Henry v. Schwegmann Giant Supermarkets, Inc.

665 So. 2d 740, 95 La.App. 5 Cir. 327, 1995 La. App. LEXIS 3491, 1995 WL 734427
CourtLouisiana Court of Appeal
DecidedDecember 13, 1995
Docket95-CA-327
StatusPublished
Cited by4 cases

This text of 665 So. 2d 740 (Henry v. Schwegmann Giant Supermarkets, 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
Henry v. Schwegmann Giant Supermarkets, Inc., 665 So. 2d 740, 95 La.App. 5 Cir. 327, 1995 La. App. LEXIS 3491, 1995 WL 734427 (La. Ct. App. 1995).

Opinion

665 So.2d 740 (1995)

Sandra HENRY
v.
SCHWEGMANN GIANT SUPERMARKETS, INC.

No. 95-CA-327.

Court of Appeal of Louisiana, Fifth Circuit.

December 13, 1995.
Rehearing Denied January 17, 1996.
Writ Denied March 29, 1996.

*741 Christopher M. Landry, Metairie, for Appellant/Defendant Schwegmann Giant Supermarkets, Inc.

Nicolas Estiverne, Nicolas Estiverne & Associates, New Orleans, for Appellee/Plaintiff Sandra Henry.

Before KLIEBERT, GOTHARD and CANNELLA, JJ.

CANNELLA, Judge.

Defendant, Schwegmann Giant Supermarkets, Inc. (Schwegmann), appeals from a workers compensation judgment in favor of plaintiff, Sandra Henry. We affirm that Henry is entitled to supplemental earnings benefits (SEBs). We amend to reduce the amount of penalties and attorneys fees owed by Schwegmann and affirm as amended. We reverse as to penalties and attorney's fees for failure to pay for Henry's shoes. We amend to provide that Schwegmann is liable for travel expenses related to Henry's medical necessities and rehabilitation.

Henry was injured on July 24, 1990 when a meat rack fell on her, causing injuries to her right arm, chest, back, hip and ankle. The parties stipulated at trial that Henry was injured while in the course and scope of her employment with Schwegmann and that she was earning $4.85 per hour and her weekly wage was $180.67. There was no dispute of her medical condition. She has a chronic ankle problem requiring the use of elastic stockings, orthopedic shoes and a special ankle brace. She also continues to suffer some discomfort with her right rib and shoulder. There was no medical testimony and Henry's medical reports were introduced without objection. She was paid compensation from the date of the accident until May 1993. Then, Schwegmann terminated Henry's workers compensation benefits because she was offered a position at one of their stores at the same salary and she declined. As a result, Henry filed a claim for SEBs and penalties and attorney fees for the arbitrary and capricious failure to pay benefits.

The hearing on the matter was held on March 28 and 29, 1994. The hearing officer rendered a judgment in favor of Henry on July 21, 1994. She determined that Henry is entitled to disability from the date of the injury until June 1, 1993 and that she is entitled to SEBs beginning June 2, 1993 and continuing for the duration of her medically documented disability period. The judgment further ordered Schwegmann to pay all outstanding medical bills, medication expenses, transportation expenses, shoes and brace, as prescribed by Dr. Davis. The hearing officer found that the job offered to Henry was not reasonably accessible in her geographical region and not realistically obtainable with her restrictions, until she is provided with the necessary orthopedic prescriptions. In addition, the judgment ordered Schwegmann to pay penalties of $2000 and attorney fees of $3000 for its arbitrary and capricious refusal to pay SEBs and for its failure to timely authorize the payment for the prescription shoes.

On appeal, Schwegmann asserts that the hearing officer erred in awarding SEBs and in awarding penalties and attorney fees.

SUPPLEMENTAL EARNINGS BENEFITS

La.R.S. 23:1221(3) defines SEBs as follows:

(a) For injury resulting in the employee's inability to earn wages equal to ninety per cent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, 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 the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed *742 as four and three-tenths times the wages as defined in R.S. 23:1021(10).
(b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, earnings from odd-lot employment, sheltered employment, and employment while working in any pain.
(c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee's or employer's community or reasonable geographic region.
(ii) For purposes of Subparagraph (i) of this Subparagraph, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.

In Smith v. Louisiana Dept. of Corrections, 633 So.2d 129, 132 (La.1994), the Louisiana Supreme Court interpreted the statute as follows:

Entitlement to supplemental earnings benefits is governed by LSA-R.S. 23:1221(3). In order to recover, the employee must first prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of the wages he earned before the accident ... The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker's compensation law is to be liberally construed in favor of coverage ... `In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors which might bear on an employee's ability to earn a wage.'... Once the employee's burden is met, the burden of proof then shifts to the employer, who, if he wishes to contend that the employee is earning less than he is able to earn so as to defeat or reduce supplemental earnings benefits, bears the burden of proving 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.

See also: Jackson v. A.I.A., 94-371 (La.App. 5 Cir. 11/16/94), 646 So.2d 1088, 1091; Johnson v. Chateau Living Center, 94-989 (La. App. 5 Cir. 4/25/95), 653 So.2d 1367.

In this case, the facts show that Henry underwent surgery on her ankle to repair torn ligaments in November 1991. Following the surgery, she was ordered to wear an ankle brace, elastic stockings and prescription shoes. She continued to suffer swelling and pain in her ankle and some residual discomfort in her shoulder and rib.

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Bluebook (online)
665 So. 2d 740, 95 La.App. 5 Cir. 327, 1995 La. App. LEXIS 3491, 1995 WL 734427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-schwegmann-giant-supermarkets-inc-lactapp-1995.