Taylor v. Hanson North America

112 So. 3d 272, 2012 La.App. 1 Cir. 0286, 2013 WL 98759, 2013 La. App. LEXIS 6
CourtLouisiana Court of Appeal
DecidedJanuary 9, 2013
DocketNo. 2012 CA 0286
StatusPublished
Cited by3 cases

This text of 112 So. 3d 272 (Taylor v. Hanson North America) 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
Taylor v. Hanson North America, 112 So. 3d 272, 2012 La.App. 1 Cir. 0286, 2013 WL 98759, 2013 La. App. LEXIS 6 (La. Ct. App. 2013).

Opinion

McDonald, j.

|2In this workers’ compensation dispute, Hanson North America (Hanson), appeals a judgment of the Office of Workers’ Compensation (OWC) in favor of claimant, William Taylor. For the reasons that follow, we affirm,

Mr. Taylor was injured in the course and scope of his employment as a kiln operator on May 19, 1995, when a kiln exploded, blowing the door off the hinges. The door landed on Mr. Taylor and two other workers, injuring Mr. Taylor’s right leg and lower back. After the accident, Mr. Taylor continued to work until January of 1997, when he was no longer able to work, and he began receiving temporary total disability benefits of $323.00 per week.

[274]*274Weekly benefits were terminated after the OWC ruled on March 12, 2008, that Mr. Taylor had received 520 weeks of indemnity benefits effective January 10, 2007, and found that Mr. Taylor had failed to prove entitlement to permanent and total disability benefits, supplemental earnings benefits, or temporary total disability benefits. Mr. Taylor appealed that judgment to this court, which ruled on appeal that there were genuine issues of material fact that required a hearing, reversed the summary judgment in favor of Hanson, and remanded the case for further proceedings. Taylor v. Hanson North America, 08-1944 (La.App. 1 Cir. 5/8/09), 13 So.3d 660.

Mr. Taylor filed a supplemental and amending disputed claim for compensation on July 21, 2010, asserting that he was permanently and totally disabled and entitled to disability benefits for life; that he was incapable of gainful employment due to his physical injuries, functional limitations, age, experience, and education; that he was entitled to vocational rehabilitation services, and that, despite request and amicable demand, he had not been provided adequate and sufficient rehabilitation services; that the medical treatment recommended by his treating physician, a spinal cord stimulator, had been denied; that his medical bill |sand expenses had not been properly and timely paid; and that he was entitled to penalties and attorneys fees.

Mr. Taylor filed a second supplemental and amending disputed claim for compensation on November 1, 2010, asserting that he was entitled to and had been denied vocational rehabilitation, that he was entitled to and had been denied payment of mileage for medical appointments, that he had been denied his choice of physician in the field of neurosurgery and orthopedic surgery, and that he was entitled to penalties and attorneys fees. Hanson answered the first supplemental and amending claim asserting that Mr. Taylor had already received all of the benefits to which he was entitled under the law, and alternatively, disputed the amount of benefits claimed by Mr. Taylor and asserted its right to reimbursement, offsets, and credits.1

After a trial, the OWC ruled in favor of Mr. Taylor, concluding that Mr. Taylor was permanently and totally disabled from the date of judgment, and finding that the spinal cord stimulator was reasonable and medically necessary, ordering that Hanson approve Mr. Taylor’s choice of orthopedic surgeon and neurosurgeon, denying Mr. Taylor further vocational rehabilitation, and assessing Hanson with all costs.

Hanson appealed that judgment and makes the following assignments of error:

1. That the [OWC] erred in finding that a spinal cord stimulator for plaintiff-appellee was reasonable and necessary medical care when both the SMO [second medical opinion] and [OWC] appointed IME testified emphatically that Taylor would not benefit from this treatment.
2. That the [OWC] erred in finding that plaintiff-appellee is entitled to his choice of treating physicians in the area of orthopedic surgery and/or neurosurgery; and
|43. That the [OWC] erred in finding that plaintiff-appellee is permanently and totally disabled as a result of the work-related accident which occurred on May 19, [1995].

Mr. Taylor filed an answer to the appeal, asserting that the OWC erred in [275]*275ruling that the permanent and total disability benefits were awarded only from the date of signing the judgment and, in the alternative, asserts that the OWC erred in ruling on December 3, 2010, that Mr. Taylor was limited in discovery to documents from April 2006, forward.

THE STANDARD OF REVIEW

Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 04-0600, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 86, 88. Factual findings in a workers’ compensation case are subject to the manifest error-clearly wrong standard of review. McCray v. Delta Industries, Inc., 00-1694, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556. Thus, “[if] the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Const., 01-0486, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35; Villar v. Industrial Metal Recyclers, 12-0319, p. 3 (La.App. 1 Cir. 11/2/12), 111 So.3d 372, 375, 2012 WL 5377676.

| .ASSIGNMENT OF ERROR NO. 3

Hanson asserts that the OWC erred in finding that Mr. Taylor is permanently and totally disabled as a result of the work-related accident that occurred on May 19, 1995. Louisiana Revised Statutes 23:1221(2)(c) provides in pertinent part:

[Compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Severio v. J.E. Merit Constructors, Inc., 02-0359, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 465, 469-70.

As set forth in La. R.S.

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Bluebook (online)
112 So. 3d 272, 2012 La.App. 1 Cir. 0286, 2013 WL 98759, 2013 La. App. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-hanson-north-america-lactapp-2013.