Paddie v. American Interstate Insurance Co. of Georgia

663 So. 2d 187, 95 La.App. 3 Cir. 293, 1995 La. App. LEXIS 2595, 1995 WL 579547
CourtLouisiana Court of Appeal
DecidedOctober 4, 1995
DocketNo. 95-293
StatusPublished
Cited by1 cases

This text of 663 So. 2d 187 (Paddie v. American Interstate Insurance Co. of Georgia) 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
Paddie v. American Interstate Insurance Co. of Georgia, 663 So. 2d 187, 95 La.App. 3 Cir. 293, 1995 La. App. LEXIS 2595, 1995 WL 579547 (La. Ct. App. 1995).

Opinion

| iPETERS, Judge.

This is a workers’ compensation case. The plaintiff, Joseph Paddie, was injured on November 11, 1991, while harvesting timber for J.J. Timber Company. The defendant, American Interstate Insurance Company of Georgia (American Interstate), paid workers’ compensation benefits through January 6, 1993. Paddie subsequently filed this action with the Office of Worker’s Compensation Administration seeking additional benefits. The hearing officer rendered judgment in favor of the plaintiff finding him to be totally and permanently disabled but denying his claim for penalties and attorney fees. American Interstate has appealed. Paddie has answered the appeal seeking an award of penalties and attorney fees.

I ¡¿DISCUSSION OF THE RECORD

Joseph Paddie was bom May 26,1936, and at the time of the accident, was a contract logger doing business as Joseph Paddie Logging Company, working primarily out of Sabine Parish, Louisiana. As a contract logger, Paddie would enter into contracts with timber owners to cut and haul timber to the market for a fee. At the time of his accident, his company was operating three haul tracks and he was employing two skidder operators and two saw hands. He has a fifth-grade [189]*189education and functions at the seventh-grade level.

The fact that Paddie received a work-related injury is not in dispute. On November 6, 1991, Paddie was at the scene of a logging operation when he was struck by a tree or large limb. As a result of the accident, Paddie sustained a comminuted fracture of his right wrist, a right displaced tibia plateau fracture, and various minor cuts and bruises. He was treated for his injuries by Dr. Edward L. Morgan, a Shreveport, Louisiana orthopedic surgeon. The tibia fracture was treated by placing the right leg in a cast, but the wrist fracture required surgery. The plaintiff was hospitalized from the date of the accident until November 9, 1991. American Interstate admitted coverage under its policy and paid all medical expenses and weekly benefits at the rate of $245.00 through January 6, 1993.

Dr. Morgan continued to follow the plaintiffs recovery progress, and on May 5, 1992, released him to return to work on a trial basis. However, even before the conditional release, Dr. Morgan had already recognized that the plaintiff had begun to develop increased post-traumatic arthritis in the right wrist. The release was not satisfactory in that Paddie was unable to drive a vehicle or perform various 18mechanical tasks associated with the logging industry, and by June 26, 1991, Dr. Morgan had concluded that the plaintiff had been released too soon. Attempts to gradually build the plaintiffs strength thereafter were not successful. On October 28, 1992, Dr. Morgan assessed the plaintiffs permanent disability to be twenty-seven percent of the body as a whole; concluded that Paddie had made honest efforts to return to work; and determined that he could not be released to return to the logging industry.

Dr. Richard H. Galloway, an expert certified rehabilitation counselor, testified that there was no employment available for an individual with Paddie’s education, experience, and physical condition. He based this opinion on his evaluation of Dr. Morgan’s testimony and an interview with the plaintiff. The plaintiff and his son, Joseph Donald Paddie, testified as to his ability to work in the industry before and after the accident.

After trial, the hearing officer concluded the plaintiff was entitled to total and permanent disability benefits, and the defendant has appealed alleging five assignments of error. American Interstate first argues that the hearing officer erred in awarding total and permanent disability. The last assignment relates to the method of calculation of benefits. The other three relate to the question of total and temporary benefits, supplemental earnings benefits, and partial and permanent disability. Because we find that the hearing officer did not err in awarding total and permanent benefits, we need consider only the first and last assignments.

ANALYSIS

An injury which produces permanent total disability is one which prevents a claimant from engaging “in any self-employment or occupation for wages, whether Ror 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.” La.R.S. 23:1221(2)(a). A claimant’s burden of proof is to show “by clear and convincing evidence, unaided by any presumption of disability” that he “is physically unable to engage in any employment or self-employment” regardless of its particular nature. La.R.S. 23:1221(2)(e).

While acknowledging the disabling extent of the plaintiff’s injuries, the defendant argues that in November of 1992 the plaintiff returned to work in a supervisory, managerial, and contracting capacity and is therefore not totally and permanently disabled. The evidence of this ability, according to the defendant, is that Paddie still has the ability to negotiate and sign contracts, supervise the crew in the field from time to time, and handle some of the public relations with potential clients. However, as pointed out by the plaintiff, there is no “white collar management level” position in the logging industry and the plaintiffs importance to the company was his ability to physically produce as well as handle the company negotiations. Even though he might be able to perform [190]*190such activities on a part-time basis, the evidence reflects that he is unable to do so on a day-to-day basis. As pointed out by Dr. Galloway, the plaintiff is unable to engage in any type of substantial gainful activity.

We first note that in a workers’ compensation case, our review is subject to the manifest error or clearly wrong standard. Freeman v. Poulan/Weed, Eater, 93-1530 (La. 1/14/94); 630 So.2d 733. In this case, it is uncontradicted that the plaintiff sustained disabling injuries; that he has a twenty-seven percent permanent disability of the body as a whole; that he has tried to return to his occupation and has been Runable to do so because of his disability and pain; that he has limited educational skills; and that there is no employment available for an individual with his education, experience, and physical condition. Given these facts, we do not find that the hearing officer’s conclusion of permanent and total disability is manifestly erroneous or clearly wrong. Having found that the plaintiff is entitled to permanent and total disability compensation benefits, we turn to the last assignment of error which relates to the manner of calculation of compensation benefits. Without stating the basis for the decision, the hearing officer concluded the appropriate compensation rate is $295.00 per week.

The defendant contends this calculation was in error and that it should have been calculated pursuant to La.R.S. 23:1021(10)(d) which reads as follows:

(d) Other wages.

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Bluebook (online)
663 So. 2d 187, 95 La.App. 3 Cir. 293, 1995 La. App. LEXIS 2595, 1995 WL 579547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paddie-v-american-interstate-insurance-co-of-georgia-lactapp-1995.