STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-0340
JAMES SHARP
VERSUS
LANDSCAPE MANAGEMENT SERVICES
************
APPEAL FROM THE OFFICE OF WORKERS= COMPENSATION, DISTRICT 03 PARISH OF CALCASIEU, NO. 09-10265 HONORABLE SAM LOWERY WORKERS= COMPENSATION JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.
Paul J. Cox Cox, Cox, Filo, Camel & Wilson 723 Broad Street Lake Charles, LA 70601 (337) 436-6611 COUNSEL FOR PLAINTIFF/APPELLEE: James Sharp
H. Douglas Hunter GUGLIELMO, LOPEZ, TUTTLE, HUNTER & JARRELL, L.L.P. P. O. Drawer 1329 Opelousas, LA 70571-1329 (337) 948-8201 COUNSEL FOR DEFENDANT/APPELLANT: Landscape Management Services and Bridgefield Casualty Insurance Company PETERS, J.
The defendants, Landscape Management Services and its insurer,
Bridgefield Casualty Insurance Company, appeal the judgment of the workers’
compensation judge (WCJ) in favor of the plaintiff, James Sharp, retroactively
reinstating his temporary total disability benefits and awarding him penalties and
attorney fees. For the following reasons, we affirm the award of penalties and
attorney fees, but reverse the award of temporary total disability benefits and
render judgment converting the temporary total disability benefits to supplemental
earnings benefits based on a zero earning capacity.
DISCUSSION OF THE RECORD
There is no dispute but that Mr. Sharp suffered a work-related injury to his
lower back on February 28, 2007, while employed as a landscape laborer for
Landscape Management Services (Landscape Management). He underwent a
microdiscectomy on July 31, 2007, which was performed by Dr. John Raggio, a
Lake Charles, Louisiana neurosurgeon. At some point after the surgical procedure,
Dr. Raggio retired from practice and Mr. Sharp commenced treatment with Dr.
Ricardo Leoni, a Lafayette, Louisiana neurosurgeon.
Dr. Leoni saw Mr. Sharp professionally on five occasions, commencing on
June 12, 2008, and ending on November 6, 2008. Based on his examinations of
the patient, Dr. Leoni concluded that Mr. Sharp was in need of additional surgical
intervention and recommended that he undergo an L4-5 laminectomy with medial
facetectomy and foraminotomies at L3-4, L4-5, and L5-S1 and a possible fusion.
When Mr. Sharp expressed a hesitancy to undergo additional surgical procedures,
Dr. Leoni recommended that he undergo conservative treatment by a Lake Charles
rehabilitation doctor. In January of 2008, while Mr. Sharp was still under Dr. Leoni’s care,
Matthew Richard, the adjustor handling the case on behalf of the employer and
insurer, retained McNabb Rehabilitation Services of Lafayette, Louisiana, to
provide vocational rehabilitation services to Mr. Sharp. Blake Stevens, a
vocational rehabilitation counselor with McNabb Rehabilitation Services, obtained
Mr. Sharp’s file on January 28, 2008, and reviewed the medical history available to
him at that time. Included within that medical history was a December 2007
functional capacity evaluation (FCE) which had been ordered by Dr. Raggio. The
finding of that evaluation was that Mr. Sharp should be restricted to light duty
requiring a maximum lifting of twenty pounds.
Mr. Stevens met with Mr. Sharp on March 25, 2009, in Lake Charles,
Louisiana, and interviewed him concerning his work and education history.
During the interview, Mr. Stevens learned that Mr. Sharp graduated from Fenton
High School in 1979, and twelve years later, completed approximately one and
one-half months of electronic training at Sowela Technical Institute in Lake
Charles. Mr. Sharp had worked on and off for Landscape Management for
approximately fifteen years before the accident, working primarily as a
laborer/delivery person. Specifically, his entire work career amounted to his
employment with Landscape Management and another landscape company, as a
farm hand, and as an industrial laborer in construction work. Mr. Stevens was also
able to ascertain that Mr. Sharp had basic mathematic skills; that he owned a home
computer and was able to navigate the Internet and Windows; and that his work
history was limited to that of a heavy duty work level laborer.
With regard to Mr. Sharp’s employment with Landscape Management, Mr.
Stevens learned in the interview that Mr. Sharp’s duties included picking up and
delivering sand, gravel, soil, and plants; and operating a flatbed truck while 2 traveling to and from wholesalers in Forest Hill, Louisiana, and delivering to
customers. His duties required him to life items weighing between ten and one
hundred pounds.
