Morgan v. Glazers Wholesale Drug Co.

79 So. 3d 417, 2011 La. App. LEXIS 1284, 2011 WL 5170425
CourtLouisiana Court of Appeal
DecidedNovember 2, 2011
DocketNo. 46,692-WCA
StatusPublished
Cited by15 cases

This text of 79 So. 3d 417 (Morgan v. Glazers Wholesale Drug Co.) 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
Morgan v. Glazers Wholesale Drug Co., 79 So. 3d 417, 2011 La. App. LEXIS 1284, 2011 WL 5170425 (La. Ct. App. 2011).

Opinion

PEATROSS, J.

hln this workers’ compensation case, the claimant, Lynn Morgan, appeals a judgment of the Workers’ Compensation Judge (“WCJ”) finding that he failed to prove by clear and convincing evidence that he is permanently and totally disabled and declining to rule on the issue of entitlement to supplemental earnings benefits (“SEBs”). For the reasons stated herein, we affirm.

FACTS

Mr. Morgan was injured in 2002 while rebuilding a 2-liter soda case display during his employment with Glazer Wholesale Drug Co. (“Glazer”). The injury was undisputed by Glazer and Mr. Morgan began receiving total temporary disability benefits (“TTDs”) following the accident. He underwent a microdiscectomy of a rup[420]*420tured vertebral disk by Dr. Pierce Nunley, but continues to have chronic pain in his back and is under the care of pain management specialist Dr. Kathleen Majors. Mr. Morgan takes a variety of narcotic pain medications daily, including Oxycodone. At least one physician recommended weaning Mr. Morgan off of the most potent of the narcotic pain medications. A reading of the transcript reveals, however, that Mr. Morgan desires to continue the narcotic pain management therapy under Dr. Majors and appeared heavily medicated on the date of the hearing in this matter. As a result of the chronic pain, Mr. Morgan apparently suffers from depression and received an evaluation and medication from a psychiatrist at LSUHSC. Notably, in 2006, Dr. Nunley recommended a fusion surgery, which Mr. Morgan declined.

12After receiving TTDs for approximately eight years, Mr. Morgan filed the instant Disputed Claim for Compensation form seeking “a determination by the OWC that he is permanently and totally disabled” pursuant to La. R.S. 23:1221(2). Mr. Morgan’s TTD benefits were soon to expire-after 520 weeks of benefits.

The matter was tried on August 10, 2010. Mr. Morgan testified at the hearing and his medical records, as well as physicians’ depositions, were introduced. Following the hearing, the WCJ deferred ruling and ordered vocational rehabilitation assessments, which were completed and filed into the record. The WCJ ultimately found that Mr. Morgan was able to work but for his chronic pain. The WCJ ruled, therefore, that Mr. Morgan had failed to prove he was permanently and totally disabled. The WCJ declined to rule on Mr. Morgan’s entitlement to SEBs, stating in his written reasons for judgment that the court had “not been asked to resolve that issue.” Mr. Morgan’s claim was dismissed with prejudice. This appeal ensued.

DISCUSSION

On appeal, Mr. Morgan raises the following assignments of error:

1. The WCJ’s judgment finding that Mr. Morgan was unable to work only because of his chronic pain, without considering the effects of Mr. Morgan’s accident-related mental injury, was manifestly erroneous and clearly wrong.
2. The WCJ’s failure to decide whether Mr. Morgan is entitled to Supplemental Earnings Benefits, which is encompassed in the sole issue presented to the court, nature and extent of claimant’s disability, is the result of legal error, and the legal error was prejudicial to claimant’s case.
3. The WCJ’s failure to incorporate the stipulation of the parties regarding the defendant’s payment of Temporary Total | .^Disability benefits into the judgment was an abuse of discretion, was legal error, and the legal error was prejudicial to claimant’s case.

Permanent Total Disability

The relevant provisions regarding permanent total disability are found in La. R.S. 23:1221(2), which states, in pertinent part:

(a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability.
(b) For purposes of Subparagraph (2)(a) of this Paragraph, compensation for per[421]*421manent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Thus, a workers’ compensation claimant seeking permanent total disability benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. Frye v. Olan Mills, 44,192 (La.App.2d Cir.4/8/09), 7 So.3d 201, citing Greis v. Lake Charles Memorial Hospital, 97-1258 (La.App. 3d Cir.3/6/98), 709 So.2d 986, writs denied, 98-0937 & 98-0939 (La.5/15/98), 719 So.2d 467.

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Harris v. Casino Magic, 38,137 (La.App.2d Cir.1/28/04), 865 So.2d 301, writ denied, 04-0502 (La.4/8/04), 870 So.2d 275. The factual findings of the WCJ are subject to the manifest error standard of appellate review. Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112. The appellate court does not determine whether the WCJ’s factual findings and credibility calls are right or wrong, but only whether they are reasonable. Buxton v. Iowa Police Dept., 09-0520 (La.10/20/09), 23 So.3d 275. The manifest error standard applies even when the WCJ’s decision is based upon written reports, records or depositions. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992); Alexander v. Brookshire Grocery Co., 42,855 (La.App.2d Cir.1/9/08), 975 So.2d 100, writ denied, 08-0503 (La.4/25/08), 978 So.2d 367.

When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993).

|sAs a general rule, the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Frye v. Olan Mills, supra.

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Bluebook (online)
79 So. 3d 417, 2011 La. App. LEXIS 1284, 2011 WL 5170425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-glazers-wholesale-drug-co-lactapp-2011.