Thornton v. E. I. Du Pont De Nemours & Co.

In my opinion the decision of the Court of Appeal is correct.

As I appreciate it, the question to be determined in this case is not as narrow as it is stated in the prevailing opinion. It is my view that the question is, as stated in the written reasons for judgment handed down by the judge of the district court, "whether or not in the absence of an allegation that there has been a demand for compensation by the employee or a refusal on the part of the employer to pay, an employee has the right to have his claim for compensation judicially determined when at all times since the injury resulting in his disability was sustained, he has received either wages in excess of the amount payable as compensation or the maximum compensation as fixed by the Workmen's Compensation Act, there being no dispute either as to the amount of the weekly payments of compensation to which plaintiff is entitled, or that same is due during his disability not to exceed four hundred weeks."

I quote the following from the opinion of the Court of Appeal in this case as showing the nature of plaintiff's suit, towit [15 So. 2d 543]: "Plaintiff's injury in this case was sustained on February 3, 1942, from which time, as shown by the allegations of his petition, he was retained on the payroll of the employer, ``even up to the present time,' meaning no doubt the date on which the suit was filed, February 2, 1943. In presenting its defense through an exception of prematurity the defendant alleged the fact was that plaintiff was paid his weekly wages regularly and without interruption from the time of his injury to the date suit was filed; that in his petition he only claims compensation as being due and payable from on or about February 10, 1943, and weekly thereafter, and whilst it does not appear from the petition that he has been placed on compensation, it is nevertheless a fact that on February 8, 1943, after having paid him all wages due up to February 8, 1943, plaintiff was placed on compensation at the rate of $20 per week. Defendant then avers that since plaintiff has actually been placed on compensation a plea of prescription as suggested by him in Article 12 of his petition would be unavailable. In connection with the plea of prematurity defendant also filed an exception of no right or cause of action."

After defendant had filed its plea of prematurity, plaintiff, by supplemental petition, alleged that defendant was indebted to him for the maximum compensation for a period of 400 weeks, the first payment being due and payable on or about February 10, 1942, instead of on or about February 10, 1943, as alleged in his original petition.

Defendant's plea of prematurity is based on Section 18 of Act No. 20 of 1914, as amended by Act No. 85 of 1926 and Act No. 81 of 1930, Dart's Stat. sec. 4408, subd. 1(B), providing that unless in the verified complaint (petition) of the injured employee or his dependent it is alleged that the employee or the dependent is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which the petitioner is entitled under the statute, the presentation or filing of the complaint (petition) shall be premature and shall be dismissed.

Nowhere in plaintiff's petition is it alleged, as required by the statutory provisions hereinabove referred to, that he is not being paid or has not been paid the maximum percent of wages to which he is entitled. On the contrary, it is alleged and admitted in the petition that the defendant has been paying, and plaintiff has been receiving, more than the maximum percent of his wages as required by the compensation law. In these circumstances, it is correctly argued on behalf of the defendant that its plea of prematurity is well founded and should be sustained by this Court as it was by the district court and the Court of Appeal.

Prior to the adoption of Act No. 85 of 1926, amending Act No. 20 of 1914, this Court held that where there was a dispute between the parties as to the amount due, or as to the period of disability, the employee was entitled to a judgment fixing the amount of compensation, or the time it was due, notwithstanding that when the suit was brought the employer was paying the maximum compensation. Ford v. Fortuna Oil Co.,151 La. 489, 91 So. 849; Daniels v. Shreveport Producing Refining Corp., 151 La. 800, 92 So. 341; Hulo v. City of New Iberia,153 La. 284, 95 So. 719. But since the amendment of Section 18, subd. 1(B) by the act of 1926 the Courts of Appeal which, under sections 10 and 29 of Article 7 of the Constitution of 1921, are vested with appellate jurisdiction in workmen's compensation cases, have consistently refused to pass upon claims under the Workmen's Compensation Law where the employee is receiving an amount equal to or in excess of the maximum compensation to which he is entitled. In some of the cases the court has refused to maintain the suit on the ground that plaintiff had no cause of action and in other cases the court has dismissed the suit upon a plea of prematurity.

