Gracianette v. Emeril's Restaurant

761 So. 2d 34, 99 La.App. 4 Cir. 0981, 2000 La. App. LEXIS 1052, 2000 WL 528402
CourtLouisiana Court of Appeal
DecidedApril 5, 2000
DocketNo. 99-CA-0981
StatusPublished
Cited by1 cases

This text of 761 So. 2d 34 (Gracianette v. Emeril's Restaurant) 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
Gracianette v. Emeril's Restaurant, 761 So. 2d 34, 99 La.App. 4 Cir. 0981, 2000 La. App. LEXIS 1052, 2000 WL 528402 (La. Ct. App. 2000).

Opinion

BAGNERIS, Judge.

Plaintiff/Appellant, Patricia Gracianette (“Ms. Gracianette”), appeals the judgment of the Office of Workers’ Compensation, whereby, the Workers’ Compensation Judge (“WCJ”) found in favor of Defendant/Appellee, Emeril’s Restaurant (“Em-eril’s”) and against Ms. Gracianette. The WCJ ruled that Ms. Gracianette was not entitled to reinstatement and/or continued workers’ compensation indemnity or medical benefits. On this basis, the WCJ dismissed Ms. Gracianette’s claim at her cost. On appeal, Ms. Gracianette argues that the WCJ erred by failing to award her additional Supplemental Earnings Benefits. Ms. Gracianette also argues that the WCJ erred in finding that she is not entitled to any additional medical benefits. For the reasons that follow, we affirm the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

The relevant facts of this case are not in dispute. Plaintiff/Appellant, Ms. Gracian-ette, was employed as a bartender with Emeril’s Restaurant. On April 3, 1993, while working as a bartender at Emeril’s, Ms. Gracianette sustained injury when she lifted a soft drink canister within the course and scope of her employment. After treatment for her injuries, Ms. Gra-cianette was left with permanent restrictions which she contends kept her from working as a bartender and also limited her to working forty (40) hours per week. Notably, at the time of her injury, Ms. Gracianette was also working as a Real Estate agent with Gertrude Gardner Real Estate Agency (“Gertrude Gardner”). Ms. Gracianette was ultimately able to return to work as a real estate agent with Gertrude Gardner, even with her restrictions. The question at trial was whether Emeril’s owed Ms. Gracianette Supplemental Earnings Benefits based upon her inability to return to her bartending job.

On December 19, 1997, trial was held, and the trial court ruled that Ms. Gracian-ette was not entitled to any additional indemnity benefits or medical benefits. It is from this ruling that Ms. Gracianette now appeals.

DISCUSSION

Standard of Review

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Freeman v. Poulan/Weed Eater, 93-1530, (La.1/14/94), 630 So.2d 733. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Banks, supra; Freeman, supra; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Mart v. Hill, 505 So.2d 1120 (La.1987). Where there are two permissible views of the ^evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Banks, supra; Stobart, supra. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Banks, supra; Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in failing to award additional Supplemental Earnings Benefits to the Plaintiff/Appellant.

On appeal, Ms. Gracianette contends that the WCJ was clearly wrong in finding [37]*37that she was not entitled to additional Supplemental Earnings Benefits. At the time of the accident, Ms. Gracianette was working a full-time job as a real estate agent for Gertrude Gardner during the day, and a part-time job as a bartender at Emeril’s on certain evenings. In determining whether or not Ms. Gracianette was entitled to additional Supplemental Earnings Benefits, the WCJ compared Ms. Gracianette’s pre-injury wages as a bartender to her post-injury wages as a real-estate agent and concluded that Ms. Gra-cianette was able to earn 90% of her pre-injury wages as a bartender and, as a result, was not entitled to additional Supplemental Earnings Benefits.

Ms. Gracianette argues that the WCJ erred by comparing her pre-injury wages as a bartender to her post-injury wages as a real-estate agent in order to determine whether or not she was entitled to Supplemental Earnings Benefits. She argues that the WCJ should have only compared her pre-injury wages as a bartender to her post-injury wages as a bartender. We disagree with this argument.

Supplemental Earnings Benefits

The criteria for the payment of Supplemental Earnings Benefits is set forth in LSA-R.S. 23:1221(3). Under the provisions of LSA-R.S. 23:1221(3)(a), an employee is entitled to receive Supplemental Earnings Benefits if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. McCarroll v. Airport Shuttle, Inc., 99-0511 (La.App. 4 Cir. 9/29/99), 743 So.2d 827; Freeman, supra.

Once the employee’s burden is met, the burden then shifts to the employer who, in order to defeat the employee’s claim for Supplemental Earnings Benefits or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was available to the employee in his or the employer’s community or reasonable geographic region. The amount of an award of Supplemental Earnings Benefits is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. McCarroll, supra; See, Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, LSA-R.S. 23:1221(3)(a).

Analysis

This case presents an interesting set of circumstances because it involves a “moonlighting” employee, Ms. Gracianette, who, at the time of the accident, was working full-time as a real estate agent during the day and part-time as a bartender at night. At trial, Ms. Gracianette testified that prior to the April 3, 1993 accident at Emeril’s, she had been working for three years at Emeril’s. She also testified that for one year prior to the accident, she had simultaneously been working as a real estate agent with Gertrude Gardner. Ms. Gracianette stated that during this year prior to the accident, she would basically work her real estate job during the day for approximately forty (40) hours per week, and she would work her Emeril’s job on certain evenings for approximately thirty (30) hours per week.

On April 3, 1993, soon after the accident, Ms. Gracianette reported the accident to her supervisor at Emeril’s, who instructed her to go to Ochsner Medical Center’s Emergency Room. Ms. Gracianette did so. Ms. Gracianette subsequently chose to be treated by Dr.’s Douglas Swift and Rand Voorhies at Ochsner Hospital. Dr. Robert Mímeles, Emeril’s choice of physician, also treated Ms. Gracianette. Ms. Gracianette continued to work at her full-time job as a real estate agent after the accident. Em-eril’s asserts that Ms. Gracianette worked [38]

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761 So. 2d 34, 99 La.App. 4 Cir. 0981, 2000 La. App. LEXIS 1052, 2000 WL 528402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gracianette-v-emerils-restaurant-lactapp-2000.