Hurst v. Baker Sand Control

671 So. 2d 408, 94 La.App. 1 Cir. 2463, 1995 La. App. LEXIS 2754, 1995 WL 588317
CourtLouisiana Court of Appeal
DecidedOctober 6, 1995
Docket94 CA 2463
StatusPublished
Cited by9 cases

This text of 671 So. 2d 408 (Hurst v. Baker Sand Control) 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
Hurst v. Baker Sand Control, 671 So. 2d 408, 94 La.App. 1 Cir. 2463, 1995 La. App. LEXIS 2754, 1995 WL 588317 (La. Ct. App. 1995).

Opinion

671 So.2d 408 (1995)

Robert B. HURST
v.
BAKER SAND CONTROL.

No. 94 CA 2463.

Court of Appeal of Louisiana, First Circuit.

October 6, 1995.

*409 Magdalen B. Bickford, Metairie, for Plaintiff/Appellant Robert B. Hurst.

William H. Eckert, Metairie, for Defendant/Appellee, Baker Sand Control.

*410 Before CARTER, PITCHER and CRAIN[1], JJ.

CARTER, Judge.

This is an appeal from a judgment of the Office of Worker's Compensation, denying plaintiff's claim for supplemental earnings benefits.

BACKGROUND AND PROCEDURAL HISTORY

On January 15, 1992, plaintiff, Robert B. Hurst, district manager for the Houma office of Baker Sand Control (BSC), suffered a work-related accident, injuring his back. At the time of the accident, plaintiff was earning an annual salary of $68,500.00. Plaintiff was treated by Dr. Donald J. Judice, neurosurgeon, for an L5-S1 herniated disc and ultimately underwent back surgery on March 10, 1992. On April 8, 1992, Dr. Judice released plaintiff to return to work in his supervisory position with the following physical limitations: no lifting more than seventy pounds; no carrying more than fifty pounds; no sitting, standing, or walking for prolonged periods without taking a break; no working on heavy, vibrating machines; no climbing on a ladder; and no repetitive bending, stooping, or crawling. Plaintiff returned to work as district manager and continued working until November 8, 1992, at which time he was asked to resign from employment with BSC.

On January 19, 1993, plaintiff filed a Disputed Claim for Compensation with the Office of Worker's Compensation, indicating a bona-fide dispute as follows:

Since my injury, I've been asked to resign my job with Baker Sand Control or befired [sic] for missing too much work, being late or absent. In [sic] looking for a new job with the same work environment with no heavy lifting. Jobs are few and not hiring. I have no income coming in and cannot do heavy labor because of my back injury. Baker Sand Control has failed to pay me worker's compensation and medical benefits. I therefore request that [I] be awarded compensation benefits, medical expenses, penalties, costs and attorney's fees for their arbitrary and capricious denial of benefits.

On April 4, 1993, plaintiff was hired by Evans Cooperage Company, Inc. (Evans) as fill plant manager, earning an annual salary of $45,000.00.

On February 28, 1994, the matter went to trial. The parties entered into the following stipulations:

1. Plaintiff sustained an accident during the course and scope of his employment.
2. All medical records, medical reports, and medical testimony will coincide with the testimony of Dr. Judice.
3. All medical expenses have been paid, and compensation benefits were paid to plaintiff until he was released by Dr. Judice to return to work. There is no arbitrary and capricious claim with respect to these expenses and compensation benefits.
4. Plaintiff's employment with BSC was terminated on November 8, 1992, at which time his annual salary was $68,500.00, plus a possible 20% incentive bonus.
5. On April 4, 1993, plaintiff began working for Evans Cooperage Company, Inc. as a fill plant manager, earning $45,000.00 annually.

On July 28, 1994, the hearing officer rendered judgment in favor of BSC, dismissing, with prejudice, plaintiff's claim for compensation. In his reasons for judgment, the hearing officer stated, in pertinent part, as follows:

The hearing officer interprets that paragraph [LSA-R.S. 23:1221(3)(a)] to mean that the work-related injury has to be the cause of the injured employee's inability to earn as much as he could before. In other words, he is now damaged goods, and his ability to command top dollar in the work force has been diminished, solely because he has been previously hurt.
* * * * * *
The hearing officer contends that claimant is not entitled to SEBs under the facts *411 and circumstances presented in this matter. Here, not only was the claimant physically capable of performing his pre-accident supervisory position, but he, in fact, returned to the same position earning the same salary and performing the same supervisory functions. Hurst continued in this same capacity for seven months when he was discharged for cause and for reasons reflective of poor business judgment and activities—not related to his accident, injury, physical condition, medical treatment, etc. Claimant then secured employment again in a supervisory capacity but simply earning less. He was unable to land numerous jobs he identified, jobs which paid wages comparable to those claimant earned at BSC.
* * * * * *
Furthermore, claimant's current earnings are in no way reflective of claimant's current earning capacity. Rather, claimant's $45,000.00 a year salary only indicates what wages claimant is earning. Claimant testified about numerous positions which he became aware of that paid wages comparable to, equal to, or greater than his wages at BSC. For each of these jobs that claimant identified and sought, he testified that he not only was qualified for the positions but that he also was physically capable of performing the work required of each position.
* * * * * *
The claimant is not entitled to SEBs because he is physically capable of performing his former employment duties at the same wages. In addition, numerous positions identified by claimant, and for which he sought, paid wages comparable to his BSC wages.

The hearing officer found, and the judgment noted, that plaintiff's average weekly wage was $1,308.26; that plaintiff was not entitled to supplemental earnings benefits; and that BSC was not arbitrary and capricious in failing to pay plaintiff supplemental earnings benefits. Plaintiff appealed from the adverse judgment, assigning the following specifications of error:[2]

1. The hearing officer erred in finding that plaintiff's correct average weekly wage did not include bonuses from BSC.
2. The hearing officer erred in finding that plaintiff was not entitled to supplemental earnings benefits.
3. The hearing officer erred in finding that there was alternative employment available to plaintiff at a comparable rate of pay following his termination from BSC.
4. The hearing officer erred in finding that BSC was not arbitrary and capricious in its refusal to pay plaintiff supplemental earnings benefits after his termination from BSC.

SUPPLEMENTAL EARNINGS BENEFITS

The purpose of supplemental earnings benefits (SEB) is to compensate the injured employee for wage earning capacity he has lost as a result of his accident. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). Like all other provisions of the worker's compensation law, the provisions governing SEB must be liberally construed in favor of coverage. Daigle v. Sherwin-Williams Company, 545 So.2d 1005, 1006 (La.1989).

LSA-R.S. 23:1221(3) addresses SEB and provides, in pertinent part, as follows:

(a) For injury resulting in

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Bluebook (online)
671 So. 2d 408, 94 La.App. 1 Cir. 2463, 1995 La. App. LEXIS 2754, 1995 WL 588317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurst-v-baker-sand-control-lactapp-1995.