Approximately one month after Mr. Stevens met with Mr. Sharp, Dr. Leoni
ordered a second FCE addressing Mr. Sharp’s abilities. This April 2009 FCE
restricted Mr. Sharp to sedentary to light duty level tasks and limited his lifting
ability to a maximum of ten pounds.
Based on the information he had available to him, Mr. Stevens concluded
that no additional vocational testing was required of Mr. Sharp, and he determined
that, although he lacked secretarial skills, Mr. Sharp demonstrated semi-skilled
intelligence, general education development levels, and transferable skills.
Subsequent to the April 2009 FCE, Mr. Stevens performed a labor market survey
and contacted approximately thirty potential employees in an effort to fit a job
opportunity to Mr. Sharp’s skills and limitations. In July of 2009, he was finally
able to identify two such employment positions that seemed to be acceptable. Both
positions, one with Centennial Wireless and the other with Payday Loans, were
customer service representative positions and were of a sedentary nature. Both
were full-time positions and paid up to $10.00 per hour depending on the
applicant’s experience. Believing that Mr. Sharp met the requirements of these
entry-level positions, Mr. Stevens sought confirmation from Dr. Leoni that Mr.
Sharp could perform these jobs. Dr. Leoni approved the positions on August 18,
2009, and Mr. Stevens confirmed with the potential employers that the positions
were still open. He then notified Mr. Sharp of the opportunities. Mr. Sharp
received the notification letter on August 20, 2009, that the positions were
available and that Dr. Leoni had approved them for him.
3 In response to Mr. Stevens’ efforts, Mr. Sharp applied for both positions.
Payday Loans rejected him because of his lack of experience, and Centennial
Wireless informed him that it had no position available for him. He did not notify
Mr. Stevens of the rejections. Instead, he began to inquire about the availability of
similar employment on his own. Specifically, he applied for employment at
Goodwill, Salvation Army, Kmart, Ryan’s Steakhouse, Kroger Grocery Store,
Albertsons, and two different Wal-Mart locations. He did not meet the physical
requirements for the forklift position at Goodwill, found that there were no
openings at Salvation Army, and received no response from the other potential
employers. Thereafter, he continued to update his applications to Kmart, Wal-
Mart, Albertsons, and Kroger Grocery Store.
Despite the fact that Dr. Leoni did not approve the two positions located by
Mr. Stevens until August 18, 2009, Mr. Richards caused Mr. Sharp’s TTD benefits
to be terminated on August 13, 2009.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-0340
JAMES SHARP
VERSUS
LANDSCAPE MANAGEMENT SERVICES
************
APPEAL FROM THE OFFICE OF WORKERS= COMPENSATION, DISTRICT 03 PARISH OF CALCASIEU, NO. 09-10265 HONORABLE SAM LOWERY WORKERS= COMPENSATION JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.
Paul J. Cox Cox, Cox, Filo, Camel & Wilson 723 Broad Street Lake Charles, LA 70601 (337) 436-6611 COUNSEL FOR PLAINTIFF/APPELLEE: James Sharp
H. Douglas Hunter GUGLIELMO, LOPEZ, TUTTLE, HUNTER & JARRELL, L.L.P. P. O. Drawer 1329 Opelousas, LA 70571-1329 (337) 948-8201 COUNSEL FOR DEFENDANT/APPELLANT: Landscape Management Services and Bridgefield Casualty Insurance Company PETERS, J.
The defendants, Landscape Management Services and its insurer,
Bridgefield Casualty Insurance Company, appeal the judgment of the workers’
compensation judge (WCJ) in favor of the plaintiff, James Sharp, retroactively
reinstating his temporary total disability benefits and awarding him penalties and
attorney fees. For the following reasons, we affirm the award of penalties and
attorney fees, but reverse the award of temporary total disability benefits and
render judgment converting the temporary total disability benefits to supplemental
earnings benefits based on a zero earning capacity.
DISCUSSION OF THE RECORD
There is no dispute but that Mr. Sharp suffered a work-related injury to his
lower back on February 28, 2007, while employed as a landscape laborer for
Landscape Management Services (Landscape Management). He underwent a
microdiscectomy on July 31, 2007, which was performed by Dr. John Raggio, a
Lake Charles, Louisiana neurosurgeon. At some point after the surgical procedure,
Dr. Raggio retired from practice and Mr. Sharp commenced treatment with Dr.