In the case of Moss v. Levin, 10 La.App. 149, 119 So. 558, and 120 So. 258, 259 (on application for rehearing), decided in 1929 the Court of Appeal for the First Circuit, held that since the passage of Act No. 85 of 1926 the earlier cases of Ford v. Fortuna Oil Co. and Daniels v. Shreveport Producing Refining Corp., decided by the Supreme Court, were not controlling where an employee had been paid and was being paid the maximum percent of wages to which he was entitled under the Workmen's Compensation Law. In that case, the employee sued his employer and its insurer for total and permanent disability. The insurance company had paid plaintiff the maximum compensation due under the statute at the time the suit was filed. Plaintiff alleged that these payments had been made only at the pleasure of the insurance company, and that the company had declared it would pay the compensation for only a part of the period for which it was demanded and, furthermore, was disputing the amount of weekly compensation to which plaintiff was entitled; that the defendants had refused to enter into an agreement liquidating the amount of compensation to be paid and the period during which the payments were to be made, and that plaintiff was entitled to have an agreement considered and approved by the court and reduced to a judgment. Defendants' exception of prematurity was overruled and their exception of no right of action was referred to the merits, on which judgment was rendered in favor of plaintiff as prayed for. The Court of Appeal reversed the judgment of the district court and dismissed plaintiff's suit reserving to him the right under Act No. 20 of 1914, as amended to bring another suit in case the weekly payments made at the time of suit should cease to be made.

In the opinion refusing the application for a rehearing, the Court of Appeal, referring to Section 18, subd. 1(B) of Act No. 85 of 1926, said:

"This last-quoted provision amplifies and adds to section 18 the requirement that the employee or his dependent shall specially allege that he or said dependent is not being, or has not been, paid, and that the employer has refused to pay the maximum per centum of wages to which the petitioner is entitled under the act.

"It would seem that this provision was deliberately worded to avert the situation caused by the aforementioned decisions interpreting the sections as they formerly existed, but, if not, it is certainly too specific to sanction the institution of a suit, where it is alleged in effect that the maximum per centum of wages have been, and are being, paid."

The decision in the case of Moss v. Levin was followed by the decision rendered by the same Court of Appeal in 1939 in Reiner v. Maryland Casualty Company, 185 So. 93, wherein the judgment of the district court, dismissing a suit for compensation for total and permanent disability on a plea of prematurity, was affirmed. In that case, plaintiff had been receiving, and defendant had been paying, the maximum amount of weekly compensation to which plaintiff was entitled. The dispute between the parties was not as to the amount of compensation being paid, but was as to the length of time it should be paid. The plea of prematurity was based on defendant's contention that, as plaintiff was being paid the maximum amount of compensation to which he was entitled, under the law governing the case, Section 18 of Act No. 20 of 1914, as amended in 1926 and 1930, no suit could be filed to have the amount of compensation fixed and to have the period of time during which payment was to be made definitely fixed as long as the maximum compensation claimed was being regularly paid. The decision in Moss v. Levin was cited and approved.

In Pitts v. M. W. Kellogg Co., 186 So. 389, also decided in 1939, the Court of Appeal for the First Circuit, on the authority of Act No. 85 of 1926, Section 18, subsection 1(B), held that an action for workmen's compensation, which is instituted while the plaintiff is receiving maximum weekly compensation, must be dismissed as premature. In its decision, the Court cited with approval its previous decisions in Moss v. Levin and Reiner v. Maryland Casualty Company.

Nor, in the opinion of the Court of Appeal was the situation changed where, instead of compensation, the employee is paid his usual wages. The Court so held in Ulmer v. E. I. Du Pont De Nemours Co., La.App., 190 So. 175, 176. Plaintiff in that case was injured on July 7, 1938, at which time he was receiving $40 a week as wages. He was put on light work and received his regular wages for services rendered up to December 28, 1938, at which time his services were terminated and he was put on compensation at the maximum rate of $20 per week. This maximum compensation was being paid plaintiff at the time the suit was filed. In that case, as in this case, plaintiff contended that the amount received by him from the date of his injury, July 7, 1938, to December 28, 1938, was not compensation but was an amount paid him as wages for services rendered to his employer and that as he was totally disabled from performing the kind of work he was doing when injured, he was entitled to receive compensation from the date he received his injury. Plaintiff's suit was dismissed on a plea of prematurity, and the Court of Appeal affirmed the judgment holding specifically:

