Gary Smith v. Dresser Industries, Inc.

• Court: Louisiana Court of Appeal
• Decided: April 1, 2009
• Docket: WCA-0008-1218
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-1218

GARY SMITH

VERSUS

DRESSER INDUSTRIES

************

APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2 PARISH OF RAPIDES, NO. 07-00669 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE ************

JAMES T. GENOVESE JUDGE

Court composed of John D. Saunders, Michael G. Sullivan, and James T. Genovese, Judges.

AFFIRMED.

Jay A. Pucheu Post Office Box 310 Marksville, Louisiana 71351-0310 (318) 253-5080 COUNSEL FOR PLAINTIFF/APPELLANT: Gary Smith

Mark A. Watson Stafford, Stewart & Potter 3112 Jackson Street Post Office Box 1711 Alexandria, Louisiana 71309-1711 (318) 487-4910 COUNSEL FOR DEFENDANT/APPELLEE: Dresser Industries, Inc. GENOVESE, JUDGE.

In this workers’ compensation suit, Gary Smith, claimant, appeals a judgment

of the workers’ compensation judge (WCJ) in favor of Defendant, Dresser Industries,

Inc.1 (Dresser), denying Mr. Smith’s claim for permanent and total disability benefits.

For the following reasons, we affirm.

FACTS

While employed by Dresser, Mr. Smith sustained an injury on February 9,

1996. Relative to Mr. Smith’s injury and subsequent treatment, the parties entered

several stipulations into the record. The parties were in agreement that Mr. Smith

was injured in the course and scope of his employment with Dresser on February 9,

1996, and, as a result thereof, he underwent a lumbar microdiscectomy at L4-5 on

February 10, 1997. It was also stipulated that, on September 3, 1998, Mr. Smith

underwent a laminectomy from L-3 through S-1, a foraminotomy bilaterally at L-3,

L-4, and L-5, and a disc removal at L4-5. The parties further agreed that these

surgeries were all causally related to the original work-related injury of February 9,

1996. The parties also stipulated that Mr. Smith had been paid indemnity benefits

through May 13, 2007, at the applicable maximum rate of $330.00 per week, based

upon an average weekly wage of $632.00. Finally, the parties agreed that Mr.

Smith’s medical benefits were continuing to be paid through the date of trial.

As a result of the termination of his supplemental earnings benefits (SEB) on

November 14, 2006, Mr. Smith filed a Disputed Claim for Compensation (Form

1008) on January 30, 2007, alleging that the termination of his SEB was arbitrary and

capricious. Mr. Smith sought back pay, interest, penalties, and attorney fees. He

1 The named Defendant in the caption of this case is “Dresser Industries[,]” the employer of claimant; however, in his brief, counsel for Dresser Industries identifies the employer as “Dresser Industries, Inc.[,]” and that is how it will be referred to throughout this opinion. amended his Form 1008 to additionally assert that the termination of his indemnity

benefits was arbitrary and capricious due to his permanent and total disability (PTD)

status. A subsequent amendment by Mr. Smith sought penalties and attorney fees for

an alleged inadequate payment of SEB by Dresser. Mr. Smith also sought payment

for the travel expenses he incurred in connection with a functional capacity

evaluation (FCE).

Following trial on April 23, 2008, the WCJ denied Mr. Smith’s demand for

continued SEB, denied his claim for PTD benefits, and found that his SEB had not

been improperly calculated. The WCJ found in favor of Mr. Smith on his claim that

the travel expenses relating to the FCE were paid untimely and awarded him penalties

and attorney fees. A judgment in accordance therewith was signed on June 17, 2008.

It is from this judgment that Mr. Smith appeals.

ISSUES

Mr. Smith presents the following issues for our review:

1. [Where] there were objective signs of ongoing injury, no indication of malingering, no testimony that any of plaintiff’s alleged capacities translate into the ability to earn money in the work place[,] and where plaintiff’s treating physician opined that he was permanently restricted from all types of employment, [did] the trial court commit[] manifest error and abuse[] its discretion in failing to find that plaintiff was permanently and totally disabled[?]

2. [Was] the trial court . . . manifestly erroneous in its application of existing law when it denied plaintiff permanent and total disability status because his inability to work was in part based upon pain caused by work activities due to his documented physical problems[?]

3. If the trial court is reversed, [what] amount of penalties and attorney’s fees [are] to be awarded[?]

LAW AND DISCUSSION

Standard of Review

The WCJ’s denial of Mr. Smith’s claim of PTD status is a factual

2 determination which is subject to the manifest error or clearly wrong standard of

review. Johnson v. E. Baton Rouge Parish Sch. Bd., 06-1010 (La.App. 1 Cir.

3/28/07), 961 So.2d 388. Therefore, the WCJ’s judgment on this issue is to be given

great weight by this court and will not be overturned unless this factual determination

is clearly wrong.

