John Briscoe v. McNeese State University

• Court: Louisiana Court of Appeal
• Decided: December 7, 2011
• Docket: WCA-0011-0872
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-872

JOHN BRISCOE

VERSUS

McNEESE STATE UNIVERSITY, ET AL.

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APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - DISTRICT 3 PARISH OF CALCASIEU, NO. 10-02822 SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Oswald A. Decuir, James T. Genovese, and Phyllis M. Keaty, Judges.

REVERSED IN PART; AND AFFIRMED AS AMENDED IN PART.

Mark Zimmerman Attorney at Law 4216 Lake Street Lake Charles, LA 70605 (337) 474-1644 Counsel for Plaintiff/Appellee: John Briscoe Elizabeth B. Hollins Assistant Attorney General Louisiana Department of Justice Litigation Division One Lakeshore Drive, Suite 1200 Lake Charles, LA 70629 (337) 491-2880 Counsel for Defendants/Appellants: McNeese State University Office of Risk Management DECUIR, Judge.

FACTS

John Briscoe (Briscoe) was employed by McNeese State University

(McNeese) as a trades apprentice at Burton Coliseum. It is undisputed that Briscoe

was injured on July 27, 2009, while installing flooring at Burton Coliseum.

Furthermore, it is undisputed that he aggravated the injury on January 10, 2010,

while putting together a steel livestock fence for a rodeo event. Briscoe’s

relationship with his supervisor deteriorated progressively, and he was terminated

on March 12, 2010. Briscoe filed a claim for workers’ compensation.

The workers’ compensation judge found that there is no doubt that Briscoe

was injured and that the medical evidence supports that conclusion. The workers’

compensation judge further found that Briscoe was probably never McNeese’s star

employee and that the situation was exacerbated by McNeese’s apparent inability

to find or create suitable light-duty work for Briscoe. More specifically, the

workers’ compensation judge found that McNeese took a rather cavalier attitude

toward the opinion of Briscoe’s treating physician and failed to authorize

physician-ordered lumbar injections. The workers’ compensation judge also found

that McNeese made little effort to modify Briscoe’s job duties. The workers’

compensation judge found this attitude led to Briscoe working in pain doing jobs

outside his restrictions and achieving unsatisfactory results for McNeese. The

workers’ compensation judge found that McNeese used these unsatisfactory results

and Briscoe’s pain-induced poor attitude as grounds for termination.

Accordingly, the workers’ compensation judge awarded Briscoe

supplemental earnings benefits (SEB) based on zero earnings from March 12, 2010.

In addition, the workers’ compensation judge ordered medical care, vocational

rehabilitation, $6,000.00 in penalties, and $9,000.00 as attorney fees. McNeese lodged this appeal. Briscoe answered seeking an award of attorney fees for work

on the appeal.

DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest

error or clearly wrong standard of appellate review. Banks v. Indus. Roofing &

Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. In applying the

manifest error standard, the appellate court determines whether the factfinder’s

conclusion was reasonable, not whether the trier of fact was right or wrong. Id.

“[E]ven where the appellate court is convinced it would have weighed the evidence

differently if it had been sitting as trier, the court of appeal may not reverse if the

factfinder’s findings are reasonable in light of the record reviewed in its entirety.”

Winford v. Conerly Corp., 04-1278, pp. 15-16 (La. 3/11/05), 897 So.2d 560, 569-

70.

McNeese’s first two assignments of error allege that the workers’

compensation judge erred in awarding SEB to Briscoe because they did not know

of his inability to do his prior job and because he was fired for reasons unrelated to

his injury. We disagree.

Entitlement to SEB is provided by La.R.S. 23:1221(3), under which the

threshold prerequisite to recovery is that the employee’s injury results in his

inability to earn wages equal to ninety percent of the wages he was earning at the

time of the injury. In this case, the workers’ compensation judge found that

McNeese fired Briscoe because he could not satisfactorily complete his assigned

job tasks. The workers’ compensation judge found Briscoe’s firing, medical

records, and his un-rebutted testimony that he could not find anyone else to hire

him was sufficient to establish his entitlement to SEBs. In view of McNeese’s

failure to offer evidence of available jobs for Briscoe, we cannot say the workers’

2 compensation judge’s findings are manifestly erroneous. These assignments have

no merit.

McNeese next contends that the workers’ compensation judge erred in

ordering vocational rehabilitation services where they were not pled, and there is

no evidence that Briscoe cannot accomplish his present job. We find the pleadings

requesting all benefits to which Briscoe is entitled to be sufficient. Likewise, our

resolution of the previous issue together with the testimony of General Manager

Jared LeBlue informing McNeese Human Resources Director Charlene Abbott that

there was not much on the job that could even be considered light duty amply

establish that there was no manifest error in the workers’ compensation judge’s

award of vocational rehabilitation services.

McNeese next contends that the workers’ compensation judge erred in

awarding penalties and attorney fees. A workers’ compensation judge has great

discretion in deciding whether to allow or disallow penalties and attorney fees, and

the decision will not be disturbed absent abuse of that discretion. Frank v. City of

Lake Charles, 04-820 (La.App. 3 Cir. 11/10/04), 887 So.2d 679. After reviewing

the record, we find no abuse of discretion in the award of penalties and attorney

fees with regard to Briscoe’s medical and indemnity benefits. However, workers’

compensation statutes providing for penalties and attorney fees are penal in nature

and to be strictly construed. Langley v. Petro Star Corp. of La., 01-0198, pp. 3-4

(La. 6/29/01), 792 So.2d 721, 723. While we have found that Briscoe’s pleadings

were sufficient to encompass a demand for vocational rehabilitation service, they

lack the specificity required to support a claim for penalties. It is evident that

$2,000.00 of the penalties awarded by the workers’ compensation judge were for

McNeese’s failure to provide vocational rehabilitation services. Accordingly, we

3 reverse the award of $2,000.00 in penalties for failure to provide vocational

rehabilitation services.

Briscoe answered the appeal seeking attorney fees for work on this appeal.

Accordingly, we hereby amend the judgment to award $3,500.00 in attorney fees

for this appeal.

DECREE

For the reasons assigned, the judgment of the workers’ compensation judge

is reversed insofar as it awards $2,000.00 in penalties for failure to provide

vocational rehabilitation services. It is amended to award an additional $3,500.00

in attorney fees for work on this appeal and affirmed in all other respects. All costs

are taxed to McNeese. Pursuant to the requirement of La.R.S. 13:5112(A), we set

those costs in the monetary amount of $778.00.