Powell v. Bewley's Furniture Co.

682 So. 2d 1286, 1996 La. App. LEXIS 2591, 1996 WL 628241
CourtLouisiana Court of Appeal
DecidedOctober 30, 1996
DocketNo. 28794-CA
StatusPublished
Cited by1 cases

This text of 682 So. 2d 1286 (Powell v. Bewley's Furniture Co.) 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
Powell v. Bewley's Furniture Co., 682 So. 2d 1286, 1996 La. App. LEXIS 2591, 1996 WL 628241 (La. Ct. App. 1996).

Opinions

h WILLIAMS, Judge.

In this worker’s compensation action, the defendant, Bewley’s Furniture Company, appeals a worker’s compensation hearing officer’s (“WCHO”) judgment awarding claimant, Bobby H. Powell, supplemental earnings benefits and past due total temporary disability benefits and denying defendant’s request for a credit for the overpayment of benefits. For the following reasons, we affirm in part and reverse in part.

FACTS

The claimant, Bobby Powell, worked for the defendant for several years as a furniture salesman. Defendant paid claimant on a straight commission basis. It is undisputed that on or about January 11, 1992, claimant injured his right knee in an on-the-job accident. Dr. Anglin, claimant’s treating physician performed knee surgery on February 3,1992. Beginning on that date, defendant paid claimant temporary total disability benefits of $241.12 per week. At trial, Powell testified that he periodically attempted to return to work beginning in April 1992, but each time he attempted to work, the pain from his injury would become unbearable and he would have to stop working again after several days. This intermittent work pattern continued throughout the remainder of claimant’s employment by the defendant. Claimant received wages every month from the time of his accident until he left defendant’s employ.

On January 8, 1993, defendant’s company doctor, Dr. Angle, treated claimant and recommended that he return to work without restrictions. However, claimant testified that he continued to suffer pain due to his injury after that date. Subsequently, claimant saw Dr. Waddell, an orthopedist, based on Dr. Angle’s recommendation. Dr. Wad-dell treated claimant for several weeks, and on March 15, 1993, released claimant to return to work for four hours per day for one week, then to full duty thereafter. Defendant terminated claimant’s benefits on March 1221, 1993, based on the insurance adjuster’s discovery that claimant had worked intermittently since April 1992 and based on Dr. Waddell’s release of claimant to return to work. Claimant left the defendant’s employ on March 21,1993.

In March 1994, claimant filed a worker’s compensation claim asserting he was entitled to recover for underpayment of past benefits. Claimant also asserted that he was entitled to supplemental earnings benefits because his knee injury continued to cause an inability to earn wages equal to the amount of his pre-injury wages. Defendant answered claimant’s claim and asserted that it was entitled to recover for the overpayment of benefits. After a hearing, the WCHO entered a judgment awarding claimant past due temporary total disability benefits and supplemental earnings benefits. Defendant appeals.

DISCUSSION

Entitlement to Supplemental Earnings Benefits

Bewley’s contends the WCHO was clearly wrong in finding that the claimant was entitled to supplemental earnings benefits. This contention lacks merit.

The factual findings of a worker’s compensation hearing officer may not be set aside unless said findings are manifestly erroneous or clearly wrong. The appellate court must give great weight to the trier’s factual conclusion, reasonable evaluations of credibility, and reasonable inferences of fact. Allen v. Misco Paper, 27,146 (La.App.2d Cir. 8/23/95), 660 So.2d 175. When there are two permissible views of the evidence, the trier of fact’s choice between the two cannot be manifestly erroneous or clearly wrong. Allen v. Misco Paper, supra.

LSA-R.S. 23:1221(3) sets forth the criteria for the payment of supplemental earnings benefits:

Compensation shall be paid under this Chapter in accordance with the following schedule of payments: ...
|⅞(3) Supplemental earnings benefits.
(a) For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at the time of injury, supplemental earnings benefits equal to sixty-six and two thirds percent of [1288]*1288the difference between the average monthly wages at the time of injury and average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis....

The claimant in a worker’s compensation case must prove his entitlement to supplemental earnings benefits by a preponderance of the evidence. Davis v. Jones Baldwin Music Company, 27,545 (La.App.2d Cir.11/1/95), 662 So.2d 803; Lubom v. L.J. Earnest, Inc., 579 So.2d 1174 (La.App. 2d Cir.1991). To rebut the claimant’s proof, the employer must prove that the claimant is physically able to do work that was available to him in the claimant’s or employer’s reasonable geographic area. LSA-R.S. 23:1221(3)(c)(I); Davis v. Jones Baldwin Music Company, supra.

In the present ease, the hearing officer could have found by a preponderance of the evidence that claimant could not earn ninety percent of his pre-accident wages due to his injury. The claimant testified that a furniture salesman’s job involves moving furniture to show it to customers, a function that he could not do at the time of trial because of his knee injury. Claimant testified that because of his inability to move furniture, he had to quit several jobs in the furniture sales business after he left defendant’s employ, because those jobs required him to move furniture. According to claimant, at the time of trial, he was working at a clearance center showroom because it was the only place he could work as a furniture salesman without being required to move furniture. He asserts that with this type of job, he was unable to earn ninety percent of his pre-injury wages.

Un addition to the testimony concerning the effects of his injury on his job situation, claimant and his sister, Betty Delaney, both testified that at the time of trial, claimant was still in pain due to his injury. Further, leisure activities in which plaintiff could engage prior to his injury were curtailed due to injury-related pain at the time of trial. Finally, claimant presented pay stubs that reflected that the wages he received from the other jobs he obtained after he left defendant’s employ were less than 90 percent of his pre-injury wages.

After this testimony, the burden shifted to the defendant to prove that claimant could earn 90 percent of his pre-injury wages. The primary evidence presented by the defendant to rebut claimant’s evidence was the medical evidence showing that claimant’s treating physicians had released him to return to work. Defendant also asserted that claimant was working thirty-eight to forty-two hours per week as a furniture salesman at the time of trial, and that he has not seen a physician concerning his injury since the treating physicians of record released him to return to work. However, defendant did not present evidence that there were other jobs in claimant’s geographic area in which he could have earned 90 percent or more of his pre-injury wages.

It is clear from the record that two permissible views of the evidence were presented to the trier of fact, and that the WCHO chose to accept the claimant’s evidence. Such a choice is not manifestly erroneous, especially since defendant presented no evidence of other jobs that claimant could have done to earn ninety per cent of his pre-injury wages.

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Bluebook (online)
682 So. 2d 1286, 1996 La. App. LEXIS 2591, 1996 WL 628241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-bewleys-furniture-co-lactapp-1996.