Clay v. Our Lady of Lourdes Regional Medical Center, Inc.

93 So. 3d 536, 2012 WL 1592756, 2012 La. LEXIS 1317
CourtSupreme Court of Louisiana
DecidedMay 8, 2012
DocketNo. 2011-C-1797
StatusPublished
Cited by29 cases

This text of 93 So. 3d 536 (Clay v. Our Lady of Lourdes Regional Medical Center, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clay v. Our Lady of Lourdes Regional Medical Center, Inc., 93 So. 3d 536, 2012 WL 1592756, 2012 La. LEXIS 1317 (La. 2012).

Opinion

JOHNSON, Justice.

[Jn this workers’ compensation case, the workers’ compensation hearing officer terminated Ms. Clay’s benefits, finding the employer had sufficiently proved the availability of jobs such that Ms. Clay was capable of earning ninety percent of her pre-injury wages. The court of appeal reversed, finding the jobs identified by the vocational rehabilitation counselor were not available to Ms. Clay. We granted this writ application to review the correctness of the court of appeal’s decision. Finding no manifest error in the hearing officer’s decision, we reverse the decision of the court of appeal and reinstate the ruling of the hearing officer, terminating Ms. Clay’s benefits as of August 25, 2008.

FACTS AND PROCEDURAL HISTORY

Gloria Clay sustained a work-related back injury on June 28, 2005, while employed as a “SPD technician” (supply, purchasing and distribution) for Our Lady of Lourdes Regional Medical Center (“Lourdes”). Ms. Clay had worked in this position at Lourdes for twenty-two years and earned approximately $9.95/hour. Following the accident, Ms. Clay was diagnosed by Dr. Thomas Bertuccini with | asymptomatic spinal stenosis at L4-5, and underwent surgery on May 8, 2007. Dr. Bertuccini discharged Ms. Clay for light duty work on October 3, 2007. She was subsequently referred to Dr. Sanjiv Jindia for pain management.

Ms. Clay filed a Disputed Claim for Compensation on June 1, 2006. Although Lourdes disputed the claim, it voluntarily paid weekly benefits based on an average weekly wage (“AWW”) of $370.00. Lourdes also paid for medical benefits, although there was some dispute at the time of trial as to the timeliness of certain payments.

Ms. Clay’s workers’ compensation claim went to trial on June 5, 2007, December 10, 2008, and December 12, 2008. Following trial, the hearing officer found that Ms. Clay sustained a work-related accident on June 28, 2005, and ruled she was entitled to weekly compensation benefits in the amount of $252.03 based upon an AWW of $378.05 beginning December 29, 2005 through August 25, 2008, subject to a credit for all weekly compensation benefits paid by Lourdes, including a credit of $3,946.72 representing payment after August 25, 2008 to be applied only against weekly benefits. The hearing officer found the evidence proved Ms. Clay was [538]*538capable of earning ninety percent or more of her AWW, and therefore ordered that Lourdes had no further obligation to pay Supplemental Earnings Benefits (“SEBs”). Benefits were terminated as of August 25, 2008. The court of appeal reversed the hearing officer’s decision,1 finding the jobs identified by the vocational rehabilitation counselor and approved by Dr. Jindia were outside of Ms. Clay’s experience and training. Thus, the court concluded that the positions were not suitable for Ms. Clay and were, therefore, unavailable pursuant to La. R.S. 23:1221(3).2 The court also |sfound the hearing officer erred in calculating Ms. Clay’s AWW by failing to include certain leave benefits.

Lourdes filed a writ application in this Court raising two issues: 1) Ms. Clay’s ability to earn ninety percent or more of her AWW; and 2) the proper calculation of AWW, specifically whether Ms. Clay’s unused and untaxed leave should be included in the AWW. This Court granted the writ application and remanded the matter to the court of appeal to reconsider its ruling with regard to the calculation of the AWW in light of this Court’s ruling in Hargrave v. State, through DOTD, 10-1044 (La.1/19/11), 54 So.3d 1102.3 Following remand, the court of appeal reversed its prior ruling on the issue of calculation of the AWW.4 Lourdes then filed the instant writ application re-raising the issue of whether Ms. Clay is able to earn 90% or more of her AWW, which we granted.5

^DISCUSSION

The purpose of SEBs is to compensate the injured employee for the wage [539]*539earning capacity he has lost as a result of his accident. Poissenot v. St. Bernard, Parish Sheriff’s Office, 09-2793 (La.1/9/11), 56 So.3d 170, 174; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). La. R.S. 23:1221(3)(a) provides that an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. 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. Poissenot, 56 So.3d at 174; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Poissenot, 56 So.3d at 174; Banks, 696 So.2d at 551.

In this case, Ms. Clay was released by her treating physician for light duty work, and it is undisputed that Ms. Clay cannot return to her previous job at Lourdes. Both parties agree that Ms. Clay is not working, nor was she offered a job by any employer. Additionally, Lourdes does not dispute that Ms. Clay met her initial burden of proving her injury resulted in an inability to earn 90% of her prior wages. Thus, the only issue for this Court’s consideration is whether Lourdes met its burden of proving a job was “available to” to Ms. Clay in her geographic region that would enable her to earn 90% or more of her pre-injury wage.

lBIn discussing whether a job is “available,” this Court has held that actual job placement is not required. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1166 (citing Banks, 696 So.2d at 556). In Banks, we discussed in detail the meaning of “job availability,” holding that an employer may discharge its burden of proving “job availability” under La. R.S. 23:1221(3)(c)(i) by establishing, at a minimum, by competent evidence:

(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, 696 So.2d at 557 (emphasis added).

We defined “suitable job” as “a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.” Id. Further, we explained that consideration of an employee’s “age, experience, and education” is not to ensure that an employee is “particularly suited” for a given post-injury job, but, rather, to ensure that the employee is capable of performing the job. Id. at n. 3.

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Cite This Page — Counsel Stack

Bluebook (online)
93 So. 3d 536, 2012 WL 1592756, 2012 La. LEXIS 1317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clay-v-our-lady-of-lourdes-regional-medical-center-inc-la-2012.