Mason v. Auto Convoy

662 So. 2d 843, 1995 WL 637968
CourtLouisiana Court of Appeal
DecidedNovember 1, 1995
Docket27444-CA
StatusPublished
Cited by11 cases

This text of 662 So. 2d 843 (Mason v. Auto Convoy) 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
Mason v. Auto Convoy, 662 So. 2d 843, 1995 WL 637968 (La. Ct. App. 1995).

Opinion

662 So.2d 843 (1995)

Elton E. MASON, Plaintiff-Appellant,
v.
AUTO CONVOY, Defendant-Appellee.

No. 27444-CA.

Court of Appeal of Louisiana, Second Circuit.

November 1, 1995.

*844 Jack M. Bailey, Jr., Shreveport, for Appellant.

Cook, Yancey, King & Galloway by Sidney E. Cook, Jr. and S. Price Barker, Shreveport, for Appellees, Auto Convoy and Reliance Insurance Co.

Before MARVIN and WILLIAMS, JJ., and CLARK, J. Pro Tem.

MARVIN, Chief Judge.

Elton Mason appeals a judgment of the Workers Compensation Hearing Officer (WCHO) that denied Mason's demands for additional w.c. benefits, on the finding that *845 Auto Convoy had properly paid all benefits to which Mason was entitled because Mason had retired.

We affirm.

FACTS

Elton Mason was injured in the course and scope of his employment as a truck driver with Auto Convoy on September 4, 1989. He initially saw Dr. W.W. Fox, an orthopedist, on September 12, 1989. He saw Dr. Fox regularly, and his visits coincide with Dr. Fox's notes of when he should return. On April 19, 1990, Dr. Fox recommended a CAT scan and a lumbar myelogram, and scheduled Mason for another opinion with Dr. Carl Goodman. After Mason refused the myelogram and CAT scan, Dr. Fox began treating him with physical therapy. Dr. Fox reported to Auto Convoy's w.c. insurer on September 4, 1990, that Mason was released to return to light or sedentary employment having reached maximum medical improvement.

After Dr. Fox recommended the myelogram and CAT scan on April 19, Mason saw Dr. Goodman on April 27, 1990. Dr. Goodman returned Mason to Dr. Fox for follow-up treatment. Mason saw Dr. Goodman three other times, August 22, 1990, February 18, 1991, and April 20, 1993. On the last visit Dr. Goodman reported that Mason had reached maximum medical improvement.

Mason wrote a letter dated July 23, 1990, to Auto Convoy stating he was retiring effective August 31, 1990. He testified he sent a copy of the letter to the Teamsters Union, of which he is a member. The letter had its desired effect, allowing Mason to receive his union pension.

Auto Convoy paid Mason w.c. benefits through October 27, 1992. Auto Convoy classified these payments as temporary total disability benefits (TTDs) until October 3, 1990, after Dr. Fox's letter of September 4, 1990, and as supplemental earnings benefits (SEBs) thereafter. The checks dated before October 3, 1990, are labeled "TTD" or "temporary indemnity." The checks dated October 3, 1990, to October 27, 1992, are labeled "permanent indemnity."

Mr. Fred Blohm, the branch supervisor of GAB, the claims adjuster for Auto Convoy's w.c. insurer, testified that Louisiana is the only state among the many served by GAB using the SEB designation. GAB's computerized check printing and signing machines do not preprint the SEB designation. Because of the volume of checks printed, it would be impractical to print the designation manually.

Auto Convoy stopped paying Mason w.c. benefits believing Mason had retired within the meaning of LRS 23:1221(3)(d)(iii). This decision was not based on the letter alone. Blohm testified about the other factors considered in this determination. Mason had moved from Shreveport to Monticello, Miss., a rural community about one-tenth the size of Shreveport. He began receiving his union pension. He stopped going to the doctor. Mason made no effort to locate alternate employment. The medical reports from his doctor, Dr. Greg Wood of Jackson, Miss., referred to Mason as a retired truck driver, and a typewritten claim form sent from Dr. Wood's office to the insurer had "retired" typed into the space designated for Mason's employer.

The WCHO found that Mason had retired effective August 31, 1990; that after he retired, he received 104 weeks plus additional weeks of SEBs; that the payments Mason received after he reached maximum medical improvement and was released to light and sedentary work by Dr. Fox on September 4, 1990, were SEBs and not TTDs; and that even if these checks were for TTDs, Auto Convoy would be entitled to receive a credit for TTDs paid against SEBs owed.

DISCUSSION

Mason assigns 16 errors which we consolidate into two issues relating to whether Mason was retired within the meaning of the statute and whether the later benefits paid were SEBs.

The factual findings of the WCHO are subject to the manifest error standard of review and will not be set aside on appeal unless clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La. 2/28/94), *846 633 So.2d 129; Freeman v. Poulan/Weed Eater, 93-1530 (La. 1/14/94), 630 So.2d 733.

Meaning of Retirement

In his assignments 2, 6, 7, 10, 11, 14, and part of assignment 1, Mason argues that he has not in fact retired within the contemplation of the w.c. statute.

LRS 23:1221(3)(d)(iii) states:
(d) The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate:
(iii) When the employee retires or begins to receive old age insurance benefits under Title II of the Social Security Act, whichever comes first; however, the period during which supplemental earnings benefits may be payable shall not be less that one hundred four weeks.

A worker retires under LRS 23:1221(3)(d)(iii) when the worker either withdraws from the work force or receives the old age Social Security benefits, whichever first occurs. Allen v. City of Shreveport, 93-2928 (La. 5/23/94), 637 So.2d 123. Resolving a conflict between the second and third circuits, Allen stated that it was not necessary for the worker to have permanently withdrawn from the work force in order to be said to have retired. Compare Breaux v. Travelers Ins. Co., 526 So.2d 284 (La.App. 3d Cir.1988), and Allen v. City of Shreveport, 626 So.2d 854 (La.App.2d Cir.1993). The determination of whether an employee has withdrawn from the work force is based on many factors, including age, but the circumstances of each case should control. Allen, who was only 55 years old, was held not to have withdrawn from the work force under the peculiar circumstances of his case.

Because Mason is not drawing old age Social Security benefits, our inquiry is whether the record circumstances of his case allow the conclusion that he had withdrawn from the work force.

Admission of Documents

Mason's attorney objected to the introduction of a typed health insurance claim form on which a space marked for the employer's name was filled in "retired," saying no foundation had been laid. This form was received by GAB from Dr. Wood's office in Mississippi. Blohm testified that the receipt of this document was one of the things considered in declaring Mason retired; however, it was just one factor in the calculus. Mason did not object to Blohm's testimony about the document and its contents. Any assumed error in admitting this document is harmless.

Withdrawal from the Work Force

Mason asserts that an injured employee in his position is not retired within the meaning of LRS 23:1221(3)(d)(iii). Mason describes himself as a 63-year-old worker, entitled to SEBs, released to light or sedentary employment but unable to find work, not offered work, not offered rehabilitation, waiting to see if he needs surgery, not receiving Social Security retirement benefits, who voluntarily resigned to preserve union seniority rather than waiting to be fired.

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Bluebook (online)
662 So. 2d 843, 1995 WL 637968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mason-v-auto-convoy-lactapp-1995.