Hebert v. Terrebonne Parish School Bd.

879 So. 2d 222, 2004 La. App. LEXIS 1256, 2004 WL 1077986
CourtLouisiana Court of Appeal
DecidedMay 14, 2004
Docket2003 CA 1444
StatusPublished
Cited by6 cases

This text of 879 So. 2d 222 (Hebert v. Terrebonne Parish School Bd.) 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
Hebert v. Terrebonne Parish School Bd., 879 So. 2d 222, 2004 La. App. LEXIS 1256, 2004 WL 1077986 (La. Ct. App. 2004).

Opinion

879 So.2d 222 (2004)

Emmalene K. HEBERT
v.
TERREBONNE PARISH SCHOOL BOARD.

No. 2003 CA 1444.

Court of Appeal of Louisiana, First Circuit.

May 14, 2004.

*224 J. Rene Williams, Houma, Counsel for Plaintiff/Appellant Emmalene K. Hebert.

Bernard F. Levy, Houma, Counsel for Defendant/Appellee Terrebonne Parish School Board.

Before: CARTER, C.J., PARRO, and GUIDRY, JJ.

GUIDRY, J.

In this workers' compensation action, plaintiff, Emmalene Hebert, appeals the judgment of the Office of Workers' Compensation (OWC) dismissing her claim for compensation with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In May 1993, Ms. Hebert was injured while employed by the defendant, Terrebonne Parish School Board (School Board), as a teacher's aide. Thereafter, the School Board voluntarily paid compensation benefits in the amount of $116.11 per week. Beginning in 1995, Ms. Hebert also started to receive disability retirement benefits from the Teachers' Retirement System. However, in March 2001,[1] the School Board stopped paying workers' compensation benefits based on an alleged overpayment that had occurred.

On February 20, 2002, Ms. Hebert filed a disputed claim form with the OWC, requesting compensation benefits to which she was entitled from the date the School Board stopped making payments. In its answer, the School Board stated that Ms. Hebert's actual compensation rate was $112.27 per week. The School Board also claimed that, because Ms. Hebert was receiving disability retirement benefits from the Teacher's Retirement System and the School Board contributed to the retirement system, it is entitled to a credit for a portion of such payments against its workers' compensation liability. Finally, the School Board contended, in response to Ms. Hebert's claims, that she has been compensated for the period during which she was permanently disabled and that she is capable of engaging in employment earning ninety percent or more of her average weekly wage at the time of her injury.

*225 Following a hearing, the workers' compensation judge signed a judgment on April 24, 2003, finding that Ms. Hebert: (1) failed to prove by clear and convincing evidence that she is unable to engage in employment of any kind; (2) failed to prove by clear and convincing evidence that she is totally and permanently disabled; (3) failed to prove by clear and convincing evidence that she is unable to earn ninety percent of her pre-injury wages; and (4) is not entitled to supplemental earnings benefits (SEB). Additionally, the workers' compensation judge found: (1) Ms. Hebert was overpaid compensation benefits by the School Board and therefore, the School Board is entitled to recover the overpayment in the total amount of $1,516.80 from Ms. Hebert's future benefits; and (2) the School Board is entitled to an offset against compensation liability in the amount of $9,988.52, which is 61.72% of Ms. Hebert's paid retirement benefits. Accordingly, the workers' compensation judge dismissed Ms. Hebert's compensation claim with prejudice.

ASSIGNMENTS OF ERROR

Ms. Hebert now appeals from this judgment and asserts the following assignments of error:

1. The workers' compensation judge erred in concluding that the School Board was entitled to a credit for alleged overpayments previously made because of the School Board's failure to properly calculate the amount of her benefits or to properly calculate an offset against her disability retirement benefits, to which it may be been entitled.
2. The workers' compensation judge erred in concluding that Ms. Hebert failed to prove by clear and convincing evidence that she is unable to engage in employment of any kind.
3. The workers' compensation judge erred in concluding that Ms. Hebert failed to prove by clear and convincing evidence that she is totally and permanently disabled.
4. The workers' compensation judge erred in concluding that Ms. Hebert failed to prove by clear and convincing evidence that she is unable to earn ninety percent of her pre-injury wages.
5. The workers' compensation judge erred in concluding that Ms. Hebert is not entitled to SEB.

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, p. 7 (La.7/1/97), 696 So.2d 551, 556. In applying the manifest error 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, 96-2840 at pp. 7-8, 696 So.2d at 556. As such, even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Williams v. Wal-Mart Stores, Inc., 00-1347, p. 4 (La.App. 1st Cir.9/28/01), 809 So.2d 294, 298. Further, where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Williams, 00-1347 at p. 4, 809 So.2d at 298.

*226 Credit for Overpayment of Compensation Benefits

Louisiana Revised Statutes 23:1206 provides as follows:

Any voluntary payment or unearned wages paid by the employer or insurer either in money or otherwise, to the employee or dependent, and accepted by the employee, that were not due and payable when made, may be deducted from the payments to be made as compensation.

This statute entitles an employer to a credit for previous overpayments from future compensation, which may be due. Fontenot v. Trans Gulf, Inc., 95-0342, pp. 18-19 (La.App. 1st Cir.11/9/95), 664 So.2d 1238, 1250. Further, this statute applies even if the overpayment is due to the employer's error in calculating benefits. Ferrand v. D.H.L. Co., 614 So.2d 350, 354 (La.App. 4th Cir.1993)

In the instant case, the School Board voluntarily made compensation payments to Ms. Hebert. However, due to a miscalculation by the School Board, Ms. Hebert was paid an additional $3.84 per week for approximately seven years. As such, the workers' compensation judge determined that Ms. Hebert was paid compensation in the amount of $1,516.80, which was not due and payable when made. In accordance with La. R.S. 23:1206, the School Board was entitled to a credit for its overpayment of benefits. Additionally, it has been held that discontinuation of benefits until the overpayment is recouped is permissible and proper under La. R.S. 23:1206. See Breaux v. Petro Drive, Inc., 534 So.2d 48, 49 (La.App. 3rd Cir.1988); Ferrand, 614 So.2d at 354. Therefore, we find no error in the judgment of the workers' compensation judge, finding that the School Board is entitled to recover its overpayment from Ms. Hebert's future benefits.

Offset or Credit for Disability Retirement

As stated previously, Ms. Hebert not only received compensation payments from the School Board, but beginning in 1995, she also started to receive disability retirement benefits from the Teachers' Retirement System. According to the applicable version of La. R.S. 23:1225(C)(1):

If an employee receives remuneration from:

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Bluebook (online)
879 So. 2d 222, 2004 La. App. LEXIS 1256, 2004 WL 1077986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-terrebonne-parish-school-bd-lactapp-2004.