STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-255
ANGELA LEONARDS
VERSUS
SUMMIT CLAIMS, ET AL.
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - DISTRICT 4 PARISH OF LAFAYETTE, NO. 07-05204 ADAM C. JOHNSON, WORKERS’ COMPENSATION JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter and Shannon J. Gremillion, Judges.
AFFIRMED.
Thibodeaux, Chief Judge, concurs and assigns written reasons.
Michael B. Miller Attorney at Law P. O. Box 1630 Crowley, LA 70527-1630 (337) 785-9500 COUNSEL FOR PLAINTIFF/APPELLANT: Angela Leonards
Kristine D. Smiley Matthew W. Tierney Tierney and Smiley, LLC 3535 S. Sherwood Forest, Suite 233 Baton Rouge, LA 70816 (225) 298-0770 COUNSEL FOR DEFENDANTS/APPELLEES: Carmichael’s Cashway Pharmacy, Inc. Louisiana Retailers Mutual Insurance Co. GREMILLION, Judge.
In this workers’ compensation dispute, Angela Leonards appeals the
judgment rendered in favor of Carmichael’s Cashway Pharmacy, her employer,
and Louisiana Retailers Mutual Insurance Company, its insurer (collectively
“Cashway”). The judgment modified her disability benefits from temporary total
disability (TTD) to supplemental earnings benefits (SEB) and awarded Cashway a
credit for other available employment at the rate of $7.50 per hour for forty hours
per week. For the reasons that follow, we affirm.
FACTS
The essential facts of the case are not disputed. Leonards was injured in
2006 in the course and scope of her employment with Cashway. She received
TTD benefits thereafter.
Dr. Steven Staires, a pain medicine specialist, was Leonards’ treating
physician. In April 2011, Dr. Staires was contacted by Burt Ashman, a vocational
rehabilitation counselor retained to provide services to Leonards. Ashman asked
Dr. Staires to review the descriptions of three jobs to determine whether they met
with Leonards’ capabilities. Dr. Ashman approved two jobs with ergonomic
modifications. The third, as customer service representative to Money Mart in
Lafayette, Louisiana, was approved by Dr. Staires without modification. This
position was considered full-time and paid $7.50 to $8.50 per hour, depending on
the applicant’s experience.
Leonards applied for employment with all three businesses but was hired by
none. Cashway filed a motion to modify Leonards’ benefits and to receive credit
against those benefits for the amount she would have earned at Money Mart. The
workers’ compensation judge (WCJ) granted Cashway’s motion and converted Leonards’ benefits from TTD to SEB. Cashway received credit for pay Leonards
would have received had she been hired by Money Mart.
ANALYSIS
Leonards does not appeal the conversion of her benefits from TTD to SEB;
the sole issue here is whether the WCJ erred in giving Cashway credit for the
Money Mart job’s rate of pay.
Supplemental earning benefits are intended to compensate an employee for
the diminution of her earning capacity. Pinkins v. Cardinal Wholesale Supply Co.,
619 So.2d 52 (La.1993). The difference between an employee’s pre-accident
average monthly wages and her proven post-injury earning capacity determines the
amount of SEBs. La.R.S. 23:1221(3)(a). If an employee is not earning wages or
engaged in self-employment, or is under-employed,
the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee’s or employer’s community or reasonable geographic region.
La.R.S. 23:1221(3)(c)(i). The question before the WCJ was whether the Money
Mart job was proven available.
This question is not new to the courts. The Louisiana Supreme Court
addressed the issue in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-
2480 (La. 7/1/97), 696 So.2d 551. Before Banks, the courts of appeal were divided
on the proof needed to establish an employee’s earning capacity. In an effort to
resolve the issue, the supreme court stated the following precepts:
1) Actual job placement is not required.
2 2) The employer must prove the existence of a suitable job that meets the employee’s physical capabilities and is within the employee’s or employer’s community or reasonable geographic region.
3) A “suitable job” is a job that the employee is physically capable of performing, and that also falls within the limits of her age, experience, and education, unless the employer or potential employer is willing to provide additional necessary training or education.
4) The employer must prove the amount of wages the employee can expect to earn in that job.
5) The employer must prove that at the time it notified the employee of the position, an actual position was available.
Leonards attempts to distinguish Banks on the basis that the employee in that
case was furnished with a list of several jobs but applied for none of them. We
reject this distinction. If actual job placement is not an impediment to proving the
employee’s earning capacity, neither is proof that the employee actively pursued
the job.
