Penton v. SIEMENS ENERGY AND AUTOMATION

646 So. 2d 496, 1994 WL 668102
CourtLouisiana Court of Appeal
DecidedNovember 30, 1994
Docket94-CA-0286
StatusPublished
Cited by3 cases

This text of 646 So. 2d 496 (Penton v. SIEMENS ENERGY AND AUTOMATION) 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
Penton v. SIEMENS ENERGY AND AUTOMATION, 646 So. 2d 496, 1994 WL 668102 (La. Ct. App. 1994).

Opinion

646 So.2d 496 (1994)

Fred PENTON
v.
SIEMENS ENERGY AND AUTOMATION INC. and Zurich American Insurance Company.

No. 94-CA-0286.

Court of Appeal of Louisiana, Fourth Circuit.

November 30, 1994.

*498 Lloyd N. Frischhertz, Seelig, Cossé, Frischhertz & Poulliard, New Orleans, for plaintiff.

Delbert G. Talley, Covington, for defendant.

Before KLEES, CIACCIO and ARMSTRONG, JJ.

ARMSTRONG, Judge.

This is a worker's compensation case. The trial court awarded the plaintiff, Fred Penton, Supplemental Earnings Benefits for one of the two periods claimed by Mr. Penton and also awarded him part of the medical expenses and medical deposition costs claimed by him. The trial court denied any award of sanctions or attorney's fees against Mr. Penton's employer, Siemens' Energy and Automation, Inc., or Siemens' insurer, Zurich American Insurance Company. Siemens and Zurich appealed as to the award of any SEB or medical expenses. Mr. Penton cross-appealed as to the denial of SEB for the second period claimed by him, the denial of some of the medical expenses and medical deposition costs claimed by him, and the denial of penalties and attorney's fees. As to Siemens' and Zurich's appeal, we affirm. As to Mr. Penton's cross-appeal, we reverse in part (as to the denied medical expenses and medical deposition costs) and otherwise affirm.

Mr. Penton was employed by Siemens when he suffered an on the job accident. Specifically, he slipped and fell on a bolt on the floor of a Siemens' plant on December 28, 1988.

Mr. Penton suffered a back injury as a result of the fall. Pursuant to physician's instructions, he did not go back to work immediately after his fall. He had not yet returned to work when, about one week later, on January 3, 1989, Siemens shut down the plant (apparently permanently) and discharged all of the plant employees including Mr. Penton. Siemens and Zurich paid Mr. Penton one week of compensation benefits and then terminated the benefits.

Mr. Penton saw Siemens' industrial medicine physicians, Drs. Brian Naccari, Robert Segura and Terry Segura, immediately after the December 27, 1988 accident and for about a week and a half thereafter. Specifically, Mr. Penton saw those doctors on December 27, 1988, December 28, 1988, January 3, 1989. They diagnosed Mr. Penton as suffering from "lumbrosacral and mid to upper thoracic spine strains." Mr. Penton did not see a doctor again until he saw Dr. Terry Segura on October 3, 1989 at which visit he had the same symptoms as at the earlier visits. Mr. Penton explains the lack of doctor visits for over eight months as based on his difficulty in paying as he had been laid-off, had income only from odd jobs and was receiving no compensation benefits. Mr. Penton also explains that he had to travel 140 miles round trip to see Drs. Naccari, Segura and Segura.

About ten days after his October 3, 1989 visit to Dr. Terry Segura, Mr. Penton saw Dr. Hoerner, who ordered an EMG and nerve conduction studies. Those tests were performed by Dr. Burns on October 19, 1989, but were not very helpful in further diagnosing Mr. Penton's condition. In any event, Dr. Hoerner, like the earlier doctors, diagnosed Mr. Penton as suffering from lumbrosacral and thoracic sprains.

Up to this point, that is, from the December 27, 1988 accident and the January 3, 1989 discharge until late October, 1989, Mr. Penton's only employment consisted of odd jobs with his brother's company, a lawn mowing business and some work as a barber. Mr. Penton was unable to accept a number of possible full-time jobs because they were too physically demanding in light of the condition of his back.

Late in October 1989, Mr. Penton moved to South Carolina to accept employment with Metal Leve, Inc. This job paid more than his previous job with Siemens. In South Carolina, Mr. Penton saw Dr. Margalit on *499 October 30, 1990; November 30, 1990; and January 8, 1991. Dr. Margalit ordered an MRI for Mr. Penton, but it showed no significant abnormalities. Dr. Margolit also performed a thermogram on Mr. Penton, and the results were positive, but the trial court found this type of test to be "controversial." Dr. Margalit concluded that Mr. Penton suffered from "a nerve irritation [that was] causing his pain in his back" and ordered physical therapy for Mr. Penton. Upon discharging Mr. Penton on January 8, 1991, Dr. Margalit reported a finding of a 10%-15% partial impairment to his back.

Over a year later, Mr. Penton consulted an arthritis specialist, Dr. Boyd. Mr. Penton saw Dr. Boyd on February 26, 1992; August 26, 1992; September 8, 1992; and October 6, 1992. Mr. Penton sought his consultation because his family had a history of arthritis and, thus, he wondered whether his back pain might be arthritis. Dr. Boyd performed tests and ruled out arthritis. Dr. Boyd referred Mr. Penton to Dr. Parrot who, on October 6, 1992, found him to be neurologically normal but suffering from chronic low back pain secondary to work-related trauma. Dr. Parrot ordered exercise and physical therapy.

Mr. Penton was laid-off in South Carolina by Metal Leve on February 1, 1993 and remained unemployed until he began his employment with Calhoun Gin Company as an assistant manager on June 1, 1993. This job paid more than had his earlier job with Siemens.

Mr. Penton claims that he is entitled to SEB for two periods. First, he claims that he is entitled to SEB for a period of 40 weeks from December 27, 1988, the date of his accident, until October 21, 1989, when he obtained a job with Metal Leve, Inc. in South Carolina. Second, Mr. Penton claims that he is entitled to SEB for the 18 week period from his February 1, 1993 layoff by Metal Leve, Inc. until his June 1, 1993 employment by Calhoun Gin Company. The trial court awarded SEB to Mr. Penton as to the earlier period, but denied him SEB as to the later period. Siemens and Zurich argue that SEB should not have been awarded for the first period. Mr. Penton argues that SEB should have been awarded for the second period as well.

A claimant is entitled to SEB if, as a result of a work-related disability, the claimant is not able to earn at least 90% of his pre-injury wages. Allen v. City of Shreveport, 618 So.2d 386 (La.1993). This means that the claimant is entitled to SEB if, as a result of a work-related injury, the claimant is unable to perform any available job that will pay 90% of the claimant's pre-injury wages. Id. If the employee's former job no longer exists, such as Mr. Penton's former job at Siemens, it is irrelevant that the claimant is not disabled from performing his or her former job. Id.

The initial burden of proof, that the claimant cannot earn at least 90% of his or her pre-injury wages, is upon the claimant. Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1008-1009 (La.1989). If the claimant meets that burden, then the burden of proof shifts to the defendant to show how much the claimant could earn despite the disabling work-related injury. Id. The more the claimant could have earned, the less SEB is due. Id. These determinations by the trial court as to SEB are factual and, in worker's compensation cases, the trial court's findings of fact are subject to the "clearly wrong" or "manifest error" standard of appellate review. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). See also Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882-83 (La.1993) (discussing clearly wrong/manifest error standard); Rosell v. ESCO, 549 So.2d 840 (La.1989) (same).

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Bluebook (online)
646 So. 2d 496, 1994 WL 668102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penton-v-siemens-energy-and-automation-lactapp-1994.