Kahlden v. Horseshoe Entertainment

709 So. 2d 873, 1998 La. App. LEXIS 264, 1998 WL 78790
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1998
Docket30277-WCA
StatusPublished
Cited by4 cases

This text of 709 So. 2d 873 (Kahlden v. Horseshoe Entertainment) 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
Kahlden v. Horseshoe Entertainment, 709 So. 2d 873, 1998 La. App. LEXIS 264, 1998 WL 78790 (La. Ct. App. 1998).

Opinion

709 So.2d 873 (1998)

Vita Jean KAHLDEN, Plaintiff-Appellee,
v.
HORSESHOE ENTERTAINMENT, Defendant-Appellant.

No. 30277-WCA.

Court of Appeal of Louisiana, Second Circuit.

February 25, 1998.

*874 Degan, Blanchard & Nash by John E. Faherty, Jr., New Orleans, for Appellant.

Klotz & Simmons by David Klotz, Shreveport, for Appellee.

Before NORRIS, STEWART and CARAWAY, JJ.

CARAWAY, Judge.

This is a worker's compensation matter arising out of an injury sustained by the claimant, Vita Kahlden, while on her job as a blackjack dealer at the Horseshoe Casino. Horseshoe terminated payments of worker's compensation benefits when, it alleges, Kahlden turned down offers to return to work in a modified position that would accommodate her in her diminished capacity. After trial, the worker's compensation judge (WCJ) awarded the claimant supplemental earnings benefits (SEBs) and cast Horseshoe in judgment for penalties and attorney fees. Horseshoe appeals contesting plaintiff's continuing disability and the amount of SEB's awarded. Claimant answers the appeal and requests additional attorney fees. Finding no manifest error, we affirm for the most part the WCJ's rulings, amending only with regard to the calculation for the award for SEBs.

Facts

Vita Kahlden was employed as a blackjack dealer at the Horseshoe Casino in Bossier City. Blackjack dealers at Horseshoe work for one-hour periods standing at the blackjack table conducting the games, followed by twenty-minute breaks before returning to the table for the next hour. On August 4, 1995, plaintiff was on a twenty-minute break from dealing and was in the restroom when the accident occurred. As Kahlden unlatched the stall door to exit, the heavy door fell from its hinges and crushed her left big toe. Kahlden was 58 years old at the time.

Horseshoe sent Kahlden to Dr. Haynie, an orthopaedic surgeon. When she did not improve after several weeks, Dr. Haynie sent her to his partner, Dr. Lillach, who specializes in ankle and foot problems. Dr. Lillach eventually released the claimant to return to work. On September 27, 1995, Kahlden returned to work one 4 hour day as a blackjack dealer allegedly under the threat of losing her job, but had to be relieved because her foot hurt and she could not return.

On October 25, 1995, Horseshoe gave Kahlden a temporary, semi-sedentary, clerical job for which she was paid $4.43 per hour, the same base pay as a blackjack dealer. As will be seen below, however, a blackjack dealer earns considerably more money in "tokes" than in the base hourly wage. Nevertheless, from October 25 until the end of December, while Kahlden worked at this job, no SEBs were paid by Horseshoe.

During this time, Kahlden also began to see her own doctor, Dr. Wade Fox, for the continuing problem with her foot. Dr. Fox, had treated plaintiff in 1991 for injuries sustained in an automobile accident. Dr. Fox testified that when he first treated Kahlden for her foot injury, she could do only sedentary work. Horseshoe produced evidence that it offered her a sedentary job at $7.00 *875 per hour in late December, 1995, but the claimant turned it down because it required weekend work. Claimant admits that the job was discussed with her, but she claims she was never called to work.

Later, in 1996, Horseshoe decided to get another medical opinion and sent the claimant to Dr. Mead, who was hired from time to time by Horseshoe to give primary or secondary opinions in worker's compensation matters. Dr. Mead concluded after his December 4, 1996 examination that the claimant was faking her injury based upon his observation of her walking into the examination room.

Despite Dr. Mead's evaluation of Kahlden, Dr. Fox held to the view that the claimant could return to her job as a blackjack dealer only if she were allowed to sit on a stool or not stand more than 30 minutes without a break. Horseshoe claims that on February 20, 1997, it offered Kahlden a position with such accommodations. However, there was no evidence in the record demonstrating that Horseshoe actually offered the claimant the job with the accommodations required by Dr. Fox. Horseshoe's letter to Kahlden's attorney made no reference to such accommodations.

Horseshoe does not contest the accident or the medicals, which it has paid. Because it was 35 days late in making the first compensation payment, it stipulated to $1750 in statutory penalties in that regard. Horseshoe disputed plaintiff's entitlement to SEBs claiming that it offered her jobs that would accommodate her inability to stand continuously for one hour at a time at the blackjack table.

The WCJ found in favor of the claimant holding that her injury prevented her from performing her previous job as a blackjack dealer as a result of the job injury. The claimant was awarded SEBs commencing on October 25, 1995, for 10 weeks at a rate of $189.61 per week and thereafter at a rate of $307.33 per week, based on two-thirds of an average weekly wage determined to be $461.60. The judgment also awarded the claimant $3750 in penalties, $1750 of which was the stipulated amount for late compensation payment and $2000 for failure to pay SEBs after October 25, 1995. The judgment awarded the claimant $7500 in attorney fees.

Horseshoe appeals complaining that the trial court manifestly erred in awarding SEBs at a rate of $307.33 per week after December 31, 1995, claiming that a $7.00 per hour job offer was presented to the claimant around December 31, 1995. It further argues that the SEBs should terminate on February 20, 1997 because it claims it proved that it offered the claimant her job as a blackjack dealer at her previous pay on that date. Finally, Horseshoe complains about the court's calculation of SEBs.

Discussion

Supplemental Earnings Benefits

An employee is entitled to receive SEBs if he sustains a work-related injury that results in an 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. Freeman v. Poulan/Weed Eater, 93-1530, (La.1/14/94), 630 So.2d 733 at 739. "Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker's compensation is to be liberally construed in favor of coverage." Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). Seal v. Gaylord Container Corporation, 97-C-0688 (La.12/2/97), 704 So.2d 1161. The purpose of SEBs is to compensate the injured employee for the 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).

Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEBs or establish the employee's earning capacity, must 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 employer's community or reasonable geographic *876 region. La. R.S. 23:1221(3)(c)(i); Daigle, 545 So.2d at 1009. Actual job placement is not required. Romero v. Grey Wolf Drilling Co., 594 So.2d 1008 (La.App. 3d Cir.1992).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brien v. Leon Angel Constructors, Inc.
978 So. 2d 576 (Louisiana Court of Appeal, 2008)
Lee v. Heritage Manor of Bossier City
954 So. 2d 276 (Louisiana Court of Appeal, 2007)
Figueroa v. Hardtner Medical Center
805 So. 2d 1267 (Louisiana Court of Appeal, 2002)
Harrison v. Frank & Janie Seafood Rest.
718 So. 2d 1003 (Louisiana Court of Appeal, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
709 So. 2d 873, 1998 La. App. LEXIS 264, 1998 WL 78790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kahlden-v-horseshoe-entertainment-lactapp-1998.