Cole v. Langston Companies, Inc.

736 So. 2d 896, 98 La.App. 3 Cir. 1202, 1999 La. App. LEXIS 410, 1999 WL 53276
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1999
DocketNo. 98-1202
StatusPublished
Cited by2 cases

This text of 736 So. 2d 896 (Cole v. Langston Companies, Inc.) 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
Cole v. Langston Companies, Inc., 736 So. 2d 896, 98 La.App. 3 Cir. 1202, 1999 La. App. LEXIS 410, 1999 WL 53276 (La. Ct. App. 1999).

Opinion

| .AMY, J.

In this workers’ compensation matter, Plaintiff appeals the workers’ compensation judge’s denial of her claim for workers’ compensation benefits and, additionally, reiterates her request for penalties and attorney’s fees. For the following reasons, we affirm.

Factual and Procedural Background

On or about October 14, 1992, the plaintiff, Helen Cole, suffered an injury while in the course and scope of her employment with the defendant, Langston Companies, Inc. At the time of that injury, Plaintiff was employed as a strapper, which position, according to Plaintiffs testimony, required her to place straps into a bag and zigzag them on a “juki” machine, depressing the pedal of the machine with her foot and using one hand to operate the lever of the machine and the other hand to move the material. Additionally, in performing the job, Plaintiff would remove the bag from the machine and throw it to the ground approximately three feet away from |2her work area. Further, at times, Plaintiff would load her own material and straps onto her table, so as to enable her to satisfy her quota more quickly. At trial, Plaintiff testified that, on the morning of the accident, she “turned to the left to pull the bag toward [her], and [she] heard something pop in [her] neck.” In initially diagnosing Plaintiffs condition on January 11, 1994, her treating orthopedic surgeon, Dr. Stephen J. Flood, found that there “was evidence of cervical and lumbar disc disease.” Pursuant to his August 26, 1997 evaluation of Plaintiffs condition, Dr. Flood diagnosed Plaintiff with “cervical syndrome [,] meaning continued pain in the neck and lumbar HNP at L5-S1.”

Although Plaintiff collected workers’ compensation benefits for some time after the accident, those benefits were terminated by Defendant. Throughout the course of these proceedings, Plaintiff has urged that she remains disabled and is, therefore, entitled to a reinstatement of benefits. Additionally, Plaintiff has sought [898]*898penalties and attorney’s fees, alleging that Defendant was arbitrary and capricious in terminating her benefits, in failing to provide any meaningful vocational rehabilitation, and in failing to inform her of the physical requirements of a modified position offered to her. After a trial on the merits, the workers’ compensation judge ruled in favor of Defendant, dismissing all of Plaintiffs claims. From that judgment, Plaintiff has perfected the instant appeal and presents the following assignments of error for our review:

1. The trial court erred by applying the wrong standard with respect to an employee’s entitlement to vocational rehabilitation under LSA-R.S. 28:1226.
|a2. The trial court manifestly erred in finding that box tacking did not exceed Helen Cole’s physical capabilities.
8. The trial court manifestly erred in finding that Helen Cole could perform the i’equirements of the offered box tacking position despite her use of prescription narcotics.
4. The trial court manifestly erred in finding that Helen Cole was required to investigate the appropriateness of the offered box tacking position.

DISCUSSION

In her oral reasons for ruling, the workers’ compensation judge stated as follows:

“Section 1226 of the Workers’ Compensation Act does not require rehabilitation services when the injured worker can earn ninety percent (90%) or more of her pre-injury wage.”

Plaintiff contends that the workers’ compensation judge applied the incorrect standard in determining whether she was entitled to further rehabilitation services.

Regarding entitlement to vocational rehabilitation, La.R.S. 23:1226(A) provides as follows:

When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services.

Plaintiff urges that she “did show, by her testimony and her physician’s records, that she is incapable of returning to her previous position as a strapper for Langston.” Defendant, however, urges that “reference in the opinion to 90% of the pre-accident wage was harmless error, as it was undisputed, that the job offer made by Lang-ston and refused by Appellant in fact paid the same as her pre-accident wage.” Defendant further submits that the workers’ compensation judge’s “ultimate conclusion that |4Cole failed to sustain the burden of proving that she was unable to earn ‘the threshhold [sic] amount necessary to invoke the provisions of Section 1226 of the Act’ was correct.”

Regarding the scope of our exercise of appellate jurisdiction, La . Const, art. V, § 10(B) provides, in pertinent part, that “appellate jurisdiction of a court of appeal extends to law and facts.” We conduct a de novo review of the record only when we find that the trial court committed either manifest error in its factual determinations or reversible error of law. See Rosell v. ESCO, 549 So.2d 840 (1989). See also Nichols v. Harmony Industrials, 96-1461 (La.App. 3 Cir. 4/2/97); 692 So.2d 701.

Although the workers’ compensation judge did incorrectly state the law regarding entitlement to vocational rehabilitation services, both parties stipulated that Defendant offered Plaintiff a position earning wages equivalent to those earned prior to the injury. In view of the workers’ compensation judge’s determination that Plaintiff could perform the offered position, a determination which, as discussed below, was supported by the evidence, Plaintiff has failed to establish that she is unable to earn wages equal to those earned prior to her injury. Accordingly, Plaintiff has “failed to sustain the burden of proving that she is unable to earn the threshold amount necessary to ... invoke the provi[899]*899sions of Section 1226 of the Act.” We, therefore, find that no reversible error was made. See Morris v. Norco Const. Co., 632 So.2d 332, 335 n. 2 (La.App. 1 Cir.1993)(wherein that court found that “a determination that the hearing officer incorrectly stated the law d[id] not require a reversal in th[at] case because his judgment denying plaintiffs claim for supplemental earnings benefits is correct and clearly supported by the record.”)

| -Plaintiff also contends that the workers’ compensation judge manifestly erred in several factual determinations, including (1) finding that box tacking was within her physical capabilities; (2) finding that she could perform the job of box tacking even though she was taking prescription narcotics; and (3) finding that she was obligated to investigate the suitability of the offered position.

At trial, the parties stipulated that, after Plaintiffs injury, Defendant offered her a position working as a box tacker. The parties further stipulated that Plaintiff refused the offered position and that Defendant terminated compensation benefits. However, the parties disputed whether Plaintiff was capable of fulfilling the requirements of the offered position.

Essentially, Plaintiff contends that “she was justified in refusing to accept the position of box tacker,” because that position “exceeded [her] physical capabilities.” At trial, she testified that the position, as she remembered it from having previously performed it, was a quota position and required twisting of the torso.

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Bluebook (online)
736 So. 2d 896, 98 La.App. 3 Cir. 1202, 1999 La. App. LEXIS 410, 1999 WL 53276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-langston-companies-inc-lactapp-1999.