Short v. Allen Johnson Builders, Inc.

847 So. 2d 690, 2002 La.App. 3 Cir. 1454, 2003 La. App. LEXIS 1374, 2003 WL 21073060
CourtLouisiana Court of Appeal
DecidedMay 14, 2003
DocketNo. 02-1454
StatusPublished
Cited by1 cases

This text of 847 So. 2d 690 (Short v. Allen Johnson Builders, Inc.) 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
Short v. Allen Johnson Builders, Inc., 847 So. 2d 690, 2002 La.App. 3 Cir. 1454, 2003 La. App. LEXIS 1374, 2003 WL 21073060 (La. Ct. App. 2003).

Opinions

|, PICKETT, Judge.

FACTS

Kenneth R. Short sustained an injury to his left knee on July 27, 2000, while in the course and scope of his employment with Allen Johnson Builders, Inc. Immediately following the accident, Mr. Short was seen by Dr. C. Darien Slaughter, a general practitioner, who recommended therapy and anti-inflammatory medication. When Mr. Short experienced no relief, an MRI was performed, which revealed a tear of the medial meniscus. Dr. Slaughter referred him to Dr. Terry Texada, an orthopedic surgeon. Dr. Texada performed an arthroscopic procedure on Mr. Short’s left knee on September 27, 2000. Mr. Short continued to experience pain in his left knee, and Dr. Texada recommended that Mr. Short undergo a total knee replacement. Mr. Short sought a second medical opinion from Dr. Lee Leonard, an orthopedist. Dr. Leonard examined the claimant on January 15, 2001, and thereafter issued a report wherein he agreed that Mr. Short needed total knee replacement. After receiving Dr. Leonard’s report, Dr. Texada scheduled the knee replacement surgery. Gary Williams, the claims adjuster for Louisiana United Businesses Association Self-Insurers Fund (LUBA), the employer’s insurer, canceled the surgery, however, and sought a third medical opinion from Dr. John P. Sweeney.

Dr. Sweeney, an orthopedic surgeon, examined the claimant on March 7, 2001. Dr. Sweeney disagreed with Dr. Texada’s and Dr. Leonard’s recommendations. He believed Mr. Short’s condition was primarily related to his underlying degenerative knee arthritis. He did not feel a total knee replacement was appropriate, but instead recommended conservative treatment consisting of non-steroidal anti-inflammatory medications and limitations on long-distance walking, climbing and other athletic activities. He further noted that the claimant was at maximum medical improvement | ¿without a ratable impairment to his knee related to the July 27, 2000 job injury. Although the employer paid Mr. Short’s medical expenses and indemnity benefits, it chose not to authorize knee replacement surgery based on Dr. Sweeney’s medical opinion. Allegedly, the employer did not receive Dr. Leonard’s report, which agreed with Dr. Texada’s recommendations for surgery, until after Dr. Sweeney’s report was rendered.

On May 2, 2001, the employer requested an independent medical examination (IME) on Mr. Short. The Office of Workers’ Compensation appointed Dr. Vanda Davidson, an orthopaedic surgeon, to perform the IME. Following an examination of the claimant and a review of Drs. Slaughter’s, Texada’s, and Sweeney’s records, Dr. Davidson issued a report on July 9, 2001, wherein he agreed with Dr. Texa-da’s recommendation for total knee replacement surgery. On August 16, 2001, the employer authorized the surgery. Mr. Short had total knee replacement surgery on September 26, 2001.

[693]*693Mr. Short had been receiving temporary total disability benefits at a rate of $884.00 per week. Subsequently, his disability benefits were converted to supplemental earnings benefits (SEBs). In April, 2002, Dr. Texada rendered a report concerning Mr. Short’s condition wherein he reported that the claimant was at maximum medical improvement and could return to limited-duty work with some temporary physical restrictions. The claimant met with Buster Fontenot, a vocational rehabilitation counselor, and discussed with him his ability to return to work. He also talked to the defendant employer. The employer was aware the claimant had relocated to Butte Larose following the accident. The defendant-employer advised Mr. Short it had a job available for him in Alexandria at his regular hours and rate of I -¡pay with the modified duties approved by his treating surgeon. The position was available on May 15, 2002. When Mr. Short did not accept the position, his SEBs were terminated effective that date. Mr. Short ultimately acquired employment on his own in his geographical area.

Mr. Short brought a claim against his employer on several issues, including the failure to timely authorize knee replacement surgery and for penalties and attorney fees. The workers’ compensation judge held the following: 1) the claimant’s entitlement to SEBs ended on May 15, 2002; 2) the claimant was awarded penalties in the amount of $4,000.00 for nonpayment and untimely payment of indemnity benefits; 3) attorney fees were awarded in the amount of $6,000.00; and 4) the defendant was ordered to pay the claimant’s indemnity benefits for August 24, 2000, in the amount of $54.86. The workers’ compensation judge denied Mr. Short’s claim for penalties and attorney fees for the employer’s delay in authorizing knee surgery. It is from this judgment that the claimant appeals.

ASSIGNMENTS OF ERROR

The claimant sets forth three assignments of error:

1) Because the basic, outcome-determinative facts were not disputed, did the hearing officer err, as a matter of law, in terminating SEB[s]?
2) Because the basic, outcome-determinative facts were not disputed, did the hearing officer err, as a matter of law, in refusing to award indemnity benefits for August 12 and 13,2000?
3) Because the basic, outcome-determinative facts were not disputed, did the hearing officer err, as a matter of law, in concluding that defendant’s delay in authorizing total knee replacement surgery until August 16, 2001 was reasonable?

\ ¿DISCUSSION

In his first assignment of error, the claimant contends the workers’ compensation judge erred in terminating his supplemental earnings benefits. The workers’ compensation judge ruled that the claimant’s SEBs were terminated effective May 15, 2002, the day a position was made available to him with his former employer at his regular hours and rate of pay with the modified duties that were approved by his treating physician.

The claimant argues that the defendant-employer failed to prove that a reasonable job position was offered to him within his own reasonable geographic region that would pay more than ninety (90%) percent of his pre-accident wages. The appellee argues the appellant failed to bear the initial burden of proving that he is unable to earn at least ninety (90%) percent of his pre-accident wages.

La.R.S. 23:1221(3)(a) provides, in part:

[694]*694For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds per cent of the difference between the average monthly wages at time of injury and average monthly wages earned or 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 as that in which the employee was customarily engaged when injured and whether or not an 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.

In Banks v. Industrial Roofing & Sheet Metal Works, Inc. 96-2840, pp. 8-9 (La.7/1/97), 696 So.2d 551, 556, the supreme court stated as follows:

“The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993).

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Bluebook (online)
847 So. 2d 690, 2002 La.App. 3 Cir. 1454, 2003 La. App. LEXIS 1374, 2003 WL 21073060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/short-v-allen-johnson-builders-inc-lactapp-2003.