Bertsch v. South Gateway Tire

738 So. 2d 1225, 1999 La. App. LEXIS 2324, 1999 WL 624154
CourtLouisiana Court of Appeal
DecidedAugust 18, 1999
DocketNo. 32,167-WCA
StatusPublished
Cited by2 cases

This text of 738 So. 2d 1225 (Bertsch v. South Gateway Tire) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bertsch v. South Gateway Tire, 738 So. 2d 1225, 1999 La. App. LEXIS 2324, 1999 WL 624154 (La. Ct. App. 1999).

Opinion

h CARAWAY, J.

In this worker’s compensation case, the employee disputes the employer’s termination of supplemental earnings benefits (SEBs). Following the employee’s surgery and his refusal to return to a new job offered by the employer, the employee ob[1226]*1226tained a job elsewhere paying considerably less than his pre-injury wages. Finding that the position offered by the employer would have alleviated the need for SEBs, we affirm the ruling of the worker’s compensation judge.

Facts

Michael Bertsch was a warehouse manager of South Gateway Tire Company (“Gateway”) earning $2200 per month in salary. On February 7, 1995, while working in Gateway’s warehouse, he suffered a disc injury and an aggravation of a prior back condition. On February 15, 1995, Bertsch was examined by Dr. Jorge Martinez. Dr. Martinez had also treated Bertsch for his earlier back injury and surgery in 1988. Dr. Martinez suspected Bertsch may have “recurrent disk material” or an “impingement on the nerve root at a level of his lower back.” After an MRI, Dr. Martinez concluded that Bertsch suffered from a herniated disc at L4-5. Although Bertsch continued to work for several months, surgery was performed in August to repair the ruptured disk that was determined to be the result of the February, work-related injury.

Both before and after Bertsch’s surgery, medical management and rehabilitative services were provided to Bertsch. After the surgery, Bertsch began receiving maximum SEBs. On October 17, a rehabilitation nurse met with Carl Bullard, the general manager of Gateway, to discuss Bertsch’s eventual return to work. Concerned about Bertsch’s physical ability after the surgery, Bullard discussed with the nurse the possibility of assigning Bertsch a light duty job driving a delivery truck between retail outlets in the Shreveport area.

|?On December 11, 1995, Bertsch was released by Dr. Martinez to return to light duty work. On that day, thinking he was to return to his same, position, Bertsch worked in the Gateway warehouse and avoided any heavy duty lifting. Upon Bul-lard’s discovery of Bertsch’s return, he called Bertsch into a conference at the conclusion of the workday to discuss Bertsch’s job status. Bullard then informed Bertsch that his former position had been filled and that he would be assigned work as a Gateway truck driver that would require him to drive a delivery route two days a week. The other three days, Bertsch would perform work in the Gateway warehouse. Bertsch was to begin training as a driver and to obtain his commercial driver’s license.

Bertsch responded negatively to Bul-lard’s offer. Bertsch testified that he believed he could not physically perform the tasks associated with a long truck route and the loading and unloading of the truck. Bullard testified that he offered a truck driver training position and that Gateway would accommodate Bertsch’s light duty work restrictions to allow Bertsch time for continued recovery. Bullard testified that Bertsch simply refused to consider the truck driving position regardless of the degree of its physical demands. Following this December 11 discussion, Bertsch did not return to work for Gateway.

On April 26, 1996, Bertsch was released from Dr. Martinez’s care with a permanent restriction to medium-duty work level for eight hours a day. Medium-duty work would allow for lifting of no greater than fifty pounds. In July 1997, Bertsch performed work for his brother-in-law driving a truck. However, this was not reported to Gateway. Bertsch continued to receive SEB payments after December 1995 until July 1997, at which time the payments were terminated. In November 1997, Bertsch became employed by Horseshoe Casino as a security guard for wages of $7.50 per hour.

13Bertsch filed this claim contesting the termination of SEBs. The matter was tried before a worker’s compensation judge (“WCJ”) and a judgment was rendered against Bertsch. After finding a work-related injury, the WCJ determined that Bertsch was released in April 1996 with the same limitations and pre-accident level of wage earning capacity that Bertsch had had after his initial back surgery in 1988. [1227]*1227The WCJ reasoned that Bertsch “went into this accident or aggravation disabled, ... and when that disability returned to the same level as it was before, he no longer can recover benefits.” The hearing officer further determined that Gateway properly offered a job to Bertsch and that he refused the job. Bertsch appeals the termination of SEBs.

Discussion

“The purpose of S.E.Bs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 2S:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Freeman v. Poulan/Weed Eater, 93-1530, (La.1/14/94), 630 So.2d 733. “Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker’s compensation is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). The WCJ’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal. See, Harvey v. BE & K Const, 30,825 (La.App.2d Cir.8/19/98), 716 So.2d 514; Powell v. Bewley’s Furniture Co., 28,794 (La.App.2d Cir.10/30/96), 682 So.2d 1286.

Once the employee’s burden is met, the burden shifts to the employer who, in order to reduce or defeat the employee’s claim for SEBs, must prove job availability, as follows:

(1)the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.

Banks v. Industrial Roofing & Sheet Metal Works, Inc. 96-2840 (La.7/1/97), 696 So.2d 551. For purposes of the SEB calculation, and particularly pertinent in this case, Section 1221(3)(c)(i) of the Worker’s Compensation Act (“Act”) specifically states that if the employee is earning less than the employee is able to earn, 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 which he was physically able to perform and which he was offered by the employer.

Bertsch contests the WCJ’s legal analysis in denying SEBs. While Bertsch’s physical limitations and earning capacity following his 1988 back surgery were the same as his limitations and earning capacity after Dr. Martinez’s release in April 1996, Bertsch argues that the WCJ’s emphasis upon that similarity ignores the test for the calculation of SEBs set forth in the Act.

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Bluebook (online)
738 So. 2d 1225, 1999 La. App. LEXIS 2324, 1999 WL 624154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bertsch-v-south-gateway-tire-lactapp-1999.