant relies heavily on the testimony of Dr. Peterson and Dr. August M. Hochendel, a professor of dentistry at the Louisiana State University dental school to support its contentions.
Dr. Peterson testified that the fixed bridge he installed restored if not improved the functioning of plaintiff's teeth, but that artificial teeth are never as good as the natural teeth. He further stated that some people have more hypersensitive teeth than others, and the possibility existed that the plaintiff did experience discomfort she complained of which could persist for a period of some weeks or months.
Dr. Hochendel examined plaintiff at defendant's request after the prosthesis was installed. In his opinion the dental work probably increased the ability to function and there was no loss of function as a result of the restoration.
Drs. Peterson and Hochendel testified that there would probably not be any deterioration of plaintiff's fixed bridge or any maintenance problem.
At the conclusion of the trial the district court stated:
"Okay. Let me say this for the record: I am not entirely certain, but I feel that I will ultimately find, as a matter fact, that these false teeth, within medical terms, do as well as her old teeth did. I think her complaints of the pain are not substantiated by the medical and I am probably going to reach the issue in the case of whether or not Davis versus Waterbury's 145 Southern Second, 1953, [Davis v. Waterbury's Inc., 145 So. 569 (Orl.App. 1933)] is still the law. Frankly, I am of a mind to think that the loss of teeth, per se, is a loss of function, but I'm going to review these cases particularly Odom, [Odom v. Atlantic Oil Producing Co., [ 162 La. 556] 110 So. 754 (La. 1926)] and see if I am correct in that supposition, which at this point, is nothing but supposition and I will have to go to the library and read all of these things, but I wanted to state this for the record, because if I find for plaintiff and the appelate [appellate] court reads this they are going to know that I find it based on the fact that loss of teeth is a loss of function, no matter how successful is the prosthesis."
Defendant contends that LSA-R.S. 23:1221(4)(p) does not authorize the payment of weekly compensation benefits for the serious and permanent impairment of the usefulness of a physical function where the usefulness of such function, i. e. the use of teeth, has been restored, if not improved; alternatively, if the loss of two teeth, per se, constitutes a serious and permanent impairment of the usefulness of a physical function, but no such impairment exists as a factual matter, a workmen's compensation claimant should be entitled only to the minimum weekly benefit provided by law.
"In cases not falling within any of the provisions already made [i. e. for disability or partial or permanent loss of a specific member], where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and as in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks." (emphasis supplied)
Workmen's compensation awards for the loss of teeth have been considered by our courts in several cases beginning with Odom v. Atlantic Oil Producing Co., 162 La. 556, 110 So. 754 (1926) and in the succeeding cases: Wallace v. Natural Gas Fuel Corporation, 8 La.App. 614 (1928); McBride v. Natural Gas Fuel Corporation, 9 La.App. 513, 119 So. 722 (La.App. 2nd Cir. 1929); Smith v. L. H. Gilmer Co., 11 La.App. 336, 123 So. 451 (La.App. 2nd Cir. 1929); Davis v. Waterbury's Inc., 145 So. 569 (Orl.La.App. 1933); Sadler v. May Brothers, Inc., 185 So. 81 (La.App. 1st Cir. 1938); Goins v. Shreveport Yellow Cabs, 200 So. 481 (La.App. 2nd Cir. 1941); Macaluso v. Schill-Wolfson, 56 So.2d 429 (Orl.La.App. 1952); Fruge v. Hub City Iron Works, 131 So.2d 593 (La.App. 3rd Cir. 1961); Daigle v. Blasingame, 162 So.2d 351 (La.App. 3rd Cir. 1964); Golden v. Starns-McConnell Lumber Corporation, 172 So.2d 78 (La.App. 1st Cir. 1965) writ refused, 247 La. 716, 174 So.2d 130 (1965); Eaves v. Louisiana Cypress Lumber Company, 208 So.2d 380 (La.App. 4th Cir. 1968), amended on other grounds, 253 La. 741, 219 So.2d 771 (1969).