Permanent and Total Disability Status

Mr. Smith asserts on appeal that, based upon the evidence, the trial court was

manifestly erroneous in concluding that he failed to establish PTD status. His focus

on appeal is that he was erroneously denied PTD status “because his inability to work

was in part based upon pain caused by work activities due to his documented

objective physical problems.” In response, Dresser asserts, in brief: “As Judge

Braddock correctly concluded, the evidence established that the only impediment to

Mr. Smith’s ability to perform work was his complaints of pain; and, as indicated by

the statute, pain is not a permissible basis for the awarding of permanent total

disability benefits.” We agree with Dresser.

Louisiana Revised Statutes 23:1221

Louisiana Revised Statutes 23:1221(2)(c) (emphasis added) provides for PTD

benefits for an injured worker if the following standard is met:

For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves 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 working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Mindful of Mr. Smith’s burden of proving by clear and convincing evidence that he

3 is unable to engage in employment, notwithstanding complaints of pain, we consider

the testimony and exhibits introduced at trial.

Testimony of Mr. Smith

Mr. Smith testified that he suffers pain on a daily basis. Although he admitted

that he is able to perform certain activities around his home, such as cutting his grass,

it was his testimony that such activity exacerbates his pain. According to Mr. Smith,

he does not do anything “real strenuous,” and[,] on his “bad days[,]” he “sit[s] around

and take[s] it easy.” It was his testimony that he only obtains relief when he lays

down or sits in a lounge chair.

Report of Dr. Rayland K. Beurlot

Dr. Rayland K. Beurlot performed an independent medical examination (IME)

on Mr. Smith on April 10, 2007, and his report issued in connection therewith was

introduced into evidence. Dr. Beurlot’s diagnosis of Mr. Smith was “lumbar

radiculopathy.” It is noteworthy that when addressing Mr. Smith’s ability to work,

Dr. Beurlot did not have the benefit of the FCE, which he felt would have been

“somewhat useful.” However, in response to the inquiry relative to Mr. Smith’s

ability to work, Dr. Beurlot’s report contains the following response:

He might be able to return to some light or sedentary activity, but there would be significant restrictions concerning the actual amount of material weight handled, range of motion such as bending over, squatting, stooping, etc. He would do better at a job which requires a frequent change of position[,] and he will do poorly at any job which requires prolonged maintenance of one position, such as standing or sitting. Walking is certainly permitted, in fact, encouraged on brief, short intervals. As stated above, standing is[,] for the most part[,] to be avoided, except for extremely short periods of times. I do not expect that the functional capacity evaluation would show any trends that would change the above.

Dr. Beurlot concluded that Mr. Smith is “at least permanently partially disabled.”

4 Deposition of Andy Waldhelm

The deposition of Mr. Andy Waldhelm was also introduced into evidence. Mr.

Waldhelm, a physical therapist, performed an FCE on Mr. Smith on April 16, 17, and

18, 2007. After conducting his evaluation, Mr. Waldhelm was of the opinion that Mr.

Smith was able to perform “light-medium” work. When questioned about Mr.

Smith’s complaints of pain, Mr. Waldhelm explained that during the FCE, Mr.

Smith’s pain did “increase a little bit,” but “he was still able to maintain” the light to

medium work level. Based on the FCE, Mr. Waldhelm was of the opinion that Mr.

Smith was “[a]ble to perform work at the light-medium level with restrictions. . . .”

Deposition of Paul Fontana

The deposition of Mr. Paul Fontana, an occupational therapist, was also

introduced into evidence. Mr. Fontana worked in connection with Mr. Waldhelm to

generate the FCE report on Mr. Smith. It was Mr. Fontana’s testimony that, based

upon Mr. Smith’s performance during the FCE over the course of three days, Mr.

Smith was able to maintain work at a “light-medium” level. Mr. Fontana’s opinion,

based upon Mr. Smith’s demonstrated abilities, was that Mr. Smith was not totally

disabled.

FCE Report

The FCE report, which was introduced into evidence, states: “Although Mr.

Smith continues to report the above pain, the client has been able to maintain work

at the light medium work level. It is our professional opinion that Mr. Smith is

employable at the light medium work level with restrictions as outlined in this

report.”

Deposition of Dr. Kenneth Johnson

The deposition of Dr. Kenneth Johnson, Mr. Smith’s treating physician, was

5 introduced into evidence. Dr. Johnson testified that his diagnosis of Mr. Smith was

“chronic low back injury, degenerative disease.” He was of the opinion that Mr.

Smith’s limitations were light or sedentary. Dr. Johnson “just [did not] think that he’s

really going to be able to do anything.” According to Dr. Johnson, if a “very light

duty” job could be found, such as working “at home on a computer, rarely, off and on

as is allowed, he may be able to do something like that.” As emphasized by Mr.

Smith, it was Dr. Johnson’s opinion that, considering the physical restrictions when

combined with Mr. Smith’s complaints of pain, it would be very difficult for him to

work.