"Plaintiff is claiming compensation under subsection 1(b) of Section 8 of said act which provides that compensation shall be paid for injury producing permanent total disability to do work of any reasonable character at a certain percentum of the weekly wages during the disability, not to exceed four hundred weeks. The basis for awarding an employee compensation under this and the other paragraphs (a) and (c) of this subsection is not because of any damages sustained by the employee on account of the accident, but because of the loss or diminution in his earning capacity. Rylander v. [T.] Smith Son, Inc.,177 La. 716, 149 So. 434. * * *

"Our ruling in the case must be restricted to the issue presented, and we hold, where an employee receives an injury affecting his capacity to work and is entitled to compensation under those clauses in the compensation law allowing compensation on account of disability, and where such employee, after such disabling injury, continues to receive from his employer his usual wages, whether his services are commensurate with such wages or not, and where such wages are equal to or in excess of the maximum compensation that he could claim for the injury, a suit by such employee for compensation for the period during which the said wages are being paid would be premature. And it follows that no suit for compensation for such period could be maintained after the payment of such wages has terminated and the employee is thereafter paid the maximum compensation up to the time the suit is filed."

Ulmer, the plaintiff, applied to this Court for a writ of certiorari or review to the Court of Appeal. His application, with all Justices concurring, was refused by this Court on November 27, 1939, on the ground that the judgment of the Court of Appeal was correct. No. 35,578 of the docket of this Court.

In Carrere v. City of New Orleans, 162 La. 981, 111 So. 393, this Court held, as shown on pages 1015, and 404, respectively, of the opinion, that the refusal to issue a writ of review to the Court of Appeal under the Constitutions of 1898 and 1913 was not an affirmance of the judgment complained of, being merely a declining to exercise the jurisdiction of the Supreme Court to review the case, but since the adoption of the Constitution of 1921, a different situation is presented. It was so held by the Court in these words: "Under the Constitution of 1921, art. 7, § 2, an appellate court is required to give its reason or reasons when it declines to exercise its supervisory jurisdiction. Therefore, when the Supreme Court now refuses to issue a writ of review in a case decided by one of the Courts of Appeal and assigns as the reason for refusing the writ that the judgment is correct, it may be said that the Supreme Court affirms or at least approves the decision. But it was not so under the Constitutions of 1898 and of 1913, when writs were refused without an assignment of any reason, and were sometimes refused because of some informality in the application, or because the case involved only questions of fact, or questions of law that were deemed not important enough to warrant an interference with the decree of the court of appeal."

The ruling in the Carrere case, to which we have referred, was cited and approved in the case of State v. Ardoin, 197 La. 877, at page 890, 2 So. 2d 633, at page 637.

Both the district court and the court of appeal in this case relied on the decision of the Court of Appeal in the Ulmer case which, under the ruling in the Carrere and Ardoin cases, was affirmed, or at least approved, by this Court in refusing an application for a writ of certiorari or review.

