Roberts v. State/Office of Family Support

97 So. 3d 570, 2011 La.App. 4 Cir. 1614, 2012 La. App. LEXIS 945, 2012 WL 2629227
CourtSupreme Court of Louisiana
DecidedJuly 5, 2012
DocketNo. 2011-CA-1614
StatusPublished
Cited by2 cases

This text of 97 So. 3d 570 (Roberts v. State/Office of Family Support) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. State/Office of Family Support, 97 So. 3d 570, 2011 La.App. 4 Cir. 1614, 2012 La. App. LEXIS 945, 2012 WL 2629227 (La. 2012).

Opinion

JOY COSSICH LOBRANO, Judge.

_JjThe claimant, Montrell Roberts, appeals a judgment of the Office of Workers’ Compensation (“OWC”) denying her claim for supplemental earnings benefits (“SEB”), statutory penalties and attorney’s fees. For the reasons that follow, we affirm.

Ms. Roberts fractured her right wrist in a work-related accident on April 25, 20081, while employed as a Social Services Analyst II (“SSA2”) with the State of Louisiana, Department of Social Services, Office of Family Support (“OFS”). As an SSA2, Ms. Roberts served as a case manager, working with clients in various social service programs administered by the state. She was required to operate a firearm and prepare reports, case summaries, correspondence and court documents. In addition to extensive typing and writing, Ms. Roberts had to pull, lift, carry and re-shelve voluminous case files each day.

Following the accident, Ms. Roberts was treated at Ochsner Hospital by Mr. Jack Reid, a certified physician assistant, and Dr. Jefferson Kaye, an orthopedic |2surgeon. Dr. Kaye subsequently ordered Ms. Roberts to undergo a Functional Capacity Examination (“FCE”) on February 13, 2009. On May 7, 2009, Dr. Kaye and Mr. Reid met with Ms. Roberts to review the results of the FCE. Based on the results2, Dr. Kaye imposed permanent work restrictions of no lifting in excess of [572]*572ten pounds (10 lbs.), no writing beyond 24 minutes, and no typing beyond 17 minutes per work day.

Ms. Roberts was also required to obtain a second medical opinion from her employer’s choice of a physician. The OFS selected Dr. Harold Stokes, an orthopedic surgeon, who examined Ms. Roberts on December 18, 2008. Dr. Stokes concluded that Ms. Roberts could return to work as a social worker, but would have difficulty writing for prolonged periods of time and, thus, suggested that she be allowed to dictate her reports. He assigned a ten percent (10%) to fifteen percent (15%) permanent impairment to Ms. Roberts’ right upper extremity.

Based on an average weekly wage of $915.59, the OFS paid Ms. Roberts temporary total disability benefits (“TTD”) of $522.00 per week from May 3, 2008 until April 19, 20093, when she allegedly reached maximum medical improvement and was released to return to duty with some restrictions. Although the OFS claimed that it had arranged to accommodate Ms. Roberts at work within the restrictions to resume her position as a SSA2, Ms. Roberts did not return to work and retired from the work force4.

|3Ms. Roberts filed a Disputed Claim for Compensation in May 2009, seeking SEB, claiming the OFS could not accommodate her work restrictions and, therefore, she was forced to retire because her worker’s compensation benefits had been terminated and she had no source of income.

Following a trial, the workers’ compensation judge dismissed Ms. Robert’s claim, finding she voluntarily removed herself from the work force and was not entitled to SEB. The judge also denied her claim for statutory penalties and attorney’s fees, concluding the OFS acted reasonably in handling her claim.

On appeal, Ms. Roberts argues that the trial court erred in denying her claim for SEB. Specifically, Ms. Roberts contends the trial court erred in determining that the OFS could accommodate her permanent work restrictions and that she “voluntarily” retired.

The purpose of SEB is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793, p. 4 (La.1/9/11), 56 So.3d 170, 174. La. R.S. 23:1221(3)(a) provides that 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. 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. Id., GO-2793 at 5, 56 So.3d at 174. Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, must Improve, 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 her or the employer’s community or reasonable geographic region. Id.; La. R.S. 23:1221(3)(c) (i).

In Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 557, the Louisiana Supreme Court, discussing the meaning of “job [573]*573availability,” held that an employer may discharge its burden of proving “job availability” under La. R.S. 23:1221(3)(c)(i) by establishing, at a minimum, by competent evidence:

(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.

Id., 96-2840, 696 So.2d at 557.

The Court defined a “suitable job” as “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. (Footnote omitted).

This Court has held that, generally, an employee offered light-duty work at the same wage would not be entitled to SEB. Dabney v. Boh Brothers |sConstruction Company, 97-1041, 97-2502 (La.App. 4th Cir.3/11/98), 710 So.2d 1106, 1112 (citation omitted).

“Retirement” occurs for purposes of SEB entitlement when the worker either “withdraws from the work force” or draws old age social security benefits, whichever comes first. Allen v. City of Shreveport, 93-2928 (La.5/23/94), 637 So.2d 123, 126-27. An employee who chooses pension benefits as opposed to returning to work has retired. Id. Moreover, an employee who expresses his intention to both retire, or stop working, and not look for other employment and who makes no effort to find another job has retired within the meaning of La. R.S. 23:1221. Randazzo v. Boh Brothers Construction Company, 2001-1953, at p. 5 (La.App. 4th Cir.3/27/02), 814 So.2d 671, 675 (citation omitted). However, if the injury causes the claimant’s unemployment, the employee is not retired for purposes of limiting benefits. Id. (Citations omitted). Retirement limiting benefits connotes withdrawals based on age or years of service in some type of pension. Id. When the injury and a doctor’s failure to release an employee to return to work cause the employee to decide to stop work or failure to return to work, such a withdrawal from the work force is not voluntary. Id., at 5-6, 814 So.2d at 675 (citation omitted).

Determination of whether an employee has withdrawn from the work force for purposes of SEB is based on many factors, including age; the circumstances of each case control. Mason v. Auto Convoy,

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97 So. 3d 570, 2011 La.App. 4 Cir. 1614, 2012 La. App. LEXIS 945, 2012 WL 2629227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-stateoffice-of-family-support-la-2012.