However, it was also Dr. Johnson’s testimony that he would not impose any

additional restrictions on Mr. Smith other than those identified by Dr. Beurlot and

those identified as a result of the FCE. Moreover, Dr. Johnson explained that, as a

family practitioner, he “look[s] at things a little differently” than what is focused on

in the other examinations. In his words, he “approach[es] it just purely from a pain

issue of what the patient can tolerate and can’t tolerate.” Additionally, while the FCE

and Dr. Beurlot “are dealing more with the actual body’s ability to do something,” Dr.

Johnson “approach[es] it mainly from just a pain level.” Ultimately, Dr. Johnson

testified that he would permit Mr. Smith to attempt a job that would allow him the

freedom to alternate sitting, standing, and walking, if the position were within the

physical limitations identified by Dr. Beurlot and the FCE.

Jurisprudence

The WCJ cited Dousay v. Dousay Floor Covering, 07-195, 07-196 (La.App.

3 Cir. 9/12/07), 966 So.2d 677, 966 So.2d 684, writ denied, 07-2023 (La. 12/7/07),

969 So.2d 639, in support of his conclusion that Mr. Smith failed to prove his

entitlement to PTD benefits. In Dousay, as in the case at bar, the claimant appealed

6 the denial of his claim for PTD benefits. On appeal, this court found it “noteworthy

that the results of the FCE revealed that Mr. Dousay fell within the U.S. Department

of Labor’s light to very heavy physical demand levels.” Id. at 681-82. We noted in

Dousay that “[d]espite the testimony offered by Mr. Dousay and his wife as to the

physical limitations suffered by Mr. Dousay because of continued pain, the WCJ

correctly noted the insufficiency of these facts to support a claim for permanent total

disability benefits.” Id. at 682. “As indicated by the WCJ, none of Mr. Dousay’s

treating physicians testified that he was ‘physically unable to engage in any

employment’ as required by La.R.S. 23:1221(2)(c).” Id. We, therefore, affirmed the

judgment of the WCJ, finding that Mr. Dousay was not entitled to PTD benefits since

he failed to meet his burden of proof under La.R.S. 23:1221.

Dresser also refers this court to Bank of Winnfield & Trust Co. v. Collins,

31,473 (La.App. 2 Cir. 2/24/99), 736 So.2d 263, which we find to be instructive on

the issue of PTD status. In Bank of Winnfield, 763 So.2d at 266, “the claimant

testified that she had been unemployed since the accident and unable to work because

of the continuing pain.” Although a physician testified that she was “‘permanently

disabled’ from performing any job, he acknowledged that other than her subjective

complaints of pain, there was no physical reason why [the] claimant could not engage

in light-duty work activities.” Id. In describing the type of work that the claimant

would be able to perform, it was the doctor’s testimony that the “claimant would only

be able to perform a ‘sedentary’ type of job at home, where she could take frequent

breaks, because she was not capable of sitting or standing for any length of time

without rest intervals.” Id. In considering the issue of PTD status, the second circuit

reasoned as follows:

Following the 1983 amendments to the workers’ compensation statute, evidence that an employee could not return to any gainful

7 employment without suffering substantial pain is no longer sufficient to support an award of permanent total disability benefits. Long v. Manville Forest Products Corp., 554 So.2d 181 (La.App. 2d Cir.1989); Perrodin v. St. Landry Parish School Bd., 95-1563 (La.App. 3rd Cir. 5/22/96), 676 So.2d 612. Here, Dr. Weiss testified that the basis of his opinion concerning claimant’s permanent disability was her continuing symptom of pain. However, the fact that claimant can only work in substantial pain is not sufficient to support recovery of permanent total disability benefits. On the basis of this record, we cannot say the workers’ compensation judge was clearly wrong in finding that the claimant failed to prove by clear and convincing evidence that she was permanently and totally disabled.

Id. at 266-67. See also, Whatley v. Hartford Accident & Indem. Co., 509 So.2d 671

(La.App. 3 Cir.), writ denied, 512 So.2d 441 (La.1987).

Conclusion

Having reviewed the evidence in the record and the jurisprudence cited by the

parties herein, we find that there are two permissible views of the evidence. We are

unable to conclude that the WCJ was manifestly erroneous in concluding that Mr.

Smith failed to meet his burden of proving, by clear and convincing evidence, that he

is unable to engage in any employment. Rather, based upon all of the evidence

discussed in detail above, the record clearly establishes that Mr. Smith is able to

engage in employment, albeit with pain and restrictions. We are cognizant of the

objective physical condition of Mr. Smith, and we do not question the veracity of his

subjective complaints of pain; however, that alone does not render him permanently

and totally disabled pursuant to La. R.S. 23:1221 and the jurisprudence interpreting

same.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge

in favor of Dresser Industries, Inc., is affirmed. Costs of this appeal are assessed to

Gary Smith.