Handy v. Tembec

927 So. 2d 401, 2005 WL 2898185
CourtLouisiana Court of Appeal
DecidedNovember 4, 2005
DocketNo. 2004 CA 1877
StatusPublished
Cited by2 cases

This text of 927 So. 2d 401 (Handy v. Tembec) 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
Handy v. Tembec, 927 So. 2d 401, 2005 WL 2898185 (La. Ct. App. 2005).

Opinion

J^McCLENDON, J.

This workers’ compensation action is before us on appeal from a judgment in favor of the claimant, Barbara Handy, and against her employer, TEMBEC. For the following reasons, we affirm.

[403]*403FACTS AND PROCEDURAL HISTORY

On May 12, 2000, Ms. Handy was involved in a serious work-related accident, while in the course and scope of her employment as a stack helper with TEM-BEC, a paper plant located in St. Fran-cisville, Louisiana. At the time of the accident, Ms. Handy had been employed at TEMBEC, or its predecessors, for approximately twenty-one years. The May 12, 2000 injuries occurred when Ms. Handy was crushed between a buggy carrying a roll of paper and a roll of paper on the plant floor. Ms. Handy was transported to Our Lady of the Lake Hospital where she remained for five days. Ms. Handy’s injuries included a right clavicle fracture, multiple rib fractures, and fractured pelvis.

Compensation benefits, including medical and indemnity benefits, were paid through July 1, 2001. Ms. Handy filed a disputed claim for compensation on May 15, 2002. Following a trial of the matter, the workers’ compensation judge (WCJ) concluded that the modified job offered to Ms. Handy was not a legitimate job offer. While recognizing the efforts of TEMBEC in vocational rehabilitation efforts for Ms. Handy, the WCJ ultimately concluded that TEMBEC failed to satisfy its burden of proof. Accordingly, The WCJ concluded that Ms. Handy was entitled to supplemental earnings benefits (SEBs) at the temporary total disability rate, from July 1, 2001 and continuing until such time that vocational rehabilitation efforts return her to employment that would allow for a reduction. The WCJ additionally awarded Ms. Handy $7,000.00 in attorney’s fees. Judgment was signed on October 2, 2003.

From this judgment, TEMBEC has taken a suspensive appeal, assigning the following as error:

1. The WCJ erred in finding that TEMBEC failed to meet its burden of proving available work within the restrictions of Ms. Handy’s ^treating physician despite the fact that TEMBEC tendered a modified position to Ms. Handy approved by the treating physician;
2. The WCJ erred in making unreasonable inferences of fact, and substituting her own opinion in place of the treating physician, in finding that the modified job offer tendered to Ms. Handy and approved by her treating physician were outside the restrictions imposed by the treating physician;
3. The WCJ erred in finding that it was inappropriate for TEMBEC to tender a temporary two-week job assignment to Ms. Handy to perform while the permanent modifications required by the treating physician were to be installed at the plant; and
4. The WCJ erred in making an arbitrary and capricious finding on the part of TEMBEC and awarding attorney’s fees in light of the fact that TEMBEC relied on the opinions of the treating physician, treating occupational therapist, occupational health care nurse and vocational rehabilitation counselor when offering modified employment to Ms. Handy and terminated benefits after Ms. Handy refused to attempt to work and resigned.

STANDARD OF REVIEW

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. As an appellate court, we cannot set aside the factual findings of the WCJ unless we determine that there is no reasonable fac[404]*404tual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Through Dep’t. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the factfinder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Scott v. Lakeview Regional Medical Center, 01-0538, pp. 3-4 (La.App. 1 Cir. 3/28/02), 818 So.2d 217, 220, writ denied, 02-1712 (La.10/04/02), 826 So.2d 1127. Accordingly, if there are two permissible views of the evidence, a factfin-der’s choice between them can never be manifestly erroneous or clearly wrong. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 9 (La.3/4/98), 708 So.2d 375, 381.

DISCUSSION

ASSIGNMENTS OF ERROR NUMBERS 1-3 JOB AVAILABILITY

In these assignments of error, TEMBEC essentially asserts that it met its burden of proving available work for Ms. Handy within the restrictions of her treating physician. Therefore, the award of benefits should bé reversed.

An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety-percent or more of his average pre-injury wages. LSA-R.S. 23:1221(3)(a). 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. This analysis is necessarily a facts and circumstances one in which the court is to be mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Banks, 96-2840 at pp. 8-9, 696 So.2d at 556; Hebert v. Terrebonne Parish School Bd., 03-1444, pp. 9-10 (La.App. 1 Cir. 5/14/04), 879 So.2d 222, 228-29.

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, or to 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 offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. The employer may discharge its burden of proving job availability by establishing, at a minimum, the following:

(1) the existence of a suitable job within the claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
|fi(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.

Banks, 96-2840 at pp. 9-10, 696 So.2d at 557; Hebert, 03-1444 at p. 10, 879 So.2d at 229.

[405]*405Here, the parties stipulated that on May-12, 2000, Ms. Handy was employed by TEMBEC and that while in the course and scope of her employment sustained an injury.

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927 So. 2d 401, 2005 WL 2898185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/handy-v-tembec-lactapp-2005.