Lolan v. Louisiana Industries

664 So. 2d 616, 1995 WL 640684
CourtLouisiana Court of Appeal
DecidedNovember 2, 1995
Docket95-602
StatusPublished
Cited by8 cases

This text of 664 So. 2d 616 (Lolan v. Louisiana Industries) 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
Lolan v. Louisiana Industries, 664 So. 2d 616, 1995 WL 640684 (La. Ct. App. 1995).

Opinion

664 So.2d 616 (1995)

Robert LOLAN, Plaintiff-Appellee,
v.
LOUISIANA INDUSTRIES, Defendant-Appellant.

No. 95-602.

Court of Appeal of Louisiana, Third Circuit.

November 2, 1995.

*617 Dorwan Gene Vizzier, Alexandria, for Robert Lolan, Plaintiff Appellee.

Carolyn Jeanelle Smilie, Alexandria, for Louisiana Industries, Defendant Appellant.

Before KNOLL, COOKS and SAUNDERS, JJ.

KNOLL, Judge.

This is a worker's compensation case in which the employer, Louisiana Industries, appeals a judgment of the Office of Worker's Compensation that awarded Supplemental Earnings Benefits (SEB) to Robert Lolan, Louisiana Industries' employee. Louisiana Industries contends that the hearing officer erred in awarding SEB. Lolan answered the appeal, contending that the hearing officer *618 miscalculated the SEB award and further asks us to amend the judgment of the hearing officer because she failed to make a specific award of attorney's fees[1] even though her reasons for judgment grant an attorney's fee award of $5,000.

FACTS

Louisiana Industries hired Lolan in September of 1992 as a production swing-shift man at its gravel pit operation in Woodworth, Louisiana. Louisiana Industries stipulated that Lolan had an on-the-job accident on May 11, 1993, and that the accident occurred while he was in the course and scope of his employment. Lolan testified that he injured his right shoulder as he was closing a chute to a wash plant.

Dr. Daniel Edwards, a physician with the Cabrini Center for Occupational Medicine, treated Lolan on the day of the accident and continued treatment until June 29, 1993. Dr. Edwards treated Lolan for a biceps strain or traumatic tendinitis of the long-head of the biceps. Throughout the time of his treatment with Dr. Edwards, Lolan was released to work with restrictions on the use of his right arm and right hand; he was further instructed to have assistance when he performed heavier work. Despite these restrictions, Dr. Edwards' records indicate that Lolan continued to aggravate his injury at work.

After seven weeks of treatment, Dr. Edwards referred Lolan to Dr. Douglas L. Gamburg, an orthopedic surgeon, because the strain had not resolved. Dr. Gamburg injected the right bicipital groove with Carbocaine and had Lolan remain without working for one week. Although there were signs of improvement, Dr. Gamburg's notes show that during Lolan's employment for the Alexandria Street Department, his shoulder pain increased when he shifted gears with his right hand and when he reached overhead. On June 14, 1994, an MRI showed degenerative changes of the acromioclavicular joint with subacromial compression and impingement of the supraspinatus tendon. Based on these findings, Dr. Gamburg recommended surgical intervention.

Lolan worked for Louisiana Industries until March 13, 1994, when his job was terminated. From March 14, 1994, to August 27, 1994, Lolan was employed through Western Temporary Services doing less strenuous work for the city of Alexandria Street Department. At the time of trial, Lolan was a full-time student at Louisiana State University at Alexandria.

Louisiana Industries paid for Lolan's medical expenses, but refused to pay for his proposed surgery. It never paid him worker's compensation weekly benefits. Lolan then initiated this claim with the Office of Worker's Compensation.

SUPPLEMENTAL EARNINGS BENEFITS

Louisiana Industries contends that the hearing officer was manifestly erroneous in its award of supplemental earnings benefits. Louisiana Industries argues that Lolan is not entitled to worker's compensation benefits because he returned to the same job immediately after the accident and earned the same wages until he was terminated on March 13, 1994. It further contends that although Lolan made less than 90% of his pre-injury wages while he worked for Western Temporary Services, it is not liable because Lolan may have aggravated his injury while he worked for a subsequent employer.

The hearing officer determined that Lolan was entitled to an award of SEB. She found that after the accident Lolan worked with the assistance of a co-employee and that he had not resumed full job duties at the time of his *619 termination by Louisiana Industries. The hearing officer further determined that the work Lolan performed during his employment at Western Temporary aggravated the work-related injury he received at Louisiana Industries. Thus, she reasoned that the Louisiana Industries' accident was the cause of his present disability.

To recover SEB, based upon disability and not substantial pain, an employee must first prove by a preponderance of the evidence that he is unable to earn wages equal to 90 percent or more of the wages he earned before the accident. La.R.S. 23:1221(3)(a); Peveto v. WHC Contractors, 93-1402 (La. 1/14/94), 630 So.2d 689; Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989); Glascock v. Georgia-Pacific Corp., 25677 (La.App. 2 Cir. 3/30/94), 635 So.2d 474. If the employee overcomes this initial step, then the burden shifts to the employer to establish that the employee is earning less than he is able to earn by showing the employee is physically able to perform a certain higher paying job and that the job was offered to him or was available to him in a reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Peveto, 630 So.2d 689. Furthermore, it is well accepted that an aggravation of a work-related injury is compensable even if it occurs away from work. Kelly v. City of New Orleans, 414 So.2d 770 (La.1982). A causal connection is found between an original work-related accident and a subsequent accident which aggravates a work-related injury when it is shown that the first injury predisposed the employee to the second injury. Id.

In her written reasons for judgment, the hearing officer stated:

It is true ... that plaintiff is not entitled to disability benefits as long as he continued to work for LOUISIANA INDUSTRIES at wages equal to wages earned prior to the accident. The question remains, however, whether plaintiff suffered a new injury or an aggravation of the old injury while working for his subsequent employer, Western Temporary Services.
* * * * * *
There is no legal basis to conclude that aggravation of a previous injury during subsequent employment terminates the employee's right to supplemental earnings benefits from the employer whose job predisposed him to injury. Plaintiff's subsequent aggravation of his shoulder while working for Western Temporary Services was foreseeable and came about as the result of his employment and injury while working for LOUISIANA INDUSTRIES. That injury predisposed him to future aggravation/injury and future disability. Therefore, defendant is responsible for subsequent disability.
The record contains ample evidence to support a finding of reinjury of the shoulder as the result of shifting gears while working for Western Temporary Services. Both Dr. Edwards and Dr. Gamburg cautioned plaintiff to avoid strenuous activity. The evidence indicates that, although plaintiff continued to work long hours and perform much of his old job at LOUISIANA INDUSTRIES with some restrictions, he also continued to suffer from intermittent shoulder pain due to stress placed on the shoulder at work. These problems continued with his next employer. The MRI was consistent with the initial injury and with the subsequent complaints of pain over time. Dr.

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Bluebook (online)
664 So. 2d 616, 1995 WL 640684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lolan-v-louisiana-industries-lactapp-1995.