Richard v. Calcasieu Parish School Board

79 So. 3d 359, 2011 La. App. LEXIS 1746, 2011 WL 4579600
Louisiana Court of Appeal·Decided December 28, 2011·No. 11-469·Published·Cited by 2 cases

Opinions

GENOVESE, Judge.

_LJn this workers’ compensation case, employer, Calcasieu Parish School Board (School Board), appeals the judgment of the Office of Workers’ Compensation (OWC) reinstating temporary total disability benefits (TTD) to claimant, Barbara Richard, and awarding her $7,000.00 in attorney fees. Ms. Richard answered the appeal, seeking penalties and additional attorney fees for work necessitated by the employer’s appeal. For the following reasons, we affirm and render.

FACTS AND PROCEDURAL HISTORY

Ms. Richard sustained a work-related injury on January 3, 2003, while employed by the School Board. She was treated conservatively for several years during which the School Board paid her medical benefits and $323.64 a week in TTD. Effective May 1, 2010, the School Board reduced Ms. Richard’s benefits to SEB in the amount of $97.19 a month.

Ms. Richard originally filed a Disputed Claim for Compensation (1008) in 2007, and, relevant to the present appeal, she amended her 1008 in May 2010 when her benefits were reduced to SEB. Although Ms. Richard listed several other issues in dispute, at the trial on December 8, 2010, the parties stipulated that the only issues to be decided were the appropriateness of the School Board’s reduction of workers’ compensation benefits from TTD to SEB and whether said reduction warranted an award of penalties and attorney fees. The workers’ compensation judge (WCJ) found that the School Board failed to meet its burden of proof relative to its entitlement to a reduction in benefits from TTD to SEB. Thus, the WCJ signed a judgment on February 21, 2011, restoring Ms. Richards’ benefits to TTD status and awarding her attorney fees of $7,000.00. It is from this judgment that [2the School Board ap[361] peals, and Ms. Richard answers the appeal seeking a penalty award and additional attorney fees for work done on appeal.

ISSUES

We must decide whether the WCJ erred (1) in finding that the School Board failed to meet its burden of proof in holding that TTD benefits be reinstated, and (2) in awarding Ms. Richard attorney fees.

LAW AND DISCUSSION

In workers’ compensation cases, the factual findings of the trial court are subject to the manifest error standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the standard, the appellate court must not determine whether the trier of fact’s conclusion was right or wrong, but that it was reasonable. Freeman, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous. Stobart, 617 So.2d at 882. Therefore, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Richard v. Vermilion Hosp., 10-385, pp. 3-4 (La.App. 3 Cir. 6/9/10), 41 So.3d 1219, 1223, writ denied, 10-1611 (La.10/8/10), 46 So.3d. 1269 (quoting Landry v. Furniture Ctr., 05-643, pp. 5-6 (La.App. 3 Cir. 1/11/06), 920 So.2d 304, 309, writ denied, 06-358 (La.4/28/06), 927 So.2d 290). Additionally, “[t]he decision to impose penalties and attorney fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review.” Weaver v. S. Erectors, Inc. of Florida, 10-783, p. 13 (La.App. 3 Cir. 12/8/10), 53 So.3d 547, 555 (citing Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181).

IsReduction in Benefits to SEB

Pursuant to La.R.S. 23:1221(3)(a),1 an employee is entitled to receive SEB if the employee sustains a work-related injury that results in an inability to earn ninety percent or more of his/her average pre-injury wage. The landmark decision on the application of this statutory provision is Banks v. Indus. Roofing and Sheet Metal Works, Inc., 96-2840, pp. 8-9 (La.7/1/97), 696 So.2d 551, 556 (emphasis added), wherein our supreme court opined as follows:

Initially, the employee bears the burden of proving, by a preponderance of the [362] evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Freeman, 93-1530 at p. 7, 630 So.2d at 739. “Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989).
Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, must 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 employer’s community or reasonable geographic region. LA.REV. STAT.ANN. § 23:1221(3)(c)(i) (West Supp.1997); Daigle, 545 So.2d at 1009. Actual job placement is not required. Romero v. Grey Wolf Drilling Co., 594 So.2d 1008, 1014-15 (La.App. 3d Cir.1992).

In Banks, our supreme court succinctly set forth the requisite evidence for an employer to fulfill its burden of proving job availability, stating as follows:

|4(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.
By “suitable job,” we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.

Id. at 557 (footnote omitted). Moreover, this court has added the additional requirement that the vocational rehabilitation consultant obtain the approval for the identified job from the employee’s treating physician. Chelette v. Riverwood Int’l USA, Inc., 02-1347 (La.App. 3 Cir. 4/30/03), 843 So.2d 1245, rev’d in part on other grounds, 03-1483 (La.10/17/03), 858 So.2d 412.

In the instant matter, the WCJ found that the School Board failed to meet its burden of proof as required by La.R.S. 23:1221(3)(a), Banks, and Chelette. We find no manifest error in this determination.

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Richard v. Calcasieu Parish School Board, 79 So. 3d 359, 2011 La. App. LEXIS 1746, 2011 WL 4579600 (La. Ct. App. 2011).

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