Mack v. Cerro Copper Tube

850 So. 2d 1005, 2003 La. App. LEXIS 1834, 2003 WL 21461187
CourtLouisiana Court of Appeal
DecidedJune 25, 2003
DocketNo. 37,319-WCA
StatusPublished

This text of 850 So. 2d 1005 (Mack v. Cerro Copper Tube) 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
Mack v. Cerro Copper Tube, 850 So. 2d 1005, 2003 La. App. LEXIS 1834, 2003 WL 21461187 (La. Ct. App. 2003).

Opinion

hBROWN, C.J.

Claimant, Lucille Young Mack, appeals a judgment rejecting her demand for workers’ compensation benefits. For the reasons expressed, we affirm.

Facts

Mrs. Mack began employment with Cer-ro Copper Tube & Constitution State Services Company (“Cerro”) in November of 1983. Her job included fastening and in-fixing insulation into copper tubing on the assembly line; this job was recognized as a “rabbit operator” position. At some unspecified time, she moved to an “insert-er/packer” position. On April 15, 1999, Mrs. Mack was diagnosed with Carpal Tunnel Syndrome (“CTS”) in both hands. Cerro began paying workers’ compensation benefits to Mrs. Mack shortly after this diagnosis.1 On September 24, 1999, Mrs. Mack underwent CTS release surgery on her left hand; on October 27, 1999, she underwent the same surgery on her right hand. Dr. William Webb, an orthopedic surgeon, performed both of these surgical procedures. Post-surgical diagnostic studies revealed improvement to her right hand, but there has been no improvement in her left hand.

Dr. Webb opined that Mrs. Mack could return to work full time in January 2000, with no restrictions. She first returned to work on January 9, 2000, but four days [1007]*1007later sought medical attention from Dr. Webb complaining of pain in her arms. Although he did not find any abnormalities in his clinical evaluation, Dr. Webb ordered another ^diagnostic study. This study confirmed that the CTS had improved in her right hand but not in her left hand.

On January 19, 2000, Mrs.'Mack sought a second opinion from Dr. Michael Acurio, another orthopedic surgeon. At trial, Mrs. Mack testified that she went to see Dr. Acurio for a second opinion after Dr. Webb had cleared her to return to work without restrictions. Dr. Acurio treated her for a few months and ultimately concluded that she had reached maximum medical improvement. During this time, Mrs. Mack continued to see Dr. Webb, who prescribed occupational therapy.

After undergoing occupational therapy, Mrs. Mack’s therapist, Paul Procell, and Dr. Webb agreed that she could return to work with restrictions; these restrictions limited frequent grasping or pulling as well as lifting or carrying anything over 20 pounds. Mrs. Mack returned to work for a second time on May 25, 2000, with the above referenced restrictions and on light-duty. She worked only four hours and was sent home the same day.

At this point, Cerro retained Alice Rogers-Bond, a licensed vocational rehabilitation consultant. After evaluating different positions at Cerro, Ms. Bond believed that the inserter/packer position fell within the work restrictions prescribed by Mrs. Mack’s physician. An inserter/packer places (already) rolled-up coil tubes of liquid and suction lines into boxes on the assembly line. Ms. Bond prepared a videotape of this particular job and on September 13, 2000, met with Mrs. Mack and Dr. Webb. After reviewing the videotape, Dr. Webb agreed that Mrs. Mack was capable of performing this job, but recommended that she work only a half day for the 1 ¡¿first two weeks. Dr. Acurio also reviewed the video and concurred that Mrs. Mack could return to work in this position.

On October 5, 2000, Cerro offered Mrs. Mack the position of inserter/packer and she agreed to the proposed job. Her third and final attempt to return to work took place on October 12, 2000. She only stayed at work for an hour and a half that day. The next day, she saw Dr. Webb and complained that the work caused substantial pain. Although finding no objective physical changes, he accepted Mrs. Mack’s statements and agreed that she was unable to work at Cerro in any capacity. On December 14, 2000, Cerro offered her the position again, specifying that her salary would be what she was earning prior to her occupational disease, $11.34 per hour.