Ricardo Leoni, a Lafayette, Louisiana neurosurgeon.
Dr. Leoni saw Mr. Sharp professionally on five occasions, commencing on
June 12, 2008, and ending on November 6, 2008. Based on his examinations of
the patient, Dr. Leoni concluded that Mr. Sharp was in need of additional surgical
intervention and recommended that he undergo an L4-5 laminectomy with medial
facetectomy and foraminotomies at L3-4, L4-5, and L5-S1 and a possible fusion.
When Mr. Sharp expressed a hesitancy to undergo additional surgical procedures,
Dr. Leoni recommended that he undergo conservative treatment by a Lake Charles
rehabilitation doctor. In January of 2008, while Mr. Sharp was still under Dr. Leoni’s care,
Matthew Richard, the adjustor handling the case on behalf of the employer and
insurer, retained McNabb Rehabilitation Services of Lafayette, Louisiana, to
provide vocational rehabilitation services to Mr. Sharp. Blake Stevens, a
vocational rehabilitation counselor with McNabb Rehabilitation Services, obtained
Mr. Sharp’s file on January 28, 2008, and reviewed the medical history available to
him at that time. Included within that medical history was a December 2007
functional capacity evaluation (FCE) which had been ordered by Dr. Raggio. The
finding of that evaluation was that Mr. Sharp should be restricted to light duty
requiring a maximum lifting of twenty pounds.
Mr. Stevens met with Mr. Sharp on March 25, 2009, in Lake Charles,
Louisiana, and interviewed him concerning his work and education history.
During the interview, Mr. Stevens learned that Mr. Sharp graduated from Fenton
High School in 1979, and twelve years later, completed approximately one and
one-half months of electronic training at Sowela Technical Institute in Lake
Charles. Mr. Sharp had worked on and off for Landscape Management for
approximately fifteen years before the accident, working primarily as a
laborer/delivery person. Specifically, his entire work career amounted to his
employment with Landscape Management and another landscape company, as a
farm hand, and as an industrial laborer in construction work. Mr. Stevens was also
able to ascertain that Mr. Sharp had basic mathematic skills; that he owned a home
computer and was able to navigate the Internet and Windows; and that his work
history was limited to that of a heavy duty work level laborer.
With regard to Mr. Sharp’s employment with Landscape Management, Mr.
Stevens learned in the interview that Mr. Sharp’s duties included picking up and
delivering sand, gravel, soil, and plants; and operating a flatbed truck while 2 traveling to and from wholesalers in Forest Hill, Louisiana, and delivering to
customers. His duties required him to life items weighing between ten and one
hundred pounds.
Approximately one month after Mr. Stevens met with Mr. Sharp, Dr. Leoni
ordered a second FCE addressing Mr. Sharp’s abilities. This April 2009 FCE
restricted Mr. Sharp to sedentary to light duty level tasks and limited his lifting
ability to a maximum of ten pounds.
Based on the information he had available to him, Mr. Stevens concluded
that no additional vocational testing was required of Mr. Sharp, and he determined
that, although he lacked secretarial skills, Mr. Sharp demonstrated semi-skilled
intelligence, general education development levels, and transferable skills.
Subsequent to the April 2009 FCE, Mr. Stevens performed a labor market survey
and contacted approximately thirty potential employees in an effort to fit a job
opportunity to Mr. Sharp’s skills and limitations. In July of 2009, he was finally
able to identify two such employment positions that seemed to be acceptable. Both
positions, one with Centennial Wireless and the other with Payday Loans, were
customer service representative positions and were of a sedentary nature. Both
were full-time positions and paid up to $10.00 per hour depending on the
applicant’s experience. Believing that Mr. Sharp met the requirements of these
entry-level positions, Mr. Stevens sought confirmation from Dr. Leoni that Mr.
Sharp could perform these jobs. Dr. Leoni approved the positions on August 18,
2009, and Mr. Stevens confirmed with the potential employers that the positions
were still open. He then notified Mr. Sharp of the opportunities. Mr. Sharp
received the notification letter on August 20, 2009, that the positions were
available and that Dr. Leoni had approved them for him.
