Manpower Temporary Services v. Lemoine

747 So. 2d 153, 99 La.App. 3 Cir. 636, 1999 La. App. LEXIS 2813
CourtLouisiana Court of Appeal
DecidedOctober 20, 1999
Docket99-636
StatusPublished
Cited by9 cases

This text of 747 So. 2d 153 (Manpower Temporary Services v. Lemoine) 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
Manpower Temporary Services v. Lemoine, 747 So. 2d 153, 99 La.App. 3 Cir. 636, 1999 La. App. LEXIS 2813 (La. Ct. App. 1999).

Opinion

747 So.2d 153 (1999)

MANPOWER TEMPORARY SERVICES, Plaintiff-Appellant,
v.
Donald LEMOINE, Defendant-Appellee.

No. 99-636.

Court of Appeal of Louisiana, Third Circuit.

October 20, 1999.

*154 Pierre M. Legrand, Metairie, for Manpower Temporary Services.

*155 Joseph Blaise Treuting, Marksville, for Donald Lemoine.

Before THIBODEAUX, PETERS, and GREMILLION, Judges.

GREMILLION, Judge.

The plaintiff, Manpower Temporary Services, appeals a judgment of the workers' compensation judge awarding the defendant, Donald Lemoine, continuing supplemental earnings benefits (SEB) and continuing vocational rehabilitation services, and granting Manpower a week for week credit for past temporary total disability benefits (TTD) paid against future SEB owed. We affirm.

FACTS

Lemoine, who was employed by Manpower as an electrician, suffered a work-related injury on December 3, 1994, while working for E.P. Breaux Contractors at the Grand Casino Avoyelles in Marksville. After being diagnosed by Dr. Thomas Bertuccini, a neurosurgeon, with a herniated disc at the L4-5 disc level, Lemoine underwent surgery on March 14, 1995. Although the microdiscectomy reduced his pain, he continued suffering persistent lower back pain and a burning sensation in his right leg. An MRI revealed post-surgical changes at the L4-5 disc level with epidural fibrosis or scar tissue on the right, but no evidence of a recurrent disc herniation.

Dr. Clifton Shepherd, an orthopedic surgeon, examined Lemoine at the request of Manpower's workers' compensation insurer, CNA Insurance Company. After detecting no objective findings of neurologic deficit, he assigned Lemoine a ten percent whole body impairment rating and recommended a permanent restriction from heavy manual labor. Dr. Shepherd found Lemoine capable of returning to light to moderate work activities.

A February 1996 functional capacity evaluation determined that Lemoine was capable of functioning at a medium to heavy work level. It found that Lemoine could lift from floor to waist: sixty pounds infrequently, fifty pounds occasionally, twenty-five pounds frequently, and seventeen pounds constantly. His functional capabilities were limited by a low endurance for forward bending, crouching, kneeling, repetitive squatting, and ladder climbing. He had decreased trunk flexibility for activities requiring sustained trunk extension and low endurance due to deconditioning for climbing ladders and stairs.

On April 25, 1996, Manpower filed a disputed claim for compensation disputing the cause and extent of Lemoine's disability, his medical treatment, and his entitlement to disability benefits. Lemoine answered this claim and filed an exception of no cause of action, which was later denied by the workers' compensation judge.

A labor market survey conducted at the request of Manpower identified nine position in Alexandria which were within Lemoine's capabilities. Nancy Favaloro, the vocational rehabilitation counselor, obtained approval from Dr. Bertuccini and Dr. Shepherd for five of these positions. Lemoine obtained a list of these positions from his attorney.

A two-day hearing was held in this matter beginning on November 21, 1996, before the Honorable Amiee Lirette Johnson. At the close of evidence, she issued oral reasons finding that Lemoine had suffered a work-related injury, he was entitled to TTD benefits from December 3, 1994 through the date of the hearing, and, although he was unable to return to his former employment, he was released to light to moderate duty. Accordingly, the workers' compensation judge held that vocational rehabilitation services were in order.

In awarding Lemoine SEB at the full TTD rate, the workers' compensation judge found credible Lemoine's testimony that he was presented with a list of positions, but was unable to secure any employment therefrom. She held that he *156 should be given the opportunity to seek employment from a list of positions compiled in a second labor market survey, received by him at the hearing. The workers' compensation judge further awarded Lemoine continuing vocational rehabilitation services if required and decreed that the vocational rehabilitation counselor should locate potential positions in the Marksville area. She informed Lemoine that she expected him to make a good faith effort while searching for employment. She placed the same burden upon Manpower in assisting him with his search. The workers' compensation judge threatened to terminate Lemoine's benefits if he failed to make a good faith effort. She ordered the parties to return to court in thirty days for a follow-up hearing. An interim order containing these findings was issued by the workers' compensation judge on December 18, 1996.

Following this hearing, the vocational rehabilitation counselor forwarded a list of six positions located in Alexandria to Manpower. On December 9, 1996, she notified Manpower about two additional positions located in or near Marksville.

Subsequent to the hearing, Lemoine continued suffering persistent lower back and leg pain as a result of his work-related injury. Dr. Bertuccini recommended physiatric and pain anaesthetic treatment as options based on his suspicion that Lemoine was suffering from a peripheral neuropathic process. Unable to find a surgically treatable problem, he released Lemoine from his care as unfit for duty. Dr. Jack Hurst, a neurosurgeon chosen by Manpower, was also unsuccessful in detecting the cause of Lemoine's pain. Believing that physiatric and paint anaesthetic treatment would be useless at this late date, Dr. Hurst recommended Lemoine keep his weight down and begin an active regimen of self-directed physical therapy. He found Lemoine capable of working.

Dr. Warren Williams, a neurosurgeon, performed an independent medical examination on Lemoine. Finding that he was not in need of physiatric or pain anesthetic treatment, Dr. Williams stated that Lemoine should be capable of performing light duty activities without difficulty.

A second hearing was held on July 17, 1998, before workers' compensation judge Patricia E. Koch. The issues at the hearing were Lemoine's entitlement to continuing SEB and the categorization of Manpower's credit as either a week for week or a dollar for dollar for past TTD paid against future SEB owed to Lemoine.

After taking the matter under advisement, the workers' compensation judge issued written reasons for judgment finding Lemoine entitled to continuing SEB at the full TTD disability rate and granting Manpower a week for week credit. The workers' compensation judge found that potential positions were provided to Lemoine, but that he was not hired either because the positions were unavailable or were beyond his physical limitations. Although the workers' compensation judge held that Lemoine did not put forth a good faith effort in searching for employment, she continued his SEB. A judgment was rendered in this matter on August 9, 1998. This appeal by Manpower followed.

ISSUES

Manpower raises three assignments of error on appeal. Initially, it claims that the workers' compensation judge erred in finding that Lemoine proved his entitlement to SEB and that it failed to establish his wage earning capacity sufficiently to reduce those benefits. It next claims that the workers' compensation judge erred by not terminating Lemoine's benefits after finding that he failed to make a good faith effort in searching for employment, as required by the prior interim order.

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Bluebook (online)
747 So. 2d 153, 99 La.App. 3 Cir. 636, 1999 La. App. LEXIS 2813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manpower-temporary-services-v-lemoine-lactapp-1999.