Hardy v. Mercy Hospital of New Orleans

REDMANN, Judge. From a workmen’s compensation award of $49 for 100 weeks for the loss of use of her right index finger, plaintiff appeals. The award was apparently for permanent impairment of a' physical function, La.R.S. 23:1221(4)(p). Plaintiff seeks an award for permanent total disability, or alternatively one for loss of a hand or an arm § 1221(4)(e) or (f), and penalties and attorney’s fees. We affirm. Plaintiff has a flexion contracture of the finger, which she says causes her disabling pain and which makes the finger virtually useless and, experts estimated, the hand 20 to 35% disabled. “A permanent total loss of the use of a member is equivalent to the amputation of the member,” § 1221(4)(n), but a 35% disability is not a total loss of use and therefore would not support an award for loss of the hand (much less the arm). (Loss of the finger would support only 30 weeks’ compensation, § 1221(4)(b).) Permanent disability to work without substantial pain supports an award for total permanent disability, Ball v. American Marine Corp., 1963, 245 La. 515 , 159 So.2d 138 . But our trial judge apparently did not believe plaintiff’s testimony of disabling pain and we are not in a position to disagree with that credibility evaluation. Similarly, inability to compete in the ordinary labor market will support a total permanent disability award; Washington v. Independent Ice & C. S. Co., 1947, 211 La. 690 , 30 So.2d 758 . Plaintiff’s permanently *960 bent right index finger may be a disadvantage in competing for employment, but it is not a substantial disadvantage disabling her from competing. Penalties and attorney’s fees are not due because there was a bona fide dispute over whether there had been a compensable accident. Affirmed.