Smith v. Gaylord Container Corp.

777 So. 2d 608, 2000 La. App. LEXIS 3561, 2000 WL 1871714
CourtLouisiana Court of Appeal
DecidedDecember 22, 2000
DocketNo. 99 CA 2340
StatusPublished

This text of 777 So. 2d 608 (Smith v. Gaylord Container Corp.) 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
Smith v. Gaylord Container Corp., 777 So. 2d 608, 2000 La. App. LEXIS 3561, 2000 WL 1871714 (La. Ct. App. 2000).

Opinion

| ¡.PARRO, J.

In this workers’ compensation case, Gaylord Container Corporation (Gaylord) and its insurer, Continental Casualty Company (CCC), appeal a judgment in favor of Gaylord’s former employee, Sylvia J. Smith, who injured her left knee at work. The judgment ordered Gaylord and CCC to pay for continuing treatment by Ms. Smith’s orthopedist and to reinstate temporary total disability benefits from their date of termination until Ms. Smith is released by her orthopedist. The judgment also imposed $7500 in penalties and $5000 [611]*611in attorney fees against the defendants. For the following reasons, we affirm in part, reverse and render in part, and remand.

BACKGROUND

Ms. Smith had been working for Gaylord for about six years when she injured her left knee at work stepping off a forklift truck on February 24, 1996. After an extended period of physical therapy, an orthopedist performed arthroscopy on her knee on February 13, 1997. Additional physical therapy did not completely resolve the problem, so on September 8, 1997, Ms. Smith underwent posterior cruciate ligament reconstruction surgery. By May 1998, an orthopedist determined in an independent medical examination that Ms. Smith could return to work with some limitations, and her benefits were discontinued. She filed a disputed claim for compensation in August 1998. After a hearing in April 1999, the workers’ compensation judge ordered Gaylord and CCC to reinstate her temporary total disability benefits, retroactive to the date when they were discontinued, and to continue those benefits until she was released from her orthopedist’s care. The judgment also imposed penalties and attorney fees.

In this appeal, Gaylord and CCC contend the trial court erred in reinstating temporary total disability benefits, because Ms. Smith admitted at trial that she could handle a cashier’s position. They also claim she is not entitled to supplemental earnings benefits, because she held a light-duty job with Gaylord making her same wages, from which she was terminated due to absenteeism. With reference to the penalties and attorney fees, Gaylord and CCC argue they had good reason to terminate Ms. Smith’s ^benefits and were not arbitrary and capricious. They further claim the trial court erred in imposing a penalty greater than the statutory maximum.

STANDARD OF REVIEW

Factual findings in a workers’ compensation case, such as whether a claimant is entitled to temporary total disability benefits, are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. Under this two-part test, the appellate court must determine from the record whether there is a reasonable factual basis for the finding and whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and render judgment applying the correct law. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735; Oubre v. Jacobs Engineering Group, 98-1129 (La.App. 1st Cir.5/14/99), 739 So.2d 235, 237.

TEMPORARY TOTAL DISABILITY BENEFITS AWARD

The workers’ compensation court awarded Ms. Smith retroactive reinstatement of temporary total disability benefits and continued payment of those benefits until her orthopedist releases her from treatment. Under this judgment, Ms. Smith’s indemnity benefits, which began in February 1996, and were discontinued about May 1998, would be reinstated and paid for some indefinite period.

At the time of Ms. Smith’s injury, Louisiana Revised Statute 23:1221(l)(d) provided:2

[612]*612An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has | ¿improved to the point that continued, regular treatment by a physician is not required, or six months after the injury, whichever first occurs. If the claimant contends that his disabil-. ity is of a temporary nature, but extends beyond this six-month period, he must submit a claim for extension of the period of temporary total disability under R.S. 23:1310.3. (emphasis added).

The clear and unambiguous terms of this statute provide that the initial award of benefits is limited to the period of six months after the date of the injury or until the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made, and the employee’s physical condition has reached maximum medical improvement, whichever occurs first. Hughes v. Carroll Timber Co., 96-0031 (La App. 1st Cir. 10/1/96), 694 So.2d 331, 335. Therefore, the initial award will be for, at most, six months after the date of injury. Hughes, 694 So.2d at 335. If the employee contends that her disability is of a temporary nature, but extends beyond this six-month period, she must submit a claim for extension of the period of temporary total disability under Louisiana Revised Statute 23:1310.3. LSA-R.S. 23:1221(1)(d); Parfait v. Gulf Island Fabrication, Inc., 97-2104 (La.App. 1st Cir.1/6/99), 733 So.2d 11, 19.

In this case, Ms. Smith was injured in 1996 and temporary total disability benefits were paid until mid-1998. The record does not indicate that Ms. Smith filed for an extension of the period of temporary total disability, as required by the applicable statute. Therefore, the initial award of temporary total disability benefits should have ceased after a period of six months from the date of the injury. The trial court erred in holding that Ms. Smith was entitled to additional temporary total disability benefits. Because this is an error of law, this court must review the record de novo to determine whether Ms. Smith is entitled to any benefits under the law.

EVIDENCE

Ms. Smith testified at trial. Anita Kocke, the medical case manager who handled Ms. Smith’s claim for CCC from mid-1997, also testified. Ms. Smith’s medical records, physicians’ reports, CCC’s file activities report, and a job function evaluation form were introduced and admitted into evidence. An investigator hired by CCC, Tracey Knight, |Balso testified. In connection with his'testimony, a video tape of Ms. Smith was admitted into evidence.

Ms. Smith testified that she was a high school graduate. Before working for Gay-lord, she had worked as a waitress, as a cashier at a small gas station convenience store, and as a cashier and stock clerk. All of these jobs paid minimum wage or less. At the time of her accident, she was working forty hours each week, plus frequent overtime, making $11.96 per hour as a bander operator for Gaylord. In that position, she worked at a banding machine, running stacks of flattened corrugated cardboard boxes along a conveyor belt and operating the mechanism that banded them with plastic straps. She had to step up and down on the conveyors for each load and banded between 20 to 30 loads per hour.

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777 So. 2d 608, 2000 La. App. LEXIS 3561, 2000 WL 1871714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-gaylord-container-corp-lactapp-2000.