Scott v. Lakeview Regional Medical Center

818 So. 2d 217, 2001 La.App. 1 Cir. 0538, 2002 La. App. LEXIS 888, 2002 WL 468043
CourtLouisiana Court of Appeal
DecidedMarch 28, 2002
Docket2001 CA 0538
StatusPublished
Cited by9 cases

This text of 818 So. 2d 217 (Scott v. Lakeview Regional Medical Center) 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
Scott v. Lakeview Regional Medical Center, 818 So. 2d 217, 2001 La.App. 1 Cir. 0538, 2002 La. App. LEXIS 888, 2002 WL 468043 (La. Ct. App. 2002).

Opinion

818 So.2d 217 (2002)

Edward Rene SCOTT
v.
LAKEVIEW REGIONAL MEDICAL CENTER.

No. 2001 CA 0538.

Court of Appeal of Louisiana, First Circuit.

March 28, 2002.
Rehearing Denied May 22, 2002.

*219 James E. Cazalot, Jr., New Orleans, for Claimant-Appellee Edward Rene Scott.

Patrice W. Oppenheim, Metairie, for Employer-Appellant Lakeview Regional Medical Center.

Before: FOIL and PETTIGREW, JJ., and KLINE,[1] J. Pro Tem.

PETTIGREW, Judge.

This workers' compensation action is before us on appeal from a judgment in favor of claimant, Edward Rene Scott, and against his employer, Lakeview Regional Medical Center ("LRMC"). For the following reasons, we reverse.

FACTS

The parties hereto stipulated that on or about August 24, 1995, Edward Rene Scott ("Mr. Scott") was employed by LRMC when he sustained injury to his lower back while assisting other employees lift a patient in the shower. The parties also stipulated that Mr. Scott's average weekly wage prior to his accident was $300.52, which assuming Mr. Scott was totally disabled, gave rise to a weekly compensation rate of $200.36.

There is no dispute LRMC paid Mr. Scott benefits at the rate of $200.36 per month from the beginning of his disability until January 10, 1999. It was further stipulated that as a result of his workplace accident on August 24, 1995, Mr. Scott subsequently underwent two lumbar surgeries that were performed by his treating neurosurgeon, Dr. John Jackson. Mr. Scott underwent removal of an acutely ruptured disc at the L5-S1 disc level and decompression of the S1 nerve root on February 2, 1996. Shortly over a year later, on February 27, 1997, it was necessary to remove the recurrent ruptured disc at L5-S1 and stabilize the spine with a posterior lumbar interbody fusion. It is also undisputed that Mr. Scott reached maximum medical improvement (MMI) regarding his back condition on or about June 11, 1998.

Since October 14, 1998, until the present time, Mr. Scott has been incarcerated as a result of his conviction for possession with intent to distribute 2.5 grams of cocaine. Accordingly, Mr. Scott's benefits were suspended until he established that he had minor children who were dependent upon his benefits for their support.

Following a trial held on October 12, 2000, the workers' compensation judge concluded that Mr. Scott's two dependent children were entitled to receive his Supplemental Earnings Benefit (SEB) payments at the rate of $200.36 per week (or $801.44 a month) from January 10, 1999, when LRMC terminated his benefits, until Mr. Scott received "proper" vocational *220 rehabilitation. From this judgment, LRMC has taken a suspensive appeal.

ASSIGNMENTS OF ERROR

In connection with its appeal in this matter, LRMC sets forth the following assignments of error for review by this court:

1. The Louisiana Department of Labor, Office of Workers' Compensation [OWC] Judge committed legal and manifest error in finding the Claimant proved he was entitled to Supplemental Earnings Benefits because he was unable to earn ninety percent (90%) of his pre-injury wages.
2. The OWC Judge committed legal and manifest error in finding LRMC had not provided adequate vocational rehabilitation counseling to the Claimant during his incarceration.
3. The OWC Judge committed legal and manifest error in finding the Claimant proved he had minor children who were dependent upon his workers' compensation benefits for their support and were therefore entitled to his benefits during his incarceration.
4. The OWC Judge committed legal and manifest error in finding the Claimant had a heart-related injury, which disabled him from working and entitled him to an award of medical expenses.

STANDARD OF REVIEW

Factual findings in a workers' compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. As an appellate court, we cannot set aside the factual findings of the workers' compensation judge unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder's decision to credit a witness's testimony must be given "great deference" by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

DISCUSSION

Award of SEBs

The initial error assigned by LRMC is that the workers' compensation judge erred in finding that Mr. Scott proved he was entitled to SEBs because he was unable to earn 90 percent of his preinjury wages. LRMC points out in its brief that the workers' compensation judge awarded Mr. Scott SEBs at his full rate of compensation, $200.36 per week.

In Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra, the Louisiana Supreme Court opined:

The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. An employee is entitled to receive supplemental earnings benefits (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 *221 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....
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. Actual job placement is not required. The amount of SEBs is based upon the difference between the claimant's pre-injury average monthly wage and the claimant's proven post-injury monthly earning capacity.

Banks, 96-1587 at 8-9, 696 So.2d at 556 (quotation marks and citations omitted).

A copy of the medical records of Dr. John Jackson was introduced as Joint Exhibit 3. In an office note dated June 11, 1998, Dr. Jackson noted that Mr. Scott was progressing well and had been walking two miles a day at a local health club. Despite complaints of being disabled due to a narrowing of the anterior heart ventricle, Dr. Jackson opined that Mr. Scott had reached MMI on that date. Dr. Jackson assigned Mr. Scott a 25 percent permanent partial disability of the body as a whole, and restricted him from straining his back or lifting in excess of 25 pounds. In an office note dated September 24, 1998, Dr.

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Bluebook (online)
818 So. 2d 217, 2001 La.App. 1 Cir. 0538, 2002 La. App. LEXIS 888, 2002 WL 468043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-lakeview-regional-medical-center-lactapp-2002.