Ultimately, Cerro discontinued paying workers’ compensation benefits to Mrs. Mack on January 2, 2001. On February 13, 2001, she filed the instant disputed workers’ compensation claim because her benefits had been terminated. Mrs. Mack sought indemnity benefits from January 2, 2001, as well as penalties and attorney fees.

On January 10, 2002, the Workers’ Compensation Judge (“WCJ”) appointed Dr. Edwin Simonton, an orthopedic surgeon, to perform an Independent Medical Examination (“IME”). He found that Mrs. Mack had fully recovered from her operations and was capable of returning to work. Dr. Simonton also reviewed the video of the inserter/packer position and found it suitable for Mrs. Mack.

| ¿Trial of this matter was held on August 30, 2002. Claimant represented herself [1008]*1008throughout the proceedings.2 The WCJ denied Mrs. Mack’s claim for benefits, penalties, and attorney fees on October 18, 2002. It is from this judgment that she has appealed.

Discussion

The sole issue before this court is whether the WCJ was manifestly erroneous in finding that claimant failed to prove by clear and convincing evidence that she was unable to do the job offered by Cerro.

Standard of Review

The findings of the WCJ will be affirmed unless the judgment is manifestly erroneous. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. When the judgment is based on a credibility call, great deference must be given to the WCJ’s findings. A credibility call may be reversed only when documents or objective evidence so contradict the story of the witness, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit it. In the absence of such a showing, the WCJ’s choice between two permissible views of the evidence will not be disturbed. Rosell v. ESCO, 549 So.2d 840 (La.1989); Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.03/04/98), 708 So.2d 375; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551; Jones v. Ruskin Mfg., 36,548 (La.App.2d Cir.12/11/02), 834 So.2d 1126; Cox v. Roofing Supply, Inc., 36,275 (La.App.2d Cir.08/14/02), 825 So.2d 1271.

Temporary Total Disability Benefits

Compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence her inability to engage in any employment or self-employment. La. R.S. 23:1221(1)(a). McNeal v. Massman Construction, Co., 98-1792 (La.App.3d Cir.05/05/99), 738 So.2d 602, writ denied, 99-2157 (La.11/05/99), 750 So.2d 974.

In this case, Mrs. Mack has failed to establish that she was physically incapable of performing any employment. The medical evidence indicates her ability to work with restrictions. The WCJ was not manifestly wrong.

Supplemental Earnings Benefits

Supplemental Earnings Benefits (“SEB”) are defined in La. R.S. 23:1221(3)(a). The purpose of SEB is to compensate the injured employee for the wage earning capacity she has lost as a result of her injury. An employee is entitled to receive supplemental earnings benefits if she has sustained a work-related injury that results in her inability to earn 90% or more of her average pre-injury wage.

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Related

Chaisson v. Cajun Bag & Supply Co.
708 So. 2d 375 (Supreme Court of Louisiana, 1998)
Cox v. Roofing Supply, Inc.
825 So. 2d 1271 (Louisiana Court of Appeal, 2002)
Anthony v. BE & K CONST.
760 So. 2d 608 (Louisiana Court of Appeal, 2000)
Banks v. Indus. Roofing & Sheet Metal
696 So. 2d 551 (Supreme Court of Louisiana, 1997)
Jones v. Ruskin Mfg.
834 So. 2d 1126 (Louisiana Court of Appeal, 2002)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Pinkins v. Cardinal Wholesale Supply, Inc.
619 So. 2d 52 (Supreme Court of Louisiana, 1993)
McNeal v. Massman Construction Co.
738 So. 2d 602 (Louisiana Court of Appeal, 1999)

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850 So. 2d 1005, 2003 La. App. LEXIS 1834, 2003 WL 21461187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-v-cerro-copper-tube-lactapp-2003.