Leonards also argues that the Money Mart job was not actually available
because she applied for the position and was not hired. The Louisiana Supreme
Court recently rejected that assertion in Clay v. Our Lady of Lourdes Regional
Medical Center, 11-1797 (La. 5/8/12), ___So.3d ___. In Clay, the employee was
notified by the vocational rehabilitation counselor of three positions that were
suitable under Banks. The employee applied for the jobs but was rejected. The
WCJ found that the employer was entitled to terminate her benefits. We reversed,
finding that the positions were not suitable, in part because she had applied for the
jobs and was rejected, and finding error in the WCJ’s calculation of her average
weekly wage. Clay v. Our Lady of Lourdes Reg. Med. Ctr., 09-1219 (La.App. 3
Cir. 6/2/10), 38 So.3d 1196. The supreme court remanded the case for
reconsideration of our ruling on the average weekly wage issue. Clay v. Our Lady
of Lourdes Reg. Med. Ctr., 10-1579 (La. 4/8/11), 62 So.3d 749. We reversed our 3 previous finding on the calculation of the average weekly wage. Clay v. Our Lady
of Lourdes Reg. Med. Ctr., 09-1219 (La.App. 3 Cir. 7/13/11), 71 So.3d 539. The
employer then sought writs on the issue of the employee’s entitlement to SEBs.
The supreme court found that there was no manifest error in the WCJ’s finding that
there were available, suitable jobs.
Clay makes it clear that rejection of the employee’s application for an
available job presents no impediment to proving an employee’s earning capacity.
Accordingly, the judgment of the workers’ compensation judge awarding
supplemental earnings benefits to Angela Leonards subject to a credit for $7.50 per
hour for forty hours per week is affirmed. All costs of this appeal are taxed to
plaintiff/appellant, Angela Leonards.
4 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
THIBODEAUX, Chief Judge, concurring.
I agree but am bothered by the harsh result of this case and its
implications for Ms. Leonards and other similarly aggrieved claimants.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-255
ANGELA LEONARDS
VERSUS
SUMMIT CLAIMS, ET AL.
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - DISTRICT 4 PARISH OF LAFAYETTE, NO. 07-05204 ADAM C. JOHNSON, WORKERS’ COMPENSATION JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter and Shannon J. Gremillion, Judges.
AFFIRMED.
Thibodeaux, Chief Judge, concurs and assigns written reasons.
Michael B. Miller Attorney at Law P. O. Box 1630 Crowley, LA 70527-1630 (337) 785-9500 COUNSEL FOR PLAINTIFF/APPELLANT: Angela Leonards
Kristine D. Smiley Matthew W. Tierney Tierney and Smiley, LLC 3535 S. Sherwood Forest, Suite 233 Baton Rouge, LA 70816 (225) 298-0770 COUNSEL FOR DEFENDANTS/APPELLEES: Carmichael’s Cashway Pharmacy, Inc. Louisiana Retailers Mutual Insurance Co. GREMILLION, Judge.
In this workers’ compensation dispute, Angela Leonards appeals the
judgment rendered in favor of Carmichael’s Cashway Pharmacy, her employer,
and Louisiana Retailers Mutual Insurance Company, its insurer (collectively
“Cashway”). The judgment modified her disability benefits from temporary total
disability (TTD) to supplemental earnings benefits (SEB) and awarded Cashway a
credit for other available employment at the rate of $7.50 per hour for forty hours
per week. For the reasons that follow, we affirm.
FACTS
The essential facts of the case are not disputed. Leonards was injured in
2006 in the course and scope of her employment with Cashway. She received
TTD benefits thereafter.
Dr. Steven Staires, a pain medicine specialist, was Leonards’ treating
physician. In April 2011, Dr. Staires was contacted by Burt Ashman, a vocational
rehabilitation counselor retained to provide services to Leonards. Ashman asked
Dr. Staires to review the descriptions of three jobs to determine whether they met
with Leonards’ capabilities. Dr. Ashman approved two jobs with ergonomic
modifications. The third, as customer service representative to Money Mart in
Lafayette, Louisiana, was approved by Dr. Staires without modification. This
position was considered full-time and paid $7.50 to $8.50 per hour, depending on
the applicant’s experience.
Leonards applied for employment with all three businesses but was hired by
none. Cashway filed a motion to modify Leonards’ benefits and to receive credit
against those benefits for the amount she would have earned at Money Mart. The
workers’ compensation judge (WCJ) granted Cashway’s motion and converted Leonards’ benefits from TTD to SEB. Cashway received credit for pay Leonards
would have received had she been hired by Money Mart.
ANALYSIS
Leonards does not appeal the conversion of her benefits from TTD to SEB;
the sole issue here is whether the WCJ erred in giving Cashway credit for the
Money Mart job’s rate of pay.
Supplemental earning benefits are intended to compensate an employee for
the diminution of her earning capacity. Pinkins v. Cardinal Wholesale Supply Co.,
619 So.2d 52 (La.1993). The difference between an employee’s pre-accident
average monthly wages and her proven post-injury earning capacity determines the
amount of SEBs. La.R.S. 23:1221(3)(a). If an employee is not earning wages or
engaged in self-employment, or is under-employed,
the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee’s or employer’s community or reasonable geographic region.
