Hinton v. Scott Hydraulics, Inc.

614 So. 2d 820, 1993 La. App. LEXIS 743, 1993 WL 45031
CourtLouisiana Court of Appeal
DecidedFebruary 24, 1993
Docket24464-CA
StatusPublished
Cited by7 cases

This text of 614 So. 2d 820 (Hinton v. Scott Hydraulics, 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
Hinton v. Scott Hydraulics, Inc., 614 So. 2d 820, 1993 La. App. LEXIS 743, 1993 WL 45031 (La. Ct. App. 1993).

Opinion

614 So.2d 820 (1993)

George L. HINTON, Plaintiff-Appellant,
v.
SCOTT HYDRAULICS, INC., Defendant-Appellee.

No. 24464-CA.

Court of Appeal of Louisiana, Second Circuit.

February 24, 1993.
Writ Denied April 30, 1993.

*822 Bailey & Dawson by Jack Bailey, Shreveport, for plaintiff-appellant.

Wiener, Weiss, Madison & Howell by Larry Feldman, Jr., Shreveport, for defendant-appellee.

Before NORRIS, STEWART and WILLIAMS, JJ.

STEWART, Judge.

George L. Hinton appeals the dismissal of his workers' compensation claim against his employer, Scott Hydraulics, Inc. Hinton contends that the administrative hearing officer erred in her determination that Hinton had already received the proper amount of compensation to which he was entitled for his injury. He claims entitlement to temporary total disability benefits and/or supplemental earnings benefits (SEB), and rehabilitation benefits, pursuant to LSA-R.S. 23:1221(1), 23:1221(3), and 23:1226, respectively. We reverse.

FACTS

George Hinton was employed by Scott Hydraulics, Inc. as a welder. In July 1988, his wages were $10 per hour and he averaged $400 per week. On July 13, 1988, Hinton sustained an injury in the course of his employment. The injury caused pain in his shoulders. He sought medical treatment soon thereafter but continued to work at Scott Hydraulics until January 4, 1989 when he could no longer work due to the injury. After further medical treatment, as well as arthroscopic surgery on each shoulder, Hinton was released to return to work on January 22, 1990 by his treating physician and his physical therapist. However, Hinton's position had been filled and Scott Hydraulics did not re-hire him. Scott Hydraulics paid Hinton workers' compensation benefits from January 4, 1989 until January 22, 1990. Hinton sought other welding jobs, but could not find one. On May 19, 1990 he began work at minimum wage ($3.80) as a security guard with Vinson Guard Service, Inc.

The administrative hearing officer specifically found that Hinton's July 13, 1988 accident caused him temporary total disability from January 3, 1989 through January 22, 1990. She also found that Hinton was physically able to return to his previous employment after January 22, 1990. The hearing officer determined that Hinton's discharge from employment was caused by economic necessity to fill his position, and was not retaliation. In accordance with her conclusion that Hinton had received the proper amount of compensation for his injury, she dismissed his claim with prejudice.

Hinton appeals, asserting that the hearing officer committed manifest error by (1) failing to award rehabilitation benefits, (2) failing to award temporary total disability benefits from January 22, 1990 until May 19, 1990, and (3) failing to award supplemental earnings benefits from January 22, 1990, based upon zero earning capacity prior to May 19, 1990 and thereafter based upon minimum wage.

DISCUSSION

With the exception of temporary total disability benefits, we agree with Hinton's assignments of error.

Temporary Total Disability Benefits

In order to receive benefits for temporary total disability, a claimant must prove, by a preponderance of the evidence, that he is unable to engage in any self-employment or gainful occupation for wages. LSA-R.S. 23:1221(1); Patton v. Mini-Togs, Inc., 575 So.2d 864, 869 (La. App.2d Cir.1991), writ denied, 578 So.2d 140 (La.1991); Brown v. Commercial Union Ins. Co., 548 So.2d 954 (La.App. 3d Cir. 1989). The medical evidence indicated that Hinton could engage in some form of employment beginning on January 22, 1990. Hinton sought employment from January 29, 1990 until he was hired a few months later as a security guard. At the time of trial, Hinton was still employed as a security *823 guard. His employer testified by deposition that Hinton was an excellent worker. Thus, Hinton failed to carry his burden to prove by a preponderance of the evidence that he was temporarily, totally disabled as defined by R.S. 23:1221. The hearing officer properly denied benefits for temporary total disability.

Supplemental Earnings Benefits

By dismissing Hinton's claims, the hearing officer denied his claim for supplemental earnings benefits. The claimant in an SEB case must prove by a preponderance of evidence that his work-related injury rendered him unable to earn 90 percent of his pre-injury wages. Lubom v. L.J. Earnest, Inc., 579 So.2d 1174 (La. App. 2d Cir.1991); Barton v. Wausau Ins. Co., 545 So.2d 1248 (La.App. 2d Cir.1989). To determine whether the claimant has established a prima facie case for entitlement to SEB, the court must consider whether he presented sufficient evidence to prove he was unable to earn the requisite percentage of his pre-injury wages. Mills v. Guaranty Industrial Contractors, Inc., 557 So.2d 326 (La.App. 4th Cir.1990); Williams v. Avondale Indus., Inc., 521 So.2d 491 (La.App. 4th Cir.1988). Once the SEB claimant establishes his prima facie case, the burden shifts to the employer to show that the claimant is physically capable of work that paid at 90 percent or more of his pre-injury wages and that such work was offered or available in the claimant's reasonable geographic region. Lubom, Mills, and Barton, all supra.

At issue is whether Hinton sustained his burden of prima facie proof by a preponderance of evidence that his work-related injury rendered him unable to earn 90% of his pre-injury wages, such that the trier of fact's decision to not award SEB is clearly wrong. Cassard v. American General Fire & Casualty Co., 568 So.2d 1151 (La. App. 5th Cir.1990) at 1155 citing Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La. 1989); also, compare Lott v. Reintjes Industrial Services of Louisiana, Inc., 540 So.2d 472 (La.App. 1st Cir.1989) at 476.

In a suit for workers' compensation benefits, the trier of fact should accept the uncontradicted testimony of a witness, even if the witness is a party, unless there are circumstances which otherwise cast doubt on its reliability. Moore v. Mason & Dixon Tank Lines, 540 So.2d 525, 529 (La. App. 1st Cir.1989), writ denied, 541 So.2d 1390 (La.1989). The trier of fact should take into account all factors which might bear on his ability to earn a wage. Cassard, supra; Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). The opinion of a physician or other medical expert about disability does not necessarily determine legal disability. Johnson v. Ins. Co. of N. America, 454 So.2d 1113, 1117 (La. 1984).

Hinton was a manual laborer who had been trained, by experience, as a welder. Even though he had a ninth grade education, he could neither read a newspaper nor write well enough to fill out a job application. The record shows that the job Hinton found pays minimum wage ($3.85 per hour at the time of the March 13, 1990 trial). This amount is less than 90 percent of the $10 per hour which he earned at Scott Hydraulics.

Paul Procell, an occupational therapist, signed the report from the Work Hardening Program. Procell indicated that Hinton could (1) occasionally lift or carry up to 50 pounds, (2) frequently lift 30 pounds, and (3) constantly lift 10 pounds. Although arthroscopic surgery had been performed on both of Hinton's shoulders, the conclusions of the January 18, 1990 report (which indicated Hinton could return to work as of January 22, 1990) were based upon the left upper extremity.

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614 So. 2d 820, 1993 La. App. LEXIS 743, 1993 WL 45031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hinton-v-scott-hydraulics-inc-lactapp-1993.