Foreman v. West Calcasieu-Cameron Hosp.

625 So. 2d 1104, 1993 La. App. LEXIS 2954, 1993 WL 394614
CourtLouisiana Court of Appeal
DecidedOctober 6, 1993
Docket92-1255
StatusPublished
Cited by12 cases

This text of 625 So. 2d 1104 (Foreman v. West Calcasieu-Cameron Hosp.) 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
Foreman v. West Calcasieu-Cameron Hosp., 625 So. 2d 1104, 1993 La. App. LEXIS 2954, 1993 WL 394614 (La. Ct. App. 1993).

Opinion

625 So.2d 1104 (1993)

Shimerine FOREMAN, Plaintiff-Appellee,
v.
WEST CALCASIEU-CAMERON HOSPITAL, Defendant-Appellant.

No. 92-1255.

Court of Appeal of Louisiana, Third Circuit.

October 6, 1993.

Thomas Allen Filo, for plaintiff-appellee Shimerine Foreman.

Terry James Manuel, Scott James Scofield, for defendant-appellant West Calcasieu-Cameron Hosp.

Before DOMENGEAUX, C.J., and SAUNDERS and WOODARD, JJ.

*1105 SAUNDERS, Justice.

Defendant-appellant, West Calcasieu-Cameron Hospital (hereinafter referred to as West Cal-Cam), appeals from a judgment of the Office of Workers' Compensation in favor of Shimerine Foreman, plaintiff-appellee, wherein the defendant was ordered to pay plaintiff $9,860.77, consisting of $8,537.49 in past-due weekly compensation benefits and the remainder in penalties and interest.

Additionally, plaintiff was granted full weekly benefits in the amount of $218.91 for the duration of her total disability, or until such time as her benefits may be properly reduced to S.E.B. status, with 12% penalties and legal interest attached to those future payments made untimely. Further, defendant-appellant was ordered to pay plaintiff $2,500.00 in attorney's fees and costs. Finally, defendant-appellant was ordered to pay all related outstanding medical bills.

West Cal-Cam appeals, assigning the following as error:

I. THE LOWER COURT ERRED WHEN IT FOUND THAT PLAINTIFF WAS TEMPORARILY, TOTALLY DISABLED DESPITE PLAINTIFF'S TREATING PHYSICIAN'S UNQUALIFIED AND UNCONTRADICTED RELEASE OF PLAINTIFF TO RETURN TO FULL TIME EMPLOYMENT.

II. THE LOWER COURT ERRED WHEN IT HELD THAT PLAINTIFF IS ENTITLED TO SUPPLEMENTAL EARNINGS BENEFITS DESPITE HAVING FOUND THAT HER EMPLOYER HAD "SINCERELY" OFFERED HER A FULL TIME JOB THAT SHE WAS PHYSICALLY ABLE TO PERFORM.

III. THE LOWER COURT ERRED IN ORDERING WEST CAL-CAM TO PAY ANY AND ALL OUTSTANDING MEDICAL BILLS EVEN THOUGH PLAINTIFF DID NOT INTRODUCE ANY EVIDENCE WHATSOEVER TO SHOW THAT THERE WERE ANY OUTSTANDING MEDICAL EXPENSES.

IV. IN THE ALTERNATIVE, THE LOWER COURT ERRED IN AWARDING PENALTIES AND ATTORNEY'S FEES EVEN THOUGH THE COURT FOUND THAT WEST CAL-CAM "SINCERELY CREATED" A FULL TIME JOB FOR PLAINTIFF THAT HER TREATING PHYSICIAN HAD STATED SHE COULD PERFORM.

V. IN THE ALTERNATIVE, THE LOWER COURT ERRED IN NOT LIMITING LEGAL INTEREST TO BECOME DUE ONLY ON THE DATE OF EACH INSTALLMENT REQUIRED TO BE PAID.

FACTS

The hearing officer of the Office of Workers' Compensation, in his reasons for ruling, stated the essential facts, as follows:

The essential facts were undisputed. Claimant suffered a work-related injury on August 21, 1990. Eventually, her treating physicians stated that she could go back to light duty, with no lifting over 20 pounds. In September, 1991, defendant created a light-duty job which was approved by claimant's treating physician, Dr. James Perry. The hours for the job were from 11:00 p.m. until 7:00 a.m. Claimant refused the job because she had a child not yet a year old who needed special care during those hours, some of which could not be provided by a babysitter, such as nursing. Upon claimant's refusal, defendants terminated weekly benefits. Defendants provided no rehabilitation services until after her benefits were terminated.

Additionally, the judgment of the Office of Workers' Compensation made the following findings of fact:

I.

SHIMERINE FOREMAN suffered a compensable work-related injury on August 21, 1990, and as a result thereof is and has been disabled since August 21, 1990.

*1106 II.

Although her treating physicians released her to light duty, she has not at any time since her work-related injury on August 21, 1990 been able to return to full duty in her former occupation as a nurse.

III.

The defendant created or offered to claimant a light duty job which had been approved by claimant's treating physician. The offered position would have required claimant to work between the hours of 11:00 p.m. and 7:00 a.m.

IV.

Solely because she could not arrange for child care for her child who was not yet one year old, and who needed to be nursed, claimant refused the offered position. Defendant terminated claimant's worker;s [sic] compensdation wage benefits based on her refusal to accept the offered position.

DISCUSSION

The hearing officer for the Office of Worker's Compensation, in applying the law to the facts, concluded that the job offered to the plaintiff by her employer was unreasonable and that the termination of her benefits on September 11, 1992, was wrongful, in addition to being arbitrary and capricious, entitling her to penalties and attorney's fees. The hearing officer outlined his analysis in the reasons for ruling, as follows:

The job offered by the employer was unreasonable because the hours it was to be performed were between 11:00 p.m. and 7:00 a.m. Those hours are unusual. Claimant had not worked those hours prior to the injury. She had a baby to nurse and otherwise care for during those hours. If claimant did not have the maternal responsibility, then she might be reasonably expected to take the job. Or, if the job had been offered at different hours, it would have been a reasonable job regardless of her maternal duties. The fact that the light-duty job was sincerely created by the employer—which the Court believes to be true—is not the only burden that the employer had to meet. In an effort to reduce or terminate weekly benefits, an employer should be allowed a reasonable latitude in fashioning a job for a light-duty employee; but, in exercising such latitude, the employer cannot totally disregard the convenience of the injured employee to the point where the employee has no other reasonable alternative but to turn the job down. Such was the case here.

The pivotal issue before this court is whether the hearing officer erred in finding that the plaintiff could reject a good faith offer of employment, at a higher wage, which she was physically able to perform, due to the fact that the work shift was inconvenient for the arrangement of child care. The defendant claims that, insofar as West Cal-Cam offered plaintiff a job which she was physically able to perform, that under LSA-R.S. 23:1221(3)(c)(i), she was no longer entitled to supplemental earnings benefits.

LSA-R.S. 23:1221(3)(a), (b) and (c) regarding supplemental earnings benefits states:

(a) For injury resulting in the employee's inability to earn wages equal to ninety per cent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed as four and three-tenths times the wages as defined in R.S. 23:1021(10).

(b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, *1107

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Bluebook (online)
625 So. 2d 1104, 1993 La. App. LEXIS 2954, 1993 WL 394614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foreman-v-west-calcasieu-cameron-hosp-lactapp-1993.