Plaintiff's counsel takes the position that this Court, by its decision in the case of Carlino v. United States Fidelity Guaranty Co., 196 La. 400,199 So. 228, overruled the decision rendered by the Court of Appeal in the Ulmer case, which decision was affirmed or approved by this Court when it refused plaintiff's application for a writ of certiorari or review. In the opinion under review herein, the Court of Appeal for the First Circuit points out that in the Carlino case, on rehearing, after commenting upon the fact that the Court of Appeal for the Second Circuit had based its decision that was reviewed in that case on the ruling in the Ulmer case, this Court makes this statement: "Our opinion is that a suit brought by an injured employee for compensation for a period during which he is paid wages equal to or exceeding in amount the compensation claimed would be unavailing, not on the ground of [prematurity], but because there would be no cause or right of action for compensation for that period." But an examination of the record in the Carlino case discloses that neither an exception of prematurity nor an exception of no right or cause of action was filed in that case. The main defense urged in the Carlino case, both in the district court and in the Court of Appeal, as shown by the record and by the opinion rendered by this Court on rehearing, at page 416 of the opinion in 196 La., at page 233 of 199 So., was that the suit was barred by the prescription of one year under Section 31 of the Employers' Liability Act, as amended by Act No. 29 of 1934. However, as stated in the opinion, this Court did not find it necessary to pass on the plea of prescription, because the suit was brought within one year from the recurrence of the rupture from which the plaintiff was suffering. Obviously, since there was no plea of prematurity filed in the Carlino case, and since the defendant in that case was not relying on the provisions of subsection 1(B) of Section 18 of the Workmen's Compensation Act, as amended by Act No. 85 of 1926, there was no necessity for defendant to specifically allege the statutory provision in bar of plaintiff's suit. And since Act No. 85 of 1926 was not only not embraced, but was not even referred to, in the pleadings filed by the defendant in the Carlino case, this Court was not called upon in that case to consider and did not consider, the effect of the legislative act. As shown by the opinion of this Court in the Carlino case and as admitted by the majority opinion in this case, the decision in the Carlino case was based on the decision that this Court rendered in Hulo v. City of New Iberia, 153 La. 284, 95 So. 719. But as the Hulo case was decided in 1923, it is clear that the Court in that case did not, and could not, consider the effect of the amendment to the Workmen's Compensation Act adopted by the Legislature in 1926.

In view of the circumstances which I have related, and particularly in view of the fact that neither in the Carlino case, nor in the Hulo case was subsection 1(B) of Section 18 of the Workmen's Compensation Act brought before and passed upon by this Court, I do not consider that the Carlino case is decisive of the issue involved in this case, or that it has any bearing on that issue whatsoever. And I am not willing to depart from the jurisprudence established by the Court of Appeal and affirmed by this Court in construing subsection 1(B) of Section 18 of the Workmen's Compensation Act, as amended by Act No. 85 of 1926 and particularly as, in my opinion, that jurisprudence is fully warranted by the language of the statutory provision itself.

On page 5 of the majority opinion in this case [21 So. 2d 48], I find this language: "The judge of the district court and the judges of the court of appeal rested their judgment, maintaining the plea of prematurity, upon Subsection 1(B) of Section 18 of the Employers' Liability Act, as amended by Act No. 85 of 1926; which subsection — as we read it — has reference to cases only where the employer pays the compensation due to the injured employee — or to his dependents in the case of a fatal injury." (My italics.) And on page 7 of the majority opinion [21 So. 2d 49], I find this statement: "At any rate, Subsection 1(B) of Section 18 of the Employers' Liability Act does not justify a dismissal of an employee's suit for compensation merely because of his alleging that the employer has continued to pay his wages in full from the time when the accident happened to the time of the filing of the suit. According to this subsection, what makes a suit for compensation premature is, not the failure of the employee to allege that the employer has not paid him his wages, but the failure of the employee to allege that the employer has not paid him compensation, since the accident happened. And the reason for that is given in Section 31, where it is declared that the payment of compensation — not the payment of wages — prevents the running of prescription."

But I find nothing vague or obscure in subsection 1(B) of Section 18 of the Workmen's Compensation Act, as amended by Act No. 85 of 1926, as I read those provisions. The language used in the statute is plain and explicit and needs no construction. It declares that "unless in the verified complaint * * * it is alleged * * * that the employee or the dependent is not being or has not been paid, and that the employer has refused to pay, themaximum per centum of wages to which petitioner is entitled under the provisions of this act, the presentation of (or) filing of such complaint shall be premature and shall be dismissed. * * *" (My italics.) It will be observed that the Legislature exindustria used the term "wages" and not the term "compensation" as the majority opinion in this case seems to indicate it should have used. And I find no reason to attribute to the meaning of the term "wages" the term "compensation" as does the majority opinion in this case. The statute sets forth in unmistakable language that the action of the plaintiff shall be dismissed as being premature where the plaintiff is not being or has not been paid, and the employer has refused to pay "themaximum per centum of wages to which petitioner is entitled under the provisions of this act." And not where the plaintiff is not being paid or has not been paid and where the employer refuses to pay the maximum percent of compensation to which the plaintiff shall be entitled to be paid.

