Putman v. Commercial Union Insurance

645 So. 2d 1250, 93 La.App. 1 Cir. 2263, 1994 La. App. LEXIS 3182, 1994 WL 670383
CourtLouisiana Court of Appeal
DecidedNovember 10, 1994
DocketNo. 93 CA 2263
StatusPublished
Cited by4 cases

This text of 645 So. 2d 1250 (Putman v. Commercial Union Insurance) 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
Putman v. Commercial Union Insurance, 645 So. 2d 1250, 93 La.App. 1 Cir. 2263, 1994 La. App. LEXIS 3182, 1994 WL 670383 (La. Ct. App. 1994).

Opinion

|2CARTER, Judge.

This is an appeal from a judgment of the Office of Worker’s Compensation.

FACTS

On July 12, 1989, plaintiff, Delores Put-man, was injured during the course and scope of her employment as an Out Reach Worker 1 with Human Development Services (HDS) for the City of Baton Rouge. On the day of the accident, Putman walked out of her office carrying an armload of files and tripped over a chair, causing her to sustain [1252]*1252injuries. As a result of her injuries, Putman missed approximately one week of work, but returned and continued to work until February 12, 1990. Commercial Union Insurance Company (Commercial Union), the worker’s compensation insurer for HDS, paid Putman worker’s compensation benefits through February 5, 1991.

On June 12, 1991, Putman filed a disputed claim for worker’s compensation benefits with the Office of Worker’s Compensation, contending that her benefits had been terminated prematurely and that she was entitled to partial permanent disability benefits and/or supplemental earnings benefits. Commercial Union and HDS contended that Putman was capable of working and earning 90% or more of her pre-injury wages and, thus, was not entitled to further compensation benefits.

On April 8, 1992, the matter was heard by a hearing officer. At the hearing, the parties stipulated that Putman had been injured during the course and scope of her employment on July 12, 1989, and that her average weekly wage was $258.25.

On October 27, 1992, the hearing officer rendered judgment, finding that Putman was entitled to temporary total disability benefits for the month of March, 1991, and supplemental earnings benefits from that time through the date of trial (April 8, 1992) and until Putman is physically able to earn 90% or more of her pre-injury earnings.

|3Commercial Union and HDS appealed from the judgment, assigning as error the hearing officer’s award of supplemental earnings benefits to Putman.

SUPPLEMENTAL EARNINGS BENEFITS

Supplemental earnings benefits (SEB) are addressed in LSA-R.S. 23:1221(3). Like all other provisions of the worker’s compensation law, the provisions governing SEB must be liberally construed in favor of coverage. Daigle v. Sherwin-Williams Company, 545 So.2d 1005,1006 (La.1989). The purpose of SEB is to compensate the injured employee for wage-earning capacity he has lost as a result of an accident. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). The threshold prerequisite to the recovery of SEB is that the employee’s injury results in his inability to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury. Daigle v. Sherwin-Williams Company, 545 So.2d at 1006-07. Thus, the injured employee bears the burden of proving by a preponderance of the evidence that his work-related injury resulted in his inability to earn that amount. Paul v. Gipson, 614 So.2d 1275, 1278 (La.App. 2nd Cir.1993); Moore v. Mason & Dixon Tank Lines, 540 So.2d 525, 528 (La.App. 1st Cir.), writ denied, 541 So.2d 1390 (La.1989).

In determining if an injured employee has made out a prima facie case of entitlement to SEB, 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 Company, 545 So.2d at 1007. The mere fact that the plaintiff has been released to return to work does not automatically disqualify him from receiving SEB. Dyer v. GAB Business Services, 613 So.2d 801, 804 (La.App. 4th Cir.), writ denied, 617 So.2d 939 (La.1993).

Once the employee establishes a pri-ma facie case of entitlement to SEB, the burden shifts to the employer to show that the employee is physically able to perform a certain job and that |4the job was offered to the employee or was available to the employee in his or the employee’s community or reasonable geographic area. Daigle v. Sherwin-Williams Company, 545 So.2d at 1008-09. If the employer meets this burden, then the employee must show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered or available solely as a consequence of substantial pain. LSA-R.S. 23:1221(3)(c)(ii); Paul v. Gipson, 614 So.2d at 1278.

For an appellate court to reverse a trial court’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State, [1253]*1253Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882.

The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Moreover, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882-83. However, where the documents or objective evidence so contradict the witness’s story or the story itself is so internally inconsistent or implausible on its face |5that a reasonable factfinder would not credit the witness’s story, an appellate court may find manifest error or clear wrongness even in a credibility determination. Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989).

Such deference to the findings of a trial court with regard to facts and credibility also applies to worker’s compensation cases. Pollock v. Louisiana Insurance Guaranty Association, 587 So.2d 823, 825 (La.App. 3rd Cir.1991); Stewart v. Ormond Country Club, 542 So.2d 658, 659-60 (La.App. 5th Cir.), writ denied, 544 So.2d 408 (La.1989). See Ducote v. J.A. Jones Construction Company, 471 So.2d 704, 706 (La.1985); Martin v. Riverview Medical Center, 618 So.2d 1014, 1017 (La.App. 1st Cir.), writ denied, 623 So.2d 1333 (La.1993).

In the instant case, Putman testified that, on July 12,1989, she was employed as an Out Reach Worker 1 by HDS. Her duties were clerical in nature and included filing, making copies of documents, answering the telephone, and writing letters. Putman stated that, on the day of the accident, she walked out of her office carrying an armload of files and tripped over a chair, causing her to fall and sustain injuries.

As a result of her injuries, Putman was treated by several physicians. She was initially treated by her family physician, Dr. Donald Batie, who prescribed bed rest and analgesics and, thereafter, referred her for physical therapy. Dr.

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645 So. 2d 1250, 93 La.App. 1 Cir. 2263, 1994 La. App. LEXIS 3182, 1994 WL 670383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/putman-v-commercial-union-insurance-lactapp-1994.