George v. Broadmoor Construction

692 So. 2d 22, 96 La.App. 1 Cir. 1074, 1997 La. App. LEXIS 878, 1997 WL 156745
CourtLouisiana Court of Appeal
DecidedMarch 27, 1997
DocketNo. 96 CA 1074
StatusPublished
Cited by2 cases

This text of 692 So. 2d 22 (George v. Broadmoor Construction) 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
George v. Broadmoor Construction, 692 So. 2d 22, 96 La.App. 1 Cir. 1074, 1997 La. App. LEXIS 878, 1997 WL 156745 (La. Ct. App. 1997).

Opinion

JaPITCHER, Judge.

In this appeal, plaintiff, Walter George, Jr., appeals from a hearing officer’s decision, finding that his employer correctly reduced his benefits to supplemental earnings benefits. We affirm.

FACTS

Plaintiff was employed as a laborer with Broadmoor Construction Company (Broad-moor) in Metairie, Louisiana. On January 4, 1993, while working, plaintiff injured his back when he “picked up on [a mortar] mixer.” Plaintiff reported the injury to his foreman, Danny Bardwell. Shortly after the injury, plaintiff went to his home in Springfield, Louisiana.

On the following day, plaintiff went to Lal-lie Kemp Hospital and was examined by a doctor and diagnosed with a back sprain. Subsequently, upon the suggestion of Broadmoor’s workers’ compensation insurer, F.A. Richard and Associates, Dr. Marvin Clifton, a neurosurgeon, began treating the plaintiff for lower back pain on January 19, 1993.1 Dr. Clifton had an MRI scan performed on plaintiff at the Seventh Ward Hospital and diagnosed plaintiff with a ruptured lumbar disc at the L4r-5 level. Dr. Clifton treated plaintiff with conservative care for several months. Following this care, Dr. Clifton opined that plaintiffs injury was going to require surgical intervention. Because Dr. Clifton had sustained a horseback riding injury, he referred plaintiff to Dr. Warren Williams, a neurosurgeon.

Dr. Williams began treating plaintiff for lower back pain on September 14, 1993. Although Dr. Williams performed plaintiffs surgery, plaintiff remained under Dr. Clifton’s care and treatment. Dr. Williams diagnosed plaintiff with a lumbar ^radiculopathy and treated plaintiff with conservative care. On plaintiffs October 28, 1993 visit, Dr. Williams felt that plaintiff would need surgery, and plaintiff desired to have the surgery, hoping that it would alleviate his pain. On March 2, 1994, Dr. Williams performed a left hemilaminectomy and left discectomy surgery at the L4-5 level. Following his surgery, plaintiff continued follow-up visits with both Drs. Clifton and Williams.

On plaintiffs November 8,1994 office visit, Dr. Williams felt that plaintiff had reached maximum medical improvement and could return to light duty work with restrictions against long periods of sitting or standing and excessive or frequent climbing, stooping, crawling and bending. Dr. Williams released plaintiff from his care on June 22, 1995. As of July 18, 1995, Dr. Clifton felt that plaintiff had reached maximum medical improvement and could return to light duty work with restrictions against sitting or standing for more than a half hour, repetitive bending of the lower back and lifting more than 20 to 30 pounds.

At the request of Julie Smith, a rehabilitation consultant with F.A. Richard and Associates, David Heap, a physical therapist with the Center for Function Performance, saw plaintiff on August 29, 1994, for the purpose of evaluating him to determine in what capacity plaintiff could safely return to work. [24]*24Plaintiff was scheduled to undergo two days of testing. However, plaintiff was only evaluated for three hours on the first day and did not return for further evaluation. Based upon the three hour evaluation, Mr. Heap found a number of inconsistencies throughout plaintiffs testing. Mr. Heap performed a Waddell’s test which indicated that plaintiff was magnifying his symptoms. Mr. Heap indicated that he could not identify any mus-culoskeletal deficiency which could account for the types of pain plaintiff was having.

F.A. Richard and Associates hired Nancy Springier, a vocational rehabilitation counsel- or with Farrell Health Care Management, to assess plaintiff for ^appropriate employment positions. Ms. Springier began working on plaintiffs file in September of 1994, after the file was transferred to her from another employee, Richard Smith, who had initially met with plaintiff and learned plaintiffs work history and educational background. Ms. Springier contacted plaintiff by telephone and left messages for him, but plaintiff never returned Ms. Springler’s telephone calls. At this time, Ms. Springier was instructed to close plaintiffs file.

In March, 1995, Ms. Springier reopened plaintiffs file, attempting to proceed with rehabilitation. Ms. Springier had received medical reports from both Drs. Clifton and Williams indicating that plaintiff was capable of performing light duty work with restrictions and was at maximum medical improvement post-surgery.

Ms. Springier conducted a labor market survey in plaintiffs geographical area, locating eight possible jobs within the physical restrictions outlined by Dr. Clifton and Dr. Williams. These job descriptions were sent to both Drs. Clifton and Williams. Dr. Clifton approved the following jobs: security guard, production worker-candy store, customer service, and bagger. Dr. Williams approved the following jobs: auto parts deliverer, deli cutter-slicer, bagger, customer service, production worker-candy store, cashier, security guard, and assembly line tech. Ms. Springier sent a letter dated April 13, 1995, informing plaintiff of the available jobs along with the name of each employer and how plaintiff could apply for the position. Shortly thereafter, Ms. Springier closed plaintiffs file.

F.A. Richard and Associates paid plaintiff temporary total disability benefits in the amount of $172.672 per week until May, 1995, when it reduced the temporary total disability benefits to supplemental earnings benefits in the amount of $59.33 Isper week. Plaintiff filed a claim with the Office of Workers’ Compensation on August 15, 1995, alleging that Broadmoor paid the incorrect amount in temporary total disability benefits and supplemental earnings benefits.

An administrative hearing was held on February 28, 1996. At the hearing, plaintiff contended that he did not receive any rehabilitation and that Broadmoor wrongfully reduced his temporary total disability benefits to supplemental earnings benefits. Following the hearing, the hearing officer rendered a judgment in favor of Broadmoor, finding that Broadmoor paid plaintiff workers’ compensation benefits in accordance with the statute. Plaintiff now appeals, arguing that the trial court erred when it determined that plaintiff had received adequate and sufficient vocational rehabilitation, thereby eliminating his entitlement to temporary total disability benefits.

VOCATIONAL REHABILITATION SERVICES

Plaintiff contends that Broadmoor failed to provide him with meaningful vocational rehabilitation services, and he is entitled to receive temporary total disability benefits until he has received meaningful vocational rehabilitation services.

In Louisiana, when an employee suffers a compensable injury which precludes him from earning wages equal to those earned pre-injury, then he shall be entitled to [25]*25prompt rehabilitation services. LSA-R.S. 23:1226(A). Temporary total disability benefits paid pursuant to LSA-R.S. 23:1221(1) shall include such period as the employee may be receiving training or education under a retraining program pursuant to this section. LSA-R.S. 23:1226(F); Thibodeaux v. Robinswood School, 93-1130, p. 3 (La.App. 3rd Cir. 4/6/94); 635 So.2d 585, 587, writ denied, 94-1188 (La.6/24/94); 640 So.2d 1355.

LSA-R.S. 23:1226(B) provides as follows:

|fiB. (1) The goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs.

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Bluebook (online)
692 So. 2d 22, 96 La.App. 1 Cir. 1074, 1997 La. App. LEXIS 878, 1997 WL 156745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-v-broadmoor-construction-lactapp-1997.