Dennis Babineaux v. Luba

• Court: Louisiana Court of Appeal
• Decided: June 6, 2012
• Docket: WCA-0012-0129
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

12-129

DENNIS BABINEAUX

VERSUS

LUBA AND DENNIS BABINEAUX ELECTRICAL SERVICE

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APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4 PARISH OF LAFAYETTE, NO. 10-07076 HONORABLE SHARON MORROW, WORKERS’ COMPENSATION JUDGE

J. DAVID PAINTER JUDGE

Court composed of Sylvia R. Cooks, J. David Painter, and James T. Genovese, Judges.

AFFIRMED.

David R. Bankston Attorney at Law 2701 Johnston Street, Suite 301 Lafayette, LA 70503 (337) 232-1444 COUNSEL FOR PLAINTIFF-APPELLEE: Dennis Babineaux

Christopher R. Philip Attorney at Law 120 Caillouet Place Lafayette, LA 70501 (337)235-9478 COUNSEL FOR DEFENDANTS-APPELLANTS: LUBA and Dennis Babineaux Electrical Service PAINTER, Judge.

Claimant, Dennis Babineaux, filed a disputed claim for compensation seeking

to have his status changed to permanent total disability (PTD). The Workers’

Compensation Judge (WCJ) found claimant to be permanently and totally disabled

and reinstated his benefits, subject to a reverse offset for amounts he was receiving

from Social Security. His claims for penalties and attorney’s fees were denied.

Defendants, LUBA and Dennis Babineaux Electrical Service, devolutively appealed.

For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Claimant was a self-employed electrical contractor. He injured his back in the

course and scope of his employment on June 14, 2000. He ultimately underwent an

anterior cervical decompression and fusion in December of that same year. Claimant

was awarded temporary total disability (TTD) benefits from June 1, 2000, through

March 28, 2002, and supplemental earnings benefits (SEB) from March 28, 2002. On

August 6, 2010, after his demand to LUBA to convert his indemnity benefits to PTD

status was denied, Claimant filed a claim seeking additional disability benefits based

on his claim that he was permanently and totally disabled and for penalties and

attorney’s fees for the alleged failure to convert his status or to take any action

whatsoever to investigate his condition. Defendants terminated SEB on November 30,

2010. Following trial, the WCJ rendered judgment in favor of Claimant, finding him

permanently and totally disabled. In her oral reasons for judgment, the WCJ further

found that Claimant had established “by clear and convincing evidence, unaided by

any presumption of disability, that he was physically unable to engage in any

employment or self-employment regardless of the nature or character of the

employment or self-employment.” The WCJ also found that Claimant could not be

rehabilitated to achieve suitable gainful employment. The WCJ did not award any

penalties or attorney’s fees to Claimant. A second judgment, which included an order recognizing Appellant’s right to a social security offset, was signed on September 14,

2011. It is from this judgment that Appellant now appeals. Appellant asserts that

Claimant did not prove by clear and convincing evidence that he was permanently and

totally disabled. After our review of the evidence and the applicable law, we affirm

the judgment in favor of Claimant in its entirety.

DISCUSSION

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error.

Brown v. A M Logging, 10-1440, pp. 10-11 (La.App. 1 Cir. 8/4/11), 76 So.3d 486, 493,

(citing Tillery v. State, Dep’t of Pub. Safety and Corr., 07-1228 (La.App. 1 Cir.

2/8/08), 984 So.2d 742).

Moreover, whether or not a claimant has carried his burden of proof and

whether the testimony submitted is credible are also questions of fact that must be

determined by the trier of fact, and the trier of fact’s determinations of these issues are

subject to the manifest error standard of review. Allman v. Washington Parish Police

Jury, 04-600 (La.App. 1 Cir. 3/24/05), 907 So.2d 86.

Since Claimant has not filed an answer to appeal or his own appeal, the WCJ’s

refusal to award penalties or attorney’s fees is not reviewed herein. Furthermore, the

entitlement to the reverse offset or the amount thereof is not in dispute. Thus, the only

issue before this court is Claimant’s disability status.

Pursuant to Louisiana Revised Statutes 23:1221(2)(c), in order to obtain PTD

status, the claimant must prove:

by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while

2 working in any pain, notwithstanding the location or availability of any such employment or self-employment.

In the case now before us, the WCJ found that Claimant met this burden of

proof and was totally and permanently disabled. The WCJ based this decision on

medical records and deposition testimony of Claimant’s treating physicians

documenting permanent nerve damage directly related to the work injury and

continued severe muscle spasms and on the testimony of Claimant and his wife. The

WCJ chose not to rely on the testimony of the vocational rehabilitation specialist, Ted

Deshotels, who testified for the defense. The WCJ also noted that the surveillance

tapes submitted by the defense did not show any activity inconsistent with Claimant’s

testimony and that, since the tapes had been made several years ago, they did not

show the gradual deterioration of Claimant’s condition over time. Under the manifest

error standard of review, we must give great deference to the WCJ, who as the fact

finder “is in the superior position to assess the demeanor and tone of voice that are

crucial to the issue of credibility.” Jones v. Walpole Tire Serv., Inc., 38,206, p. 4

(La.App. 2 Cir. 3/3/04), 867 So.2d 927, 931 (citing Rosell v. ESCO, 549 So.2d 840

(La.1989)).

Claimant has been treating with a pain management specialist, Dr. Matthew

Mitchell, since 2004. Dr. Mitchell’s records and deposition evidence his opinion that

Claimant is permanently and totally disabled. Claimant’s chiropractor, Dr. Robert

Lejeune, sees him weekly. Dr. Lejeune is also of the opinion that Claimant is fully

disabled and will be so disabled for the rest of his life. Dr. Patrick Juneau is the

neurosurgeon who performed surgery on Claimant in 2000. It is his opinion that

Claimant is permanently and totally disabled from any sort of employment.

Claimant has been receiving epidural steroid injections every three to four

months. Claimant testified that sometimes the injections work and that sometimes

they do not provide much relief. He testified that the spasms prevent him from

3 sleeping and that they make it hard for him to do anything. Claimant also uses a

muscle stimulator several times a week. He suffers from muscle atrophy and

weakness in his left arm and leg. Claimant testified that he has not been employed for

wages since his injury in 2000. Claimant’s wife, Lydia Babineaux, also testified at

trial. She corroborated his testimony concerning the severity and frequency of his

muscle spasms.

Mr. Deshotels is the only witness who testified for the defense. He is a

vocational rehabilitation specialist who began working with Claimant in May of 2003.

It was his opinion that Claimant was capable of performing odd-lot or sheltered

employment and that Claimant had the capability and aptitude for retraining for

gainful employment. However, Mr. Deshotels did not see Claimant in the period from

June 28, 2004 to December, 2010. He also testified that he would defer to the doctors

as to any restrictions on employment.

After reviewing the medical records, deposition testimony, and trial testimony,

we find no manifest error in the WCJ’s ruling that Claimant is permanently and totally

disabled.

DECREE

For all of the foregoing reasons, the judgment finding Claimant to be

permanently and totally disabled is affirmed. All costs of this appeal are assessed to

Defendants-Appellants, LUBA and Dennis Babineaux Electrical Service.