3 In response to Mr. Stevens’ efforts, Mr. Sharp applied for both positions.
Payday Loans rejected him because of his lack of experience, and Centennial
Wireless informed him that it had no position available for him. He did not notify
Mr. Stevens of the rejections. Instead, he began to inquire about the availability of
similar employment on his own. Specifically, he applied for employment at
Goodwill, Salvation Army, Kmart, Ryan’s Steakhouse, Kroger Grocery Store,
Albertsons, and two different Wal-Mart locations. He did not meet the physical
requirements for the forklift position at Goodwill, found that there were no
openings at Salvation Army, and received no response from the other potential
employers. Thereafter, he continued to update his applications to Kmart, Wal-
Mart, Albertsons, and Kroger Grocery Store.
Despite the fact that Dr. Leoni did not approve the two positions located by
Mr. Stevens until August 18, 2009, Mr. Richards caused Mr. Sharp’s TTD benefits
to be terminated on August 13, 2009. Landscape Management and its insurer then
began paying Mr. Sharp SEBs based on an earning capacity of $10.00 per hour.
Neither Mr. Stevens nor Mr. Richards ever followed up to see if Mr. Sharp
obtained employment with Payday Loans, Centennial Wireless, or any other
potential employer.
On November 30, 2009, Mr. Sharp filed a disputed claim for compensation
against Landscape Management and Bridgefield Casualty Insurance Company,
seeking reinstatement of his TTD benefits, penalties and attorney fees based on
Landscape Management’s termination on his TTD benefits, relief in a dispute over
the recommended surgery and their failure to reimburse him for his medical travel
mileage. Landscape Management and its insurer responded to the claim by
asserting that the termination of TTD benefits was based on the fact that the
4 vocational rehabilitation services provided to Mr. Sharp led to an offer of work and
the resultant reduction in benefits based on the availability of wages.
After a trial on the merits, and after taking the matter under advisement, the
WCJ rendered oral reasons, finding that Landscape Management had improperly
converted Mr. Sharp’s TTD benefits to SEBs as it failed to prove that the two
positions at issue were actually available at the time Mr. Sharp applied for them.
Based on this finding, the WCJ ordered Mr. Sharp’s TTD benefits retroactively
reinstated as of August 13, 2009, and awarded him $2,000.00 in penalties and
$7,500.00 in attorney fees. The WCJ executed a judgment to this effect on
December 16, 2010.
Landscape Management appeals from this judgment, raising four
assignments of error:
I. The trial court committed manifest error when it awarded James Sharp temporary total disability indemnity benefits.
II. The trial court committed manifest error in finding that James Sharp met his burden of proving that he could not earn 90% of his pre-injury wages.
III. The trial court committed manifest error in finding that the defendants did not tender “available” jobs to James Sharp.
IV. The trial court committed manifest error in awarding penalties and attorney’s fees.
OPINION
The only issue addressed in the trial on the merits was whether Landscape
Management improperly converted Mr. Sharp’s TTD benefits to SEBs. The law
pertaining to SEBs was recently set forth by the supreme court in Poissenot v. St.
Bernard Parish Sheriff’s Office, 09-2793, pp. 4-6 (La. 1/9/11), 56 So.3d 170, 174-
75:
“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” 5 Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. 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. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to 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 employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.
The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Daigle, supra at 1007. Further, factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong 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. Freeman, supra at 737-38; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). “In determining whether a [WCJ’s] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97- 0688 (La.12/2/97), 704 So.2d 1161, 1166.
In awarding Mr. Sharp TTD benefits, the WCJ rendered the following oral
reasons for judgment:
The controversy centers on Mr. Sharp’s contention that his employer’s workers’ compensation insurance carrier inappropriately and illegally terminated his temporary total disability payments on August 13, 2009. For its part, the defendant insisted that termination action was justified because he simply refused to accept suitable employment which was offered to him. 6 In essence, Mr. Sharp argued that he met his burden of proving that he could not earn 90 percent of his pre-injury wages because he could no longer work as a laborer and none of the jobs to which he was referred by the insurer were actually available within the meaning of the R.S. 23:1221[(3)(c)(i)].
Mr. Sharp’s live testimony leaves little doubt that under the very best of circumstances, both his viability and his desirability in the job market are markedly limited. He is a landscaper, and a disabled one at that. He has two herniated discs in his back.
It would take a very expansive view of the situation here to envision Mr. Sharp doing anything clerical or financial, but that’s not the point. The testimony shows clearly that the jobs which the insurer recommended to him were simply not available
It appears from the evidence that Mr. Sharp made an honest effort to secure employment at both businesses but was rejected at both places. The term “energetically” decidedly does not apply to the insurer’s efforts to find suitable employment for this rather limited individual.
