Payne v. Lawn Lourd Lawn Service

803 So. 2d 321, 2001 La. App. LEXIS 2916, 2001 WL 1541180
CourtLouisiana Court of Appeal
DecidedDecember 5, 2001
Docket35,491-WCA
StatusPublished
Cited by10 cases

This text of 803 So. 2d 321 (Payne v. Lawn Lourd Lawn Service) 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
Payne v. Lawn Lourd Lawn Service, 803 So. 2d 321, 2001 La. App. LEXIS 2916, 2001 WL 1541180 (La. Ct. App. 2001).

Opinion

803 So.2d 321 (2001)

Gregory L. PAYNE, Plaintiff-Appellee,
v.
LAWN LOURD LAWN SERVICE, Defendants-Appellants, et al.

No. 35,491-WCA.

Court of Appeal of Louisiana, Second Circuit.

December 5, 2001.

*322 Hudson, Potts & Bernstein, L.L.P., by Jan P. Christiansen, Counsel for Appellant, Lawn Lourd Lawn Service.

Egan, Johnson & Stiltner, by Patricia L. Barfield, Counsel for Appellant, Louisiana Workers' Compensation Corporation.

*323 Louis G. Scott, Counsel for Appellee.

Before CARAWAY, PEATROSS & KOSTELKA, JJ.

PEATROSS, J.

This is an appeal from a judgment by the Workers' Compensation Judge ("WCJ") which found that Defendants, Lawn Lourd Lawn Services ("Lawn Lourd") and the Louisiana Workers' Compensation Corporation ("LWCC"), failed to provide adequate vocational rehabilitation to Plaintiff, Gregory Payne, following an injury he sustained during the course and scope of his employment with Lawn Lourd. Specifically, the WCJ found that four potential jobs identified by the vocational rehabilitation counselor for Mr. Payne required activities that were outside of the physical restrictions imposed on him by his treating physician. In addition, the WCJ found that the jobs were not "available" to Mr. Payne because the jobs had not first been submitted to his treating physician for approval prior to being mailed to him. Mr. Payne's supplemental earnings benefits ("SEBs") were reinstated by the WCJ and Defendants were ordered to provide further vocational rehabilitation services to him. Mr. Payne was ordered to obtain his GED and driver's license and to cooperate with the vocational rehabilitation worker. Defendants suspensively appeal. For the reasons stated herein, we reverse the judgment of the WCJ.

FACTS

Mr. Payne was injured in an automobile accident during the course and scope of his employment with Lawn Lourd. As a result of the accident, Mr. Payne sustained a major hip injury and a less severe back injury (protruding vertebrae). His treating physician was Dr. Douglas Liles. Mr. Payne required hip replacement surgery and Dr. Liles imposed general activity and employment restrictions commensurate with his condition. Defendants provided Mr. Payne vocational rehabilitation services. Helen Carroll was the vocational counselor initially assigned to Mr. Payne and who conducted the initial assessment/interview with him. The hip surgery, however, interrupted the vocational counseling and Ms. Carroll closed the file. When the file was re-opened following the surgery, Charles Smith, who was working for Ms. Carroll as an apprentice at the time, was assigned to Mr. Payne's case.[1] In August 1998, Mr. Smith contacted Mr. Payne and Dr. Liles to schedule a rehabilitation conference, after which it was determined that Mr. Payne had reached maximum medical improvement and could return to work in the medium category. Mr. Smith then conducted a labor market survey on January 10, 2000, and identified four jobs at the following businesses which he believed to fit the physical restrictions placed on Mr. Payne by Dr. Liles: (1) Lube Plus; (2) Snappy Lube; (3) West Monroe Golf Cart Sales; and (4) Johnny's Pizza No. 1. Mr. Smith mailed the job availability studies to Mr. Payne and to Dr. Liles for approval that same day. Mr. Payne testified at trial that he received the availability studies the following day, January 11, 2000.

On receipt of the availability studies, Mr. Payne took them to Dr. Liles for his approval rather than applying for the jobs. Dr. Liles gave his verbal approval of the jobs to Mr. Payne; however, Mr. Payne *324 still did not apply for any of them. LWCC received the job availability studies bearing Dr. Liles' signature of approval on each of the four studies on January 26, 2000. On March 31, 2000, Mr. Paynes' SEBs ($105.09 per week) were terminated due to his failure to contact any of the potential employers identified for him.

At trial, Mr. Payne contended that the job descriptions contained in the four job availability studies were beyond the restrictions placed on his activity by Dr. Liles. Mr. Payne and his mother both testified, each describing Mr. Payne's limitations and the continued pain he was experiencing even with normal activity. Mr. Payne also testified that his failure to apply for the jobs was because of his lack of transportation-his driver's license was suspended due to a DWI conviction approximately seven years prior to the trial of this matter[2] -and a lack of funds for public transportation.

Mr. Smith was called as a witness on behalf of Defendants; however, the WCJ excluded his testimony due to his unlicensed status at the time he was working with Mr. Payne. Defendants proffered Mr. Smith's testimony, but this issue has not been raised on appeal. Ms. Carroll, Mr. Smith's direct supervisor, testified concerning the vocational rehabilitation efforts undertaken by herself and Mr. Smith on behalf of Mr. Payne. She described the services rendered Mr. Payne and explained the processes of performing the labor market survey and compiling the job availability studies. Ms. Carroll testified that it is the role of the vocational counselor to match a claimant's physical capabilities with employment opportunities currently available in the claimant's geographic area. The physician is also notified and approval of the jobs identified is requested. According to Ms. Carroll, if a claimant becomes employed at an identified job, but the physician subsequently disapproves of the job, the claimant would not be required to retain the employment and vocational rehabilitation services would continue until suitable employment is located.

Dr. Liles' deposition was introduced in lieu of his live testimony. In his deposition, Dr. Liles described the restrictions placed on Mr. Payne, which will be fully discussed later in this opinion.

At the conclusion of the trial, the WCJ found that the jobs identified for Mr. Payne were outside of the physical restrictions imposed by Dr. Liles and reinstated benefits to Mr. Payne, ordered Mr. Payne to complete his GED and to attempt to get his driver's license and ordered further vocational counseling.

DISCUSSION

An employee who is injured as the result of a work-related accident is entitled to SEBs if the injury renders the employee unable to earn at least 90 percent of his or her pre-injury wage. La. R.S. 23:1221(3)(a). The burden of proving this rests with the employee. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. If the employee succeeds in carrying this burden, the burden shifts to the employer to prove that the employee is physically able to perform a certain job and that the job was offered to the employee, or that the job was available to the employee in his or her or the employer's geographic region. La. R.S. 23:1221(3)(c)(i); Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 *325 (La.7/1/97), 696 So.2d 551. Actual job placement is not required. Turner v. Sunbelt Manufacturing, 32,691 (La.App.2d Cir.6/14/00), 763 So.2d 770. If the employer satisfies its burden of showing that the claimant was physically capable of work and that work was offered or available, the claimant must show, by clear and convincing evidence unaided by any presumption of disability, that he is unable to perform employment offered or available solely as a consequence of substantial pain. La. R.S. 23:1221(3)(c)(ii); Baker v. Libbey Glass, Inc., 32,748 (La.App.2d Cir.5/10/00), 759 So.2d 1007, writ denied, 00-1676 (La.9/15/00), 768 So.2d 1280;

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Bluebook (online)
803 So. 2d 321, 2001 La. App. LEXIS 2916, 2001 WL 1541180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payne-v-lawn-lourd-lawn-service-lactapp-2001.