Hall v. Macpapers, Inc.

95 So. 3d 1131, 2011 La.App. 4 Cir. 1548, 2012 WL 1950151, 2012 La. App. LEXIS 780
CourtLouisiana Court of Appeal
DecidedMay 30, 2012
DocketNo. 2011-CA-1548
StatusPublished
Cited by7 cases

This text of 95 So. 3d 1131 (Hall v. Macpapers, Inc.) 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
Hall v. Macpapers, Inc., 95 So. 3d 1131, 2011 La.App. 4 Cir. 1548, 2012 WL 1950151, 2012 La. App. LEXIS 780 (La. Ct. App. 2012).

Opinion

JAMES F. McKAY III, Judge.

[ ]Worker’s Compensation claimant, Derrick Hall, seeks a review of the judgment from the Office of Workers’ Compensation (“OWC”), District 8, Docket # 09-10143, Diane R. Lundeen, Office of Workers’ Compensation Judge (“WCJ”), rendered in favor of the defendant, MaePapers Inc. For the reasons set forth below, we affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

On August 19, 2009, Derrick Hall was involved in a motor vehicle accident while in the course and scope of his employment, as a truck driver, for MaePapers Inc. (“MaePapers”). As a result of this accident, he essentially sustained injuries to his neck and back and was prescribed a series of pain medications, to wit, Lorcet 10 mg. and Darvocet-N-100. Pursuant to La. R.S. 23:1121(1), he received Temporary Total Disability (“TTD”) indemnity benefits from the date of the accident until November 19, 2009 when his employer, MaePapers, requested that he return to work. Mr. Hall was released to return to work by various treating medical specialist with the caveat that the work be sedentary with light duty jobs. | gMacPapers, in an attempt to accommodate these work restrictions, offered several sedentary positions to Mr. Hall with a pay scale comparable to his pre-accident pay. Mr. Hall never accepted any of the positions, nor did he return to work. In the months that followed the accident and until the trial one and a half years later, Mr. Hall continued visits with various medical physicians. Mr. Hall maintains that his primary reason for not returning to work is that he is in pain and cannot perform his job duties because the prescribed medications produce side-effects. These side-effects include complaints of nausea, dizziness and sleepiness, which he asserts essentially prevent him from performing any job, even sedentary work, and make any means of transportation to and from work impossible.

The deposition testimonies of his various treating physicians were admitted into evidence, including the following: Jason Kennedy D.C., Mr. Hall’s chiropractor; Dr. Robert Steiner, MaePapers’ independent medical examiner (“IME”) physician; Dr. Elliot Greenberg, Mr. Hall’s choice of physicians; Dr. Charles Billings, Mr. Hall’s orthopedist; and Dr. Ralph Katz, the court appointed physician.

The WCJ held: (1) that Derrick Hall suffered an accident while in the course and scope of his employment when he was [1134]*1134involved in an auto accident; (2) that Derrick Hall sustained injuries as a result of the August 19, 2009, work-related accident; (3) that Derrick Hall, as a result of the subject work-related accident, was temporarily totally disabled from August 19, 2009 through November 18, 2009, and that the employer properly paid temporary total disability (“TTD”) benefits toUMr. Hall during this period; and (4) that Mr. Hall was capable of working at a sedentary level on November 18, 2009. The WCJ further found (5) that Mr. Hall’s earnings are the same as his pre-injury wages; and (6) that on August 12, 2010, Mr. Hall was capable of working at a medium level; (7) that Mr. Hall failed to carry his burden, and that he is not entitled to supplemental earnings benefits (“SEB”); (8) that Mr. Hall’s work-related injuries necessitated medical care; (9) that Mr. Hall’s employer, MacPapers, shall pay the outstanding New Orleans East Medical Rehab totaling $1,815.82 in accordance with the OWC fee schedule; (10) that Mr. Hall’s employer, MacPapers, shall pay the outstanding American Radiological Services’ bill totaling $106.00 in accordance with the OWC fee schedule; and (11) that MacPapers was not arbitrary, capricious, or unreasonable in its discontinuance of Mr. Hall’s indemnity benefits. Further, the WCJ held (12) that MacPapers reasonably controverted Mr. Hall’s entitlement to indemnity benefits and denied Mr. Hall’s demand for penalties and attorney’s fees in connection with employer’s actions. The WCJ also found that (13) that Mr. Hall is entitled to ongoing necessary and related medical care in conformity with the Act; (14) that Mr. Hall is not entitled to penalties or attorney’s fees in connection with MacPa-pers’ failure to pay the American Radiological Services’ bill or the New Orleans East Rehab bill because Mr. Hall failed to demonstrate that he made written demand upon MacPapers as is required by La. R.S. 23:1120 E; (15) that Mr. Hall’s case is dismissed with prejudice; and (16) that interest shall attach in accordance with law; |4and (17) that the Functional Capacity Evaluation (“FCE”) report by Michael McNeil P.T., is admissible.

LAW AND DISCUSSION

On appeal, Derrick Hall ostensibly asserts that the WCJ erred in failing to find that MacPapers was arbitrary and capricious in terminating his TTD benefits, in failing to award SEB benefits and in failing to assess attorney’s fees and penalties.

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Winford v. Conerly Corp., 2004-1278, p. 15 (La.3/11/05), 897 So.2d 560, 569; Dean v. Southmark Constr., 2003-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117; Masinter v. Akal Sec., Inc., 2005-1236, p. 3 (La.App. 4 Cir. 6/7/06), 934 So.2d 201, 204. In applying the manifest error standard, the appellate court must determine not whether the fact finder was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Bell v. Mid City Printers, Inc., 2010-0818, p. 7 (La.App. 4 Cir. 12/22/10), 54 So.3d 1226, 1232 (citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 6 (La.7/1/97), 696 So.2d 551, 556).

INDEMNITY BENEFITS

The claimant asserts that the WCJ erred in failing to find that MacPapers was arbitrary and capricious in terminating and not reinstating his TTD benefits.

Temporary Total Disability Benefits

La. R.S. 23:1221(1). Temporary total disability:

|fi(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occu[1135]*1135pation for wages, 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 injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.
(b) For purposes of Subparagraph (l)(a) of this Paragraph, compensation for temporary disability shall not be awarded if the employee is engaged 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.

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Bluebook (online)
95 So. 3d 1131, 2011 La.App. 4 Cir. 1548, 2012 WL 1950151, 2012 La. App. LEXIS 780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-macpapers-inc-lactapp-2012.