Smith v. Hamp Enterprises, Inc.

673 So. 2d 267, 95 La.App. 4 Cir. 2343, 1996 La. App. LEXIS 648, 1996 WL 189585
CourtLouisiana Court of Appeal
DecidedApril 17, 1996
Docket95-CA-2343
StatusPublished
Cited by6 cases

This text of 673 So. 2d 267 (Smith v. Hamp Enterprises, 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
Smith v. Hamp Enterprises, Inc., 673 So. 2d 267, 95 La.App. 4 Cir. 2343, 1996 La. App. LEXIS 648, 1996 WL 189585 (La. Ct. App. 1996).

Opinion

673 So.2d 267 (1996)

Tyrone SMITH
v.
HAMP ENTERPRISES, INC.

No. 95-CA-2343.

Court of Appeal of Louisiana, Fourth Circuit.

April 17, 1996.

*268 Wayne H. Carlton, Jr., Bendana, Carlton & Sharp, New Orleans, for Appellee.

Denis Paul Juge, Juge, Napolitano, Leyva & Guilbeau, Metairie, for Appellant.

Before BYRNES, WALTZER and LANDRIEU, JJ.

BYRNES, Judge.

Plaintiff, Tyrone Smith, sustained a superficial cut to his left knee on broken glass on October 12, 1993, while in the course and scope of his employment with Hamp Enterprises. He was taken to American Medical International Occupational Health Center ("AMI") where the wound was sutured. On October 14, Dr. Tamimie of AMI released Smith to modified work with restrictions of no stair climbing, and no frequent bending or squatting. On October 19, 1993, he was discharged by AMI with no work restrictions, whereupon he returned to work.

On December 23, 1993, he returned to AMI complaining of problems with his knees. He was seen by Dr. Axelrod who released him to return to his regular work duties. Smith returned on January 13, 1994 at which time he was placed on disabled status. On January 19, 1994 he was released to regular work duties and was discharged. He was laid off during this week of disability.

On January 5, 1994 Smith was examined by Dr. Linder who recommended and scheduled a scar revision for January 12, 1994. Dr. Linder recommended the scar revision because the scar was raised and Smith's complaints of pain indicated the possibility of glass fragments remaining under the scar after the initial injury. A scar revision could produce a flat scar less susceptible to abrasion while affording an opportunity to remove glass fragments. The scar revision was not performed as scheduled because the *269 claims adjuster requested a second opinion pursuant to which Smith was examined by Dr. Dupin on January 13, 1994. Dr. Dupin recommended against a surgical revision. Dr. Dupin felt that an elastic protector would be sufficient to protect the scar from abrasion and would not entail any of the risks of a second surgery. Subsequently the claims adjuster changed her mind and approved the revision surgery. Dr. Linder reexamined Smith on May 18, 1994 and determined to proceed with the scar revision. Dr. Linder performed the surgery on May 18, 1994 and released Smith on August 8, 1994 without any restrictions.

Based on Dr. Axelrod's report the trial court found that Smith was temporarily, totally disabled from January 13, 1994 until January 19, 1994 and awarded temporary total disability benefits accordingly. It was the opinion of Dr. Linder that Smith was able to work without restriction between January 5, 1994 and June 10, 1994. We cannot say that the trial court was manifestly erroneous in basing its finding on reasonable inferences to be derived from Dr. Axelrod's report in preference to the deposition testimony of Dr. Linder.

The trial court found that Smith failed to prove by clear and convincing evidence that he was unable to engage in any employment or self-employment between January 19, 1994 and June 10, 1994. Therefore, the trial court did not award Smith temporary total disability benefits for that period of time. Smith does not contest this finding on appeal.

The major issue of this appeal is the award by the trial court of Supplemental Earnings Benefits for the period beginning January 13, 1994 and ending June 10, 1994 based on findings that Smith was partially disabled and unable to earn 90% of his wages for that period. The burden of proof in such situations was described by this Court in Herty v. City of New Orleans, 94-1960, p. 5 (La.App. 4 Cir. 4/13/95), 654 So.2d 785, 788: Keeping in mind that the worker's compensation law is to be liberally construed in favor of coverage, claimant has the initial burden of showing that the work-related accident results in an inability to earn at least 90 percent of his former wages. Smith v. Louisiana Dept. of Corrections, 93-1305 (La. 2/28/94), 633 So.2d 129. Once the employee's burden is met, the burden of proof then shifts to the employer who must show that the claimant is physically able to perform a certain job and that job was offered to the employee or that job was available to the employee in the employer's community or reasonable geographic region. Id.

See also: Adams v. City of Shreveport, 27,284, p. 2 (La.App. 2 Cir. 8/23/95), 660 So.2d 127, 128, writ not considered, 95-2433 (La. 12/8/95), 664 So.2d 417.

Thus, in determining eligibility for Supplemental Earnings Benefits, the burden initially is on Smith to show that he is unable to earn wages equal to ninety percent or more of the wages he earned before the accident. Smith v. Louisiana Dept. of Corrections, 93-1305, (La. 2/28/94); 633 So.2d 129, 132.[1] The trial court should take into account all those factors which might bear on an employee's ability to earn a wage. Id.

As the hearing officer found that Smith had failed to prove that he was unable to engage in any employment or self-employment between January 19, 1994 and June 10, 1994, he is presumed to be able to find some kind of employment within the limitations of his injury. Therefore, Smith has the initial burden of proving that such work as he can obtain will not enable him to earn at least 90% of his former wages. Id.

The hearing officer failed to apply this burden properly. The hearing officer held that because Smith was unemployed at the time of the trial, the burden was on Hamp to prove the availability of suitable *270 employment that would provide Smith with at least 90% of his former wages. This was error, and inconsistent with the prior finding of the hearing officer that Smith failed to prove that he could not work, because the burden of proof does not shift to Hamp's until after Smith bears the initial burden of putting on a prima facie case of lack of "90%" employment which he failed to do. Id.; Herty, supra. The hearing officer relied on Hebert v. Grey Wolf Drilling Co., Inc., 611 So.2d 674, 677 (La.App. 3 Cir.1992). To the extent that Hebert and other cases like it conflict with the law of this circuit as expressed in Herty and the law as expressed by the Louisiana Supreme Court in Smith we shall not follow them. To do otherwise would provide a claimant with a strong incentive to remain unnecessarily unemployed. In saying this we recognize that the more obviously and severely disabling an injury is, the less extrinsic evidence should be required to establish an initial prima facie case of entitlement to Supplemental Earnings Benefits.

In this regard, Smith testified that he made no attempt to look for other employment. Smith injured his left knee again after the accident that is the subject of this suit. He was asked if he mentioned the injury sub judice when the doctor examined him in connection with the subsequent accident. He responded: "No, I didn't because it wasn't a big problem." Smith stated that at the time he was laid off his job "was basically a whole lot of heavy lifting ..." When asked by counsel for Hamp if doing heavy lifting bothered him he stated unequivocally: "No, that didn't bother me." The hearing officer, apparently in an effort to be sure he had clearly understood Smith's statement about heavy lifting, also asked Smith if he felt he could do heavy lifting, to which Smith responded affirmatively. Smith admitted that he could have continued at his job had he not been laid off.

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Bluebook (online)
673 So. 2d 267, 95 La.App. 4 Cir. 2343, 1996 La. App. LEXIS 648, 1996 WL 189585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-hamp-enterprises-inc-lactapp-1996.