Poissenot v. St. Bernard Parish Sheriff's Office

56 So. 3d 170, 2011 La. LEXIS 17, 2011 WL 150225
Supreme Court of Louisiana·Decided January 9, 2011·No. No. 2009-C-2793·Published·Cited by 79 cases

Opinion

VICTORY, J.*

hln this workers’ compensation case, the workers’ compensation judge (“WCJ”) awarded claimant supplemental earnings benefits (“SEBs”), penalties, and attorney fees, finding the employer’s failure to pay benefits arbitrary and capricious. The court of appeal affirmed. We granted cer-tiorari to determine whether the lower courts used the correct standard in determining the claimant was entitled to SEBs. For the reasons that follow, we reverse the judgment awarding claimant SEBs, penalties, and attorney fees, and render judgment in favor of the employer.

FACTS AND PROCEDURAL HISTORY

Emile Poissenot (“Poissenot”) was an employee of the St. Bernard Parish Sher[172] iffs Office (“SBPSO”) working in a juvenile detention center as a deputy sheriff. On September 18, 2004, Poissenot fractured the small finger on his right hand while attempting to subdue a prisoner. That same day, he was treated at Tulane University Hospital, where he underwent a closed reduction and pinning of the fracture.1 He was released from the hospital on September 20, 2010 with pain medication.

12After his initial treatment, Poissenot continued treatment with Dr. Eric George, an orthopaedic surgeon specializing in surgery of the hand and upper extremities. Under Dr. George’s care, he underwent two additional outpatient surgical procedures on the same finger. The first surgery, on October 8, 2004, was to remove the retained hardware from the initial surgery, and to insert a buttress plate on the bone of the little finger to properly realign it. On October 18, 2004, Dr. George removed the stitches, placed him in a cast for two weeks, and released him to light duty work. On December 1, 2004, Dr. George released Poissenot to return to full work. On December 31, 2004, Dr. George performed another surgery to remove the hardware to free the tendons for better movement. He was released from formal therapy on February 17, 2005. Poissenot was ultimately diagnosed as having a permanent partial disability of 19% of the right hand and 17% of the right upper extremity.2 In June 2005, he voluntarily took a function capacity exam (“FCE”) which concluded he could perform medium level work activity. Significant deficits listed were “decreased grip of right upper extremity,” “decreased ROM of right 4th and 5th MCP, PIP, and DIP,”3 and “pain with pressure and palpation of hand.” The FCE documented Poissenot’s reported pain at a level two out of ten, with ten being the highest pain.

Poissenot returned to work after the accident with some accommodation as a deputy at the same juvenile facility.4 He remained employed with the SBPSO until 1 ^September 2005, when he was furloughed, along with every other juvenile detention center employee, as a result of Hurricane Katrina. In April 2006, he filed a Disputed Claim for Compensation with the Office of Worker’s Compensation.

After a trial on the merits, the WCJ awarded him SEBs under La. R.S. [173]*17323:1221(3)(a),5 finding that, due to the injury, he was unable to earn 90% of the wages he was earning at the time of the injury. In so holding, the WCJ relied on “one | situation recognized by the courts in which SEB is due ... when the injured employee cannot perform his past job and there is no other proof of employability,” which the WCJ found was also the case here. The WCJ found “there is no question Poissenot cannot return to work as a deputy sheriff without significant accommodation [and] [t]hus far no other parish has been willing to make those accommodations.” Holding that “no earning capacity [was] established at the time of trial,” the WCJ calculated benefits based upon “zero earning capacity.” Further, because SBPSO offered no vocational rehabilitation post termination or further employment at a different position, the WCJ awarded Poissenot penalties and attorney fees finding this failure arbitrary and capricious. SBPSO appealed and the Fourth Circuit Court of Appeal affirmed the judgment holding, “Poissenot has effectively demonstrated that he cannot perform the same type of work that he was performing prior to the accident.” Poissenot v. St. Bernard Parish Sheriffs Office, 09-636 (La.App. 4 Cir. 11/24/09), 26 So.3d 829, 834. We granted the SBPSO’s writ application, which asserted (1) that the court of appeal used an incorrect standard in determining Poissenot was entitled to SEBs, and (2) that the WCJ committed manifest error in holding Poissenot met his initial burden of proof that his injury resulted in his inability to earn 90% of his pre-accident wages, and, in awarding Poissenot penalties and attorney fees. Poissenot v. St. Bernard [174] Parish Sheriffs Office, 09-2793 (La.4/23/10), 32 So.3d 809.

DISCUSSION

“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his | .inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, 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 the employee’s community or reasonable geographic location.6 La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.

Free access — add to your briefcase to read the full text and ask questions with AI

Poissenot v. St. Bernard Parish Sheriff's Office, 56 So. 3d 170, 2011 La. LEXIS 17, 2011 WL 150225 (La. 2011).

56 So. 3d 170 (Poissenot v. St. Bernard Parish Sheriff's Office) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Mark Shubert v. City of New Orleans
Louisiana Court of Appeal, 2025
Floyd Safford v. New Orleans Fire Department
Louisiana Court of Appeal, 2024
Keith L. Young v. Smitty's Supply, Inc.
Louisiana Court of Appeal, 2023
Edward Fobbs v. CompuCom Systems, Inc.
Louisiana Court of Appeal, 2023
Ruver Moya Versus Michael Lucas
Louisiana Court of Appeal, 2021
Burnett v. Vill. of Estherwood
270 So. 3d 853 (Louisiana Court of Appeal, 2019)
Nero v. Allied Waste Servs.
265 So. 3d 1129 (Louisiana Court of Appeal, 2019)
SR v. St. Tammany Parish Hosp.
267 So. 3d 158 (Louisiana Court of Appeal, 2018)
Jackson v. Family Dollar Stores of La. Inc.
258 So. 3d 165 (Louisiana Court of Appeal, 2018)
Burnett v. Full Force Staffing, LLC
257 So. 3d 835 (Louisiana Court of Appeal, 2018)
Turner v. Chi. Bridge & Iron Co.
251 So. 3d 615 (Louisiana Court of Appeal, 2018)
Adams v. Ga. Gulf Lake Charles, LLC
249 So. 3d 1066 (Louisiana Court of Appeal, 2018)
Hodges v. Golden Nugget Lake Charles, LLC
242 So. 3d 654 (Louisiana Court of Appeal, 2018)
Ziegler v. Slidell Mem'l Hosp.
236 So. 3d 565 (Louisiana Court of Appeal, 2017)
Tassin v. Touro Infirmary
222 So. 3d 212 (Louisiana Court of Appeal, 2017)
Thibodaux v. Grand Isle Shipyard, Inc.
207 So. 3d 459 (Louisiana Court of Appeal, 2016)