Citing Davis supra, as authority, defendant contends that the loss of a tooth (teeth) which has been replaced is not the serious permanent impairment of a function contemplated by LSA-R.S. 23:1221(4) (p), absent an in fact determination that a function is impaired and relies on the language in Davis, 145 So. at p. 570:
"That case [Odom] is apparent authority for the view that the loss of a tooth, in itself, constitutes an impairment of a physical function. If the statute required that any impairment of a physical function made it necessary that compensation be allowed therefor, and that the degree of the impairment should only be taken into consideration in determining the amount of the allowance, we would have no right to deny plaintiff recovery for the loss of the tooth. But that case, Odom v. Atlantic Oil Producing Co., [ 62 La. 556, 110 So. 754 (1926)] does not hold that in any event the loss of one tooth is compensable under the act, but merely that the impairment of a physical function, is serious and permanent, entitles the sufferer to additional compensation, and, as we have said, although we can well imagine that in other situations the loss of even one tooth might result in serious impairment, we find nothing in the record here to justify our holding that such has been the case."
Since Davis, but absent any reference to it, by the same organ of the court in Macaluso, supra, succeeding cases in making an award for loss of teeth have properly made a factual determination in considering whether the loss of a tooth (teeth) is a serious permanent impairment of a function. However, as I point out below, Odom said more than the Davis court attributes to it. Odom was not decided exclusively, but secondarily on the ground of serious impairment of a function. Our jurisprudence, though Davis incorrectly read Odom, has properly not stood for the proposition that loss of teeth which have been restored is per se a serious permanent impairment of a function.
" function * * * the action for which person or thing is especially fitted, used, or responsible for which a thing exists * * * bodily or mental action * * * the normal and specific contribution of any bodily part (as a tissue, or organ) to the economy of a living organism * * *" Webster's Third New International Dictionary (1971 ed.). " function to perform its special work or office * * *." Steadman's Medical Dictionary " function * * * The special, normal, or proper action of any part or organ. * * *" Dorland's Illustrated Medical Dictionary, W. B. Saunders Company, 24th ed. Function thus means more than mere existence, it means a quantitative accomplishment. The dental testimony is that the front teeth are used to bite and not chew; that plaintiff's bite improved with the prosthesis.
The record clearly indicates that the bridgework improved plaintiff's functional capability when compared with her natural teeth that were not in good condition because of periodontal disease. On the basis of this record I also would conclude that plaintiff did not sustain a serious and permanent impairment of a function. Nevertheless, plaintiff is entitled to a compensation award for the loss of teeth under that clause of 23:1221 (4) (p) which provides, "* * * where the employee is seriously permanently disfigured about the face or head, * * *."
Subsequent to the plaintiff's injury in Boyer v. Crescent City Paper Box Factory, Inc., 143 La. 368, 78 So. 596 (1918) the Compensation Act was amended to provide the coverage of LSA-R.S. 23:1221(4)(p). In Boyer a woman employee was scalped by machinery while in the employ of the defendant, but her capacity to work was not affected, and she successfully persuaded the court that the Compensation Act afforded no coverage for her loss and obtained a substantial damage award in tort.
Act No. 243 of 1916.
It cannot be refuted that the amendment was occasioned by the injury in Boyer v. Crescent City Paper Box Factory, Inc., supra. Therefore, I can reach no other conclusion than that it was the intention of the legislature to extend the coverage provided under the Act by the omnibus provisions of LSA-R.S. 23:1221(4)(p). That provision has as its object to provide for an award under the Act regardless of capacity to work and irrespective of the duration of the disability. Therefore, LSA-R.S. 23:1221(4)(p) is not strictly compensatory, but in the nature of a tort remedy for a personal injury not affecting earning capacity or ability to work. Washington v. Independent Ice Cold Storage Co., 211 La. 690, 30 So.2d 758 (1947); Barr v. Davis Bros. Lumber Co., 183 La. 1013, 165 So. 185 (La. 1936); Wilson v. Union Indemnity Co., 150 So. 309 (Orl.La.App. 1933).
