Lanthier v. Family Dollar Store

813 So. 2d 1212, 1 La.App. 3 Cir. 0437, 2002 La. App. LEXIS 926, 2002 WL 497406
CourtLouisiana Court of Appeal
DecidedApril 3, 2002
Docket01-0437
StatusPublished
Cited by5 cases

This text of 813 So. 2d 1212 (Lanthier v. Family Dollar Store) 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
Lanthier v. Family Dollar Store, 813 So. 2d 1212, 1 La.App. 3 Cir. 0437, 2002 La. App. LEXIS 926, 2002 WL 497406 (La. Ct. App. 2002).

Opinion

813 So.2d 1212 (2002)

Nadine LANTHIER
v.
FAMILY DOLLAR STORE.

No. 01-0437.

Court of Appeal of Louisiana, Third Circuit.

April 3, 2002.

*1214 Michael B. Miller, Crowley, LA, for Plaintiff/Appellant Nadine Lanthier.

Azelie Ziegler Shelby, Brian K. Abels, Ungarino & Eckert, L.L.C., Baton Rouge, LA, for Defendant/Appellee Family Dollar Store.

Court composed of ULYSSES GENE THIBODEAUX, BILLIE COLOMBARO WOODARD, MARC T. AMY, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.

GREMILLION, Judge.

The plaintiff, Nadine Lanthier, appeals the judgment of the workers' compensation judge categorizing her as a part-time employee of the defendant, Family Dollar Store, and denying her further disability benefits, penalties, and attorney's fees. For the following reasons, we affirm in part, amend in part, and render.

FACTS

Lanthier, a cashier for Family Dollar, fell injuring her right hip, hand, and wrist, and lower back on January 14, 1999. She was initially treated by her family doctor, Dr. Brian Heinen, who restricted her from working on March 19, 1999. Lanthier was seen by Dr. Gregory Gidman, an orthopedic surgeon, at the request of Family Dollar. Dr. Heinen referred Lanthier to Dr. Stephen Nason, an orthopedic surgeon, for treatment of her back, hip, and hand injuries. Dr. Nason diagnosed her as suffering from carpal tunnel syndrome and performed a carpal tunnel release on her right wrist. On July 29, 1999, Lanthier was released to light duty work status. After her return to work, her right thumb began locking up, which was diagnosed as trigger thumb by Dr. Nason. She underwent surgery to correct this disorder on March 14, 2000, at which time she was restricted from working.

Lanthier's right hand was also evaluated by Dr. Darrell Henderson, a plastic and reconstructive surgeon. On July 19, 2000, Dr. Henderson stated that she was at maximum medical improvement and could return to work without any restrictions. However, on July 26, 2000, Dr. Nason, while noting Dr. Henderson's recommendations, released Lanthier to light duty work only, with a lifting restriction of five pounds based on her difficulty in using and pain in her right thumb. He further noted she had problems lifting things. Lanthier requested light duty work from Family Dollar after her release to return to work by Dr. Nason, but was never placed on the work schedule.

Family Dollar initiated weekly compensation benefits to Lanthier in the amount of $98 on March 26, 1999. On May 28, 1999, it increased her benefits to $114.35, upon the receipt of Lanthier's wage information from Family Dollar. Lanthier received these benefits until July 29, 1999, at which time she was released to work following her carpal tunnel release surgery. Travelers recommenced weekly compensation benefits on March 14, 2000, and continued paying them until Dr. Henderson released her to return to unrestricted work on July 19, 2000.

On August 27, 1999, Lanthier filed a disputed claim for compensation against Family Dollar alleging its failure to pay workers' compensation benefits and provide proper medical treatment. She included a claim for penalties and attorney's fees. Following a hearing on the merits, the workers' compensation judge held that Lanthier was a part-time employee of Family Dollar and that she was capable of returning to work on July 26, 2000. He further awarded her $2,000 in penalties and $2,000 in attorney's fees for Family *1215 Dollar's failure to reimburse her for mileage, but denied her request for penalties and attorney's fees on the basis that Family Dollar improperly calculated her wages and was untimely in initiating the payment of compensation benefits. Lanthier's appeal followed.

ISSUES

Lanthier raises four assignments of error on appeal. She disputes the workers' compensation judge's classification of her as a part-time employee and, in doing so, its reliance upon the hearsay testimony of Denise Guidry. She further argues that the workers' compensation judge erred in finding that she was capable of returning to work and in denying her claim for additional penalties and attorney's fees.

STANDARD OF REVIEW

The standard of review in a workers' compensation hearing was set out in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556:

Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep't of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (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, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, "if the [factfinder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990).

PART-TIME EMPLOYMENT

In her first assignment of error, Lanthier argues that the workers' compensation judge erred by classifying her as a part-time employee of Family Dollar. She claims that this was in error since she testified that she was a full-time employee and that she generally worked thirty to thirty-two hours per week.

Lanthier's classification as either a full or part-time employee is important, since an employee is entitled to weekly compensation benefits equaling sixty-six and two thirds of her average weekly wage during a period of temporary total disability. La. R.S. 23:1221(1); La.R.S. 23:1021(10). An employee's average weekly wage is determined from the amount of hours the employee works and her classification as either a full or part-time employee. La.R.S. 23:1021(10) provides:

(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of *1216 his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.

A part-time employee is defined as "an employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position." La.R.S. 23:1021(9).

The Family Dollar Associate Handbook classified regular associates as follows:

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Related

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Cite This Page — Counsel Stack

Bluebook (online)
813 So. 2d 1212, 1 La.App. 3 Cir. 0437, 2002 La. App. LEXIS 926, 2002 WL 497406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lanthier-v-family-dollar-store-lactapp-2002.