For reasons patently obvious as a result to any reader of the trial transcript, the Court orders that Mr. Sharp’s temporary total disability indemnity benefits be restored retroactive to August 13, 2009. Penalties are assessed at $2,000 and attorney’s fees are $7,500.
There is no question that Mr. Sharp sustained a work-related injury to his
lower back while employed as a landscape laborer for Landscape Management,
and that initially he was entitled to TTD benefits. In fact, the parties stipulated that
he received TTD benefits at the rate of $269.08 from the date of his injury through
August 12, 2009. With regard to the continuation of benefits, Mr. Sharp bears the
burden of establishing by clear and convincing evidence, unaided by any
presumption of disability, that he is physically unable to engage in any
employment as a result of a work-related injury in order to be awarded TTD
benefits. La.R.S. 23:1221(1). Disability can be proven by both medical and lay
testimony, and the WCJ must weigh all of the evidence in order to determine
whether the employee has satisfied his burden of proof. Jack v. Prairie Cajun
Seafood Wholesale, 07-102 (La.App. 3 Cir. 10/3/07), 967 So.2d 552, writ denied, 7 07-2388 (La. 2/15/08), 976 So.2d 178. The WCJ=s finding of disability is a factual
determination that is subject to the manifest error analysis. Id.
In this case, the record establishes that based on the April 18, 2009
functional capacity evaluation, Dr. Leoni concluded that Mr. Sharp could perform
sedentary to light duty work. Thus, it was not error for Mr. Richard to convert Mr.
Sharp’s benefits to SEBs, and the WCJ erred in reinstating Mr. Sharp’s TTD
benefits. However, once it was determined that SEBs were the appropriate
benefits payable, the burden shifted to Landscape Management to establish by a
preponderance of the evidence that not only was Mr. Sharp able to perform a
certain job, but that the job was offered to him and was available to him within his
community or reasonable geographic location. Poissenot, 56 So.2d 170.
Landscape Management failed in this respect. The two positions identified by Mr.
Stevens were within Mr. Sharp’s physical limitations, but neither position was ever
offered to him. Thus, while the weekly payments may be classified as SEB
payments, they are to be paid based on a zero earning capacity. Accordingly, the
judgment of the WCJ reinstating Mr. Sharp’s TTD benefits is reversed, and we
now render judgment in favor of Mr. Sharp awarding him SEBs as of April 18,
2009, paid based on a zero earning capacity.
Finally, Landscape Management appeals the WCJ’s award of penalties and
attorney fees to Mr. Sharp. The decision to cast an employer with penalties and
attorney fees is a question of fact which will not be reversed on appeal absent
manifest error. Ashworth v. Administaff, Inc., 10-318 (La.App. 3 Cir. 10/6/10), 48
So.3d 1178. The failure to provide the payment of workers’ compensation
indemnity benefits will result in an assessment of penalties and attorney fees
pursuant to La.R.S. 23:1201(F), unless the employee’s claim is reasonably
8 controverted or the nonpayment resulted from conditions beyond the employer’s
control.
In this instance, we find no error in the WCJ’s assessment of penalties and
attorney fees based on Landscape Managements payment of Mr. Sharp’s indemnity
benefits at an incorrect rate. Landscape Management reduced Mr. Sharp’s
indemnity benefits to SEBs based on its determination that either of the two
customer service representative positions were available to him. When this turned
out not to be the case, it did nothing further in assisting Mr. Sharp to find work.
Mr. Stevens, other than meeting with Mr. Sharp once and then identifying the two
positions, made no effort to contact Mr. Sharp in a continual effort to assist him.
When questioned by the WCJ, Mr. Stevens opined that communication is a two-
way street and that he felt that his clients should call him to update their progress
in obtaining employment. Accordingly, we affirm the WCJ’s award of penalties
and attorney fees to Mr. Sharp.
DISPOSITION
Based on the foregoing, the judgment of the trial court awarding penalties
and attorney fees to Mr. Sharp is affirmed; the judgment reinstating Mr. Sharp’s
TTD benefits is reversed; and judgment is now rendered awarding Mr. Sharp SEBs
at a zero earning capacity rate as of April 18, 2009. The costs of this appeal are
assessed to the defendants, Landscape Management Services and Bridgefield
Casualty Insurance Company.
AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.