In enlarging coverage to "* * * cases not falling within any of the provisions already made [i. e., for disability or partial or permanent loss of a specific member], where the employee is seriously permanently disfigured about the face or head, * * *" the provision, in effect, declares the loss of a member or organ of the face or head, for which no provision is made under the schedule of specific injuries, is compensable as a matter of law. Where any physical member or organ of the anatomy (body) not included in the schedule of specific loss, is lost, or seriously permanently disfigured, such loss or disfigurement is covered by the omnibus provisions of LSA-R.S. 23:1221(4)(p). A front tooth (teeth) is a member of the body, or if not a member of the body, it is a member and/or organ of the face or head which forms a part of the body. "Tooth" comes within the import of the word "member" in common acceptation. To hold that teeth are not members or organs of the body would, it appears to me, be splitting hairs. It would be likewise to hold that the amendment did not cover the loss of teeth, though restored by prosthesis, merely because it did not specifically include "loss of any member or organ" about the face or head. For the loss of two front teeth, even though there be no resulting disability, and the teeth are replaced by prosthesis, the injured employee is ipso facto entitled, under LSA-R.S. 23:1221(4)(p) of the Act to compensation. This is in effect, an offset for what the employee might have recovered in a tort action, the right to pursue, which plaintiff has been deprived of by the Workmen's Compensation Act.
See 4 Blackstone Commentaries 205 in which the classic definition of the offense of mayhem includes the "foretooth" as a "member."
It is unnecessary that the loss impair the appearance of the plaintiff. In laymen's language, to disfigure is "to make less complete, perfect, or beautiful in appearance or character," (emphasis supplied) and disfigurement, in law as in common acceptation, may well be something less than total and irreversible deterioration or loss of a bodily organ. However, to sustain the loss of two permanent front teeth is certainly disfigurement to the head as nature made it, and as nature made the front, which we call the face. The fact that a prosthesis has been installed does not prevent disfigurement, as we all know the teeth will not come back and, as testified by Dr. Peterson, artificial teeth are never as good as natural teeth. Because plaintiff's disfigurement has been made less noticeable or unnoticeable to the public at large, I cannot say she is not disfigured. Plaintiff knows it and the permanent prosthesis does not remove plaintiff's disfigurement.
Merriman-Webster New International Dictionary 649 (3rd ed. 1964).
I am unwilling to assume that the legislature had less concern for the loss of a member or organ of the face or head, though such loss be not disabling, and the member or organ be replaced with an artificial one, than for loss of any other organ or member [i. e. those listed in the schedule for specific loss] cf. Landry v. Liberty Mutual Insurance Company, et. al., 258 La. 649, 247 So.2d 564 (1971), where compensation was awarded for a sightless eye which was lost and replaced by an artificial eye.
The conclusion I reach is inescapable from the clear language of our Supreme Court in Odom 110 So. at page 755:
"In our opinion, the loss of three lower front teeth is a serious permanent disfigurement. Moreover, such a loss, within the contemplation of clause (e) [LSA-R.S. 23:1221(4)(p)] is [also] a serious permanent impairment of a physical function, since it interferes with the one, sustaining the loss in eating. The fact that the teeth may be, and in this instance were, replaced does not wholly remove the disfigurement or the impairment, or the seriousness of either, though it lessens it. The case does not come within the exception that the clause makes with reference to cases already provided for [within the provisions already made] * * *." (emphasis supplied)
Plaintiff's loss of front teeth, though replaced by bridgework which could be viewed and observed without difficulty by prospective employers might, in some circumstances, conceivably reduce plaintiff's competitive chances of obtaining certain kinds of employment and is, therefore, disfigurement in the compensation sense.
In my opinion, to the extent that Davis stands for the proposition that the loss of a front tooth (teeth) is not disfigurement it is incorrect and, therefore, we should rigidly adhere to Odom.
I am further of the opinion that the compensation principle requires a commitment to a liberal construction of the Workmen's Compensation Act to include injured workmen within its provisions rather than exclude them. Fundamental to the Workmen's Compensation Act is the theory of compromise in which the employer and employee each surrenders certain advantages in order to gain others which are more important to both of them and to society. Therefore, it appears that the basic purpose of the Workmen's Compensation Act is inclusion of employers and employees and not their exclusion, and its presumptions and its penalties are directed toward effective coverage rather than noncoverage.
The court is vested with discretion in fixing an award pursuant to the provisions of LSA-R.S. 23:1221(4)(p). Accordingly, I would conclude that the district court did not err in making the award of compensation it did under Section 1221(4)(p). cf. Fruge v. Hub City Iron Works, supra.
For the foregoing reasons, I respectfully dissent.