This would be the case where going back to work was possible but doing the work might retard the worker in regaining complete recovery of his health. See, for example, Livaccari v. Fidelity Casualty Co. of New York, La.App., 118 So.2d 275, where a pipefitter could carry out most of his duties but could not lift heavy pipe without experiencing severe pain and, consequently, had to depend on fellow workers for help. See Knispel v. Gulf States Utilities Company, 174 La. 401, 141 So. 9 and compare Coats v. Windsor, La.App., 167 So. 483, where compensation was denied, notwithstanding that it was found that returning to the job involved considerable pain to the employee, because the medical testimony was to the effect that working would, rather than retard recovery, be beneficial to the injured member and accelerate the healing process.
Behan v. John B. Honor Company, supra; Livaccari v. Fidelity Casualty Co. of New York, 118 So.2d 275 (La.App., Orl. 1960 — cert. denied). In the case of Lyons v. Swift Company, supra, this court found that plaintiff's stomach cancer was activated, aggravated, and accelerated by a blow received from the handle of a hand truck.
This case comes within the rule that an employee disabled by accident is not to be denied compensation merely because he was already afflicted with a disease which, in its ordinary course of progress, might have caused the disability eventually without any accident and where the accident merely superinduced the disability. Robichaux v. Realty Operators, 195 La. 70, 196 So. 23 (1940); Behan v. John B. Honor Co., supra; Livaccari v. Fidelity Casualty Co. of New York, 118 So.2d 275 (La.App., Orls. 1960 — cert. denied). We are of the opinion that plaintiff sustained an "accident," as the word is defined in the workmen's compensation statute (LSA-R.S. 23:1021, subd. (7)), which worsened and aggravated a preexisting arthritic condition resulting in her total disability.
It is well settled that the law does not expect, and it does not contemplate, that a workman, in order to make his living, must work in pain or that he do so when it will materially increase not only the hazard to his own health and safety but also to those of his fellow employees. Livaccari v. Fidelity Casualty Co. of New York, La. App., 118 So.2d 275. It has also been held that where an injured iron worker, although able to discharge the duties of his occupation only at ground level, where the bulk of his duties entailed work aloft, such workman is totally and permanently disabled within the contemplation of the Workmen's Compensation Act. Brannon v. Zurich General Accident Liability Ins. Co., 224 La. 161, 69 So.2d 1; Pohl v. American Bridge Division United States Steel Corporation, La. App., 109 So.2d 823; Livaccari v. Fidelity Casualty Co. of New York, supra.
This rule is applicable despite such an employee's ability to earn a living doing lighter or less laborious work. Livaccari v. Fidelity Casualty Co. of New York, La. App., 118 So.2d 275; Michel v. Maryland Casualty Company, La. App., 81 So.2d 36; Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695. In the instant case plaintiff contends that he is unable to do the work in which he was engaged at the time of the accident without suffering substantial pain and discomfort.
This was improper for nowhere in the Workmen's Compensation Statute is it provided that an allowance may be made to an injured workman for future medical expenses or expenditures. Broussard v. Dumas Chevrolet Company, La. App., 120 So.2d 863; Livaccari v. Fidelity Casualty Company of New York, La. App., 118 So.2d 275; Wilson v. New Amsterdam Casualty Company, La. App., 86 So.2d 556. However, the right to assert claim against defendants for future medical expenses should have been reserved unto plaintiff.
See also: White v. Calcasieu Paper Company, La. App. 1 Cir., 96 So.2d 621, certiorari denied; Myers v. Jahncke Service Company, La. App.Orleans, 76 So.2d 436, certiorari denied; Scalise v. Liberty Mut. Co., La. App. 1 Cir., 84 So.2d 88 (where the jurisprudence concerning the question is extensively analyzed). Cf. also Woodson v. Southern Farm Bureau Cas. Ins. Co., La. App. 2 Cir., 121 So.2d 571, and Livaccari v. Fidelity Cas. Co., La. App.Orleans, 118 So.2d 275, certiorari denied, where credit was denied, although upon a different rationale. As the D'Antoni, Thornton, and Scalise cases indicate, if full wages are paid as a gratuity for the performance of lighter work, then the continued wages may be treated as compensation for the purposes both of interrupting prescription and also as a credit against the employer's compensation liability.
Approximately four months after the automobile accident the plaintiff suffered a fall while working and injured his left knee. This injury to the left knee was a torn meniscus for which he received compensation for total and permanent disability (Livaccari v. Fidelity Casualty Co. of New York, La. App., 118 So.2d 275). The plaintiff saw Dr. Baker the day after the automobile accident, saw Dr. Battalora approximately five months after that accident and shortly after the second, or compensation accident, saw Dr. Haslam almost a year after the automobile accident, and was examined by Dr. Echols, who acted on behalf of the defendants, almost two years after the first accident. The first three doctors testified for the plaintiff and the last testified for the defendants.
This case comes within the rule that an employee disabled by accident is not to be denied compensation merely because he was already afflicted with a disease which, in its ordinary progress, might have caused the disability eventually even without any accident and where the accident merely superinduced the disability. Robichaux v. Realty Operators, Inc., 195 La. 70, 196 So. 23; Behan v. John B. Honor Co., supra; Livaccari v. Fidelity Casualty Co. of New York, La.App. 1960, 118 So.2d 275. This case comes, also, within the rule established and reiterated in Brannon v. Zurich General Accident Liability Ins. Co., 224 La. 161, 69 So.2d 1, that the law does not require or contemplate that a laborer, in order to earn a living, must work in pain or that he do so when it will materially increase not only the hazard to his health and safety but to that of his fellow employees.
We followed the doctrine of the Brannon case in Pohl v. American Bridge Division United States Steel Corp., La. App., 109 So.2d 823, 828 (certiorari denied), in which an iron worker at ground level could not perform his duties aloft, and we said "therefore he can not perform a substantial part thereof." This court also adhered to the rationale of the Brannon case in Livaccari v. Fidelity Casualty Co. of New York, La. App., 118 So.2d 275 (certiorari denied), wherein we held that whereas a pipefitter's ability to work was impaired by injury to his knee causing him to work in pain and rendering him incapable of doing certain phases of his trade which he formerly performed, he was totally and permanently disabled. We think that the plaintiff in the instant case is in legal contemplation situated no differently from the workmen in the Brannon, Pohl and Livaccari cases.