Pace v. City of New Orleans

761 So. 2d 602, 2000 WL 676002
CourtLouisiana Court of Appeal
DecidedApril 19, 2000
Docket99-CA-1661
StatusPublished
Cited by5 cases

This text of 761 So. 2d 602 (Pace v. City of New Orleans) 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
Pace v. City of New Orleans, 761 So. 2d 602, 2000 WL 676002 (La. Ct. App. 2000).

Opinion

761 So.2d 602 (2000)

Donald PACE
v.
CITY OF NEW ORLEANS.

No. 99-CA-1661.

Court of Appeal of Louisiana, Fourth Circuit.

April 19, 2000.

*603 William Ken Hawkins, Metairie, LA, Counsel for Plaintiff/Appellant.

(Court composed of Chief Judge ROBERT J. KLEES, Judge MIRIAM G. WALTZER, Judge DENNIS R. BAGNERIS, Sr.).

BAGNERIS, Judge.

Plaintiff/Appellant, Donald Pace ("Mr. Pace"), appeals the judgment of the Office of Workers' Compensation, whereby the Workers' Compensation Judge ("WCJ") found in favor of Defendant/Appellee, the City of New Orleans ("the City") and against Mr. Pace. The WCJ held that the City was entitled to an offset of disability benefits paid to Mr. Pace in the amount of $153.81, not the originally reduced value of $46.05, and that Mr. Pace was able to earn 90% of his pre-injury wage as of January 2, 1992. On appeal, Mr. Pace argues that the WCJ erred in calculating the disability pension offset, and in finding that he was able to earn 90% of his pre-injury wage as of January 2, 1992. For the reasons stated below, we affirm the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

The City of New Orleans hired Mr. Pace as a firefighter on April 3, 1973. On May 3, 1989, Mr. Pace began to experience chest pains when fighting a fire, which he reported to his employer. On May 7, 1989, Mr. Pace began experiencing chest pains once again. He was immediately rushed to Mercy Hospital where he was examined by Dr. Jack Ruli, an internal medicine physician, who confirmed that *604 Mr. Pace had sustained a heart attack. Dr. Ruli ordered an angiogram, which revealed damage to the front wall of Mr. Pace's heart.

On May 11, 1989, based upon the results of the angiogram, Mr. Pace underwent heart surgery consisting of a four-vessel coronary bypass. Dr. Ruli subsequently determined that Mr. Pace was suffering from significant ischemic heart disease. Accordingly, in February of 1990, Dr. Ruli advised the City that Mr. Pace was permanently disabled from performing his fire-fighting duties. On February 17, 1990, Mr. Pace was forced to leave the fire department, and he was awarded a disability pension.

At the time of his injury, Mr. Pace had an average weekly wage of $551.74. On November 3, 1991, the City exercised an offset based upon Mr. Pace's receipt of disability pension benefits, thereby reducing his weekly workers' compensation benefits from $267.00 to $46.05 per week. On February 10, 1997, after many fruitless requests to remove the offset, Mr. Pace filed suit against the City.

On May 13, 1998, the trial was held. At the conclusion of the claimant's portion of the trial, the WCJ recessed the trial. The trial was completed on September 28, 1998. In a judgment dated February 18, 1999, the WCJ found that the City was entitled to an offset of disability benefits from the time period of February 17, 1990 through January 2, 1992, in the amount of $153.81 per week, instead of the $46.05 per week that the City was currently paying. The WCJ further found that Mr. Pace was able to earn 90% of his pre-injury wages as of January 2, 1992. It is from this ruling that Mr. Pace now appeals.

DISCUSSION

Standard of Review

Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Freeman v. Poulan/Weed Eater, 93-1530, (La.1/14/94), 630 So.2d 733. In applying the manifest error-clearly wrong 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. Banks, supra; Freeman, supra; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Mart v. Hill, 505 So.2d 1120 (La.1987). Where there are two permissible views of the evidence, a fact finder's choice between them can never be manifestly erroneous or clearly wrong. Banks, supra; Stobart, supra. Thus, "if the [fact finder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Banks, supra; Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

LAW AND DISCUSSION

I. THE TRIAL COURT DID NOT ERR IN CALCULATING THE DISABILITY PENSION OFFSET.

In the present case, Mr. Pace asserts that through May of 1989, he was a full-time employee of the New Orleans Fire Department and a part-time employee of the Fair Grounds as a ticket seller. On May 3, 1989, Mr. Pace suffered a debilitating heart attack that, upon the advice of his treating physician, ended his career as a fireman. On February 17, 1990, Mr. Pace began to receive disability payments of $1319.35 a month, or $213.21 a week, and workers' compensation benefits of $1068.00 a month, or $267.00 a week. On November 3, 1991, Mr. Pace's workers' compensation benefits were reduced from $267.00 per week to $46.05 per week. As a result, he filed suit against the City of New Orleans charging that the formula *605 used to calculate his reduction in his weekly workers' compensation benefits was improper as it did not comply with the jurisprudence of this State. We disagree.

LSA-R.S. 23:1021(10)(a)(i) provides in pertinent part:

"Wages" means average weekly wage at the time of the accident.
Hourly wages. If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater.

The employer carries the burden of proving the amount of credit to which it is entitled under LSA-R.S. 23:1225 C(1). Matthews v. City of Alexandria, 619 So.2d 57 (La.1993). In calculating an offset, the trier of fact must (1) determine the claimant's average weekly wage ("AWW") and (2) determine the total remuneration from the workers' compensation benefits and the other identified benefits as set forth in LSA-R.S. 23:1225 C(1).

Specifically, LSA-R. S. 23:1225 C(1) provides the following:

If an employee receive remuneration from:
(a) Benefits under the Louisiana Workers' Compensation Law,
(b) Old-age insurance benefits received under Title II of the Social Security Act to the extent not funded by the employee
(c) Benefits under disability benefit plans in the proportion funded by an employer,
(d) Any other workers' compensation benefits, then compensation benefits under this Chapter shall be reduced, unless there is agreement to the contrary between the employee and the employer liable for payment of the workers' compensation benefit, so that the aggregate remuneration ... shall not exceed sixty-six and two-thirds percent of his average weekly wage.

In addition, any offset due to the employer under LSA-R.S. 23:1225 C(1) cannot reduce the employee's combined workers' compensation benefits and disability benefits below 66 2/3% of his AWW. Garrett v. Seventh Ward General Hospital, 95-0017, (La.9/22/95) 660 So.2d 841; Cousins v. City of New Orleans, 608 So.2d 978 (La.1992).

Mr.

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Bluebook (online)
761 So. 2d 602, 2000 WL 676002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pace-v-city-of-new-orleans-lactapp-2000.