I find no basis for the reliance in the majority opinion in this case on Section 31 of the compensation law as supporting the interpretation of the term "wages" as used in subsection 1(B) of Section 18 of the Workmen's Compensation Act, as amended by the act of 1926, to mean "compensation" and not "wages." I am of the opinion rather that the term "payments" as used in Section 31 under the liberal interpretation of the compensation statute, is not restricted to actual "compensation" due under the statute but also is applicable to "wages" received by the injured employee for performing lighter services than he was performing before he was injured. In this connection I think it is pertinent to observe that the Court is not authorized to substitute one word for another word in a statute where the substituted word would change the meaning of the law. Lyon Lumber Co. v. Home Accident Ins. Co., 175 La. 476, 143 So. 379.

The plain meaning and intendment of the words used in a statute, in the absence of ambiguity, are the real test of the intention of the Legislature in enacting a statute. And in the case of Succession of McRacken, 162 La. 443, 110 So. 645, 648, this Court correctly held: "There are occasions when, in order to give a law the effect which was plainly intended, the courts must correct or ignore or supply obvious inadvertences, but we must never forget that the authority to make or amend the laws is vested not in the judiciary but in the legislative department, and that the Civil Code itself, in article 13, admonishes us that: ``When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.'"

I find no basis for maintaining plaintiff's suit since he has not alleged in his petition that he is not being paid, or has not been paid, the maximum percent of wages to which he is entitled under the Workmen's Compensation Law. Those allegations are absolutely essential to negative the plea of prematurity which, under the statute, is made available to the defendant.

Plaintiff's other contention that he should be permitted to prosecute the suit at this time in order to interrupt the running of prescription as provided by the statute is also not tenable.

Defendant, in its pleadings, expressly admits that it can not plead the prescription referred to in plaintiff's petition. And in my opinion, it is clear that, under the Workmen's Compensation Act itself, any payments received by the employee and made by the employer or his insurer, although they be made as payment of wages for the performance of lighter duties and not technically as payments for compensation, will prevent the running of prescription.

In Carpenter v. E. I. Dupont de Nemours Co., decided by the Court of Appeal for the First Circuit in March, 1940, 194 So. 99, it was expressly held, and I think correctly, that where an employer, with knowledge of his employee's disabling injury, continues to pay the employee his usual wages, which are in excess of the amount of compensation the employer would have to pay for performing lighter services than the employee was performing before the accident, such payments prevent the running of prescription against the employee's claim for compensation as provided in Section 31 of Act No. 20 of 1914, as amended by Act No. 29 of 1934. The Court of Appeal in this case reaffirmed the ruling in reference to the prescription announced in the Carpenter case. In other words, as long as the plaintiff continues to receive from his employer the same wages he was paid before his injury, there is no danger of his suit for compensation becoming prescribed.

The facts in this case are identical with those of the Ulmer case, and I can conceive of no reason why an employer, relying on the doctrine announced in that case as approved by this Court, in order to protect himself, should feel compelled to immediately discharge or place on compensation an employee who has been injured, instead of retaining him on the pay roll at full wages during his convalescence. In the instant case, the wages defendant paid plaintiff for doing lighter work than he performed prior to his injury amounted to $35 a week more than the maximum compensation due him under the compensation law.

I fear that the decision in this case holding that an employee may obtain a judgment against his employer as soon as an injury is suffered, even though there is no dispute as to the amount due as compensation, and even though the employee is receiving his full wages, will result in employers feeling compelled to immediately discharge their injured employees and to put them on compensation, thereby putting an end to the practice followed by many employers, particularly those who carry their own liability insurance, of assisting those of their employees who are injured during the course of their employment in regaining their health.

In my opinion, therefore, the facts of this case, as admitted by the pleadings themselves, do not justify the Court in giving plaintiff a judgment for compensation at this time. In view of the express provisions of Section 18, subsection 1(B), as amended by Act No. 85 of 1926, plaintiff's suit should be dismissed as premature.