La.R.S. 23:1221(3)(c)(i). The question before the WCJ was whether the Money
Mart job was proven available.
This question is not new to the courts. The Louisiana Supreme Court
addressed the issue in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-
2480 (La. 7/1/97), 696 So.2d 551. Before Banks, the courts of appeal were divided
on the proof needed to establish an employee’s earning capacity. In an effort to
resolve the issue, the supreme court stated the following precepts:
1) Actual job placement is not required.
2 2) The employer must prove the existence of a suitable job that meets the employee’s physical capabilities and is within the employee’s or employer’s community or reasonable geographic region.
3) A “suitable job” is a job that the employee is physically capable of performing, and that also falls within the limits of her age, experience, and education, unless the employer or potential employer is willing to provide additional necessary training or education.
4) The employer must prove the amount of wages the employee can expect to earn in that job.
5) The employer must prove that at the time it notified the employee of the position, an actual position was available.
Leonards attempts to distinguish Banks on the basis that the employee in that
case was furnished with a list of several jobs but applied for none of them. We
reject this distinction. If actual job placement is not an impediment to proving the
employee’s earning capacity, neither is proof that the employee actively pursued
the job.
Leonards also argues that the Money Mart job was not actually available
because she applied for the position and was not hired. The Louisiana Supreme
Court recently rejected that assertion in Clay v. Our Lady of Lourdes Regional
Medical Center, 11-1797 (La. 5/8/12), ___So.3d ___. In Clay, the employee was
notified by the vocational rehabilitation counselor of three positions that were
suitable under Banks. The employee applied for the jobs but was rejected. The
WCJ found that the employer was entitled to terminate her benefits. We reversed,
finding that the positions were not suitable, in part because she had applied for the
jobs and was rejected, and finding error in the WCJ’s calculation of her average
weekly wage. Clay v. Our Lady of Lourdes Reg. Med. Ctr., 09-1219 (La.App. 3
Cir. 6/2/10), 38 So.3d 1196. The supreme court remanded the case for
reconsideration of our ruling on the average weekly wage issue. Clay v. Our Lady
of Lourdes Reg. Med. Ctr., 10-1579 (La. 4/8/11), 62 So.3d 749. We reversed our 3 previous finding on the calculation of the average weekly wage. Clay v. Our Lady
of Lourdes Reg. Med. Ctr., 09-1219 (La.App. 3 Cir. 7/13/11), 71 So.3d 539. The
employer then sought writs on the issue of the employee’s entitlement to SEBs.
The supreme court found that there was no manifest error in the WCJ’s finding that
there were available, suitable jobs.
Clay makes it clear that rejection of the employee’s application for an
available job presents no impediment to proving an employee’s earning capacity.
Accordingly, the judgment of the workers’ compensation judge awarding
supplemental earnings benefits to Angela Leonards subject to a credit for $7.50 per
hour for forty hours per week is affirmed. All costs of this appeal are taxed to
plaintiff/appellant, Angela Leonards.
4 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
THIBODEAUX, Chief Judge, concurring.
I agree but am bothered by the harsh result of this case and its
implications for Ms. Leonards and other similarly aggrieved claimants.
Louisiana’s mixed system of jurisprudence acknowledges the supremacy of
legislation over jurisprudence. Doerr v. Mobil Oil Corp., 00-947 (La. 12/19/00),
774 So.2d 119 (2000). Louisiana Revised Statutes 23:1221(3)(c)(i) specifically
references employment that “is proven available to the employee . . . .” If a job is
never offered to the employee after the employee has made a diligent effort and
has done all that is required, that job, in my view, is not available to that employee.
That interpretation comports with common sense and the practical realities of
today’s job market. The majority’s interpretation is consistent with Banks v.
Industrial Roofing and Sheet Metal Works, Inc., 96-2480 (La. 1/1/97), 696 So.2d
551 and Clay v. Our Lady of Lourdes Regional Medical Center, 11-1797 (La.
5/8/12), __ So.3d __. Banks and Clay are too restrictive in their interpretation of
“job availability.” This restrictive interpretation is inconsistent with the salutary
purposes underpinning our workers’ compensation laws which should be liberally
constructed. However, I am constrained to follow these cases until our Louisiana
Supreme Court decides otherwise.
I observe that two cases do not form “a series of adjudicated cases,”
see Doerr at 129, such that jurisprudence constante applies. Because Louisiana does not have a “long line of cases following the same reasoning,” Id. at 128, our
supreme court should reexamine the issue of “job availability” using our system of
civilian methodology.
For the foregoing reasons, I concur.