STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
05-478
TINA PALMER
VERSUS
ALLIANCE COMPRESSORS
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02 PARISH OF RAPIDES, NO. 03-05871 HONORABLE JAMES L. BRADDOCK WORKERS’ COMPENSATION JUDGE
J. DAVID PAINTER JUDGE
Court composed of Glenn B. Gremillion, J. David Painter, and James T. Genovese, Judges.
AFFIRMED.
Mark A. Watson Post Office Box 1711 Alexandria, LA 71309 Counsel for Defendant-Appellee: Alliance Compressors
Joe Payne Williams Post Office Box 15 Natchitoches, LA 71458-0015 Counsel for Plaintiff-Appellant: Tina Palmer PAINTER, Judge.
In this workers’ compensation case, Plaintiff, Tina Palmer (“Palmer”), appeals
the judgment of the Workers’ Compensation Judge (“WCJ”) denying her claim for
supplemental earnings benefits (“SEB”), penalties, and attorney fees. For the
following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties stipulated that Palmer was injured1 on August 21, 2002, in the
course and scope of her employment with Alliance Compressors (“Alliance”) and that
she was treated by an orthopaedist, Dr. John P. Sandifer, and allowed to return to
work in a light duty position that same day. The parties further stipulated that Palmer
lost no time from work as a result of her injuries and that Alliance accommodated the
light duty restrictions. At the time of her accident, Palmer had an average weekly
wage of three hundred eighty-seven dollars and sixty cents ($387.60). On December
2, 2002, Palmer received a raise which made her average weekly wage four hundred
three dollars and twenty cents ($403.20).
Palmer continued to work for Alliance until she was terminated on December
11, 2002 for cause. The parties additionally stipulated that the termination was for
cause and completely unrelated to her job-related accident and/or injuries sustained
therein. The stipulation included an explanation that Palmer unsuccessfully
attempted to conceal a violation of the company’s attendance policy and knew that
the violation of the attendance policy alone could result in her termination. The
stipulation went on to include a statement that the parties knew of no reason why
Palmer could not still be employed by Alliance at a weekly wage equal to or higher
than her pre-accident average weekly wage but for the “for cause” termination.
1 Palmer developed carpal tunnel syndrome in her left wrist.
1 Reasoning that it would be totally contrary to the public purpose and policy of
the workers’ compensation law to allow an employee to violate company policies
after being provided with a job that accommodates the employee’s restriction and, in
effect, hold the employer hostage to pay benefits, the WCJ denied Palmer’s claims for
SEB, penalties, and attorney fees. For the reasons that follow, we affirm the decision
of the WCJ.
DISCUSSION
The sole issue before this court is whether or not Palmer was entitled to SEB
after December 11, 2002. Palmer contends that regardless of the reasons for her
firing, she is still restricted to light duty work and is entitled to SEB, with an earning
capacity of five dollars and fifteen cents ($5.15) per hour for forty hours of work per
week. Alliance, on the other hand, contends that as a result of Palmer’s “for cause”
termination, it is no longer responsible for any continuing indemnity benefits,
including but not limited to SEB, after December 11, 2002.
We first note that the determination of whether an employee is entitled to SEB
is necessarily a facts and circumstances inquiry in which courts must be mindful of
the jurisprudential tenet that workers’ compensation law is to be construed liberally
in favor of finding coverage. Manpower Temporary Services v. Lemoine, 99-636
(La.App. 3 Cir. 10/20/99), 747 So.2d 153, citing Daigle v. Sherwin-Williams Co., 545
So.2d 1005 (La.1989). Accordingly, we may not set aside the factual findings of the
WCJ in the absence of manifest error or unless it is clearly wrong. Lacaze v. Alliance
Compressors, 03-1566 (La.App. 3 Cir. 4/14/04), 870 So.2d 1150.
“The purpose of SEBs is to compensate an injured employee for the wage-
earning capacity lost as a result of a work-related accident.” Lacaze, 870 So.2d at
1154, citing City of Jennings v. Dequeant, 96-943 (La.App. 3 Cir. 11/5/97), 704
2 So.2d 264, writ denied 98-0610 (La. 4/24/98), 717 So.2d 1174. An employee bears
the burden of proving, by a preponderance of the evidence, that the injury resulted in
his or her inability to earn ninety percent (90%) or more of the average pre-injury
wage under the facts and circumstances of the individual case. Lacaze, 870 So.2d at
1155, quoting Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La. 1/14/94), 630 So.2d
733, 739; La.R.S. 23:1221(3)(a).
In this case, Palmer necessarily fails in meeting her burden of proof by virtue
of the stipulations that, at the time of her accident, she had an average weekly wage
of three hundred eighty-seven dollars and sixty cents ($387.60) and that, on
December 2, 2002, after her on-the-job injury, she received a raise which made her
average weekly wage four hundred and three dollars and twenty cents ($403.20), and
that the parties knew of no reason why Palmer could not still be employed by
Alliance at a weekly wage equal to or higher than her pre-accident average weekly
wage but for the “for cause” termination. In effect, Palmer stipulated that as of
December 2, 2002, she was earning more than one hundred percent (100%) of her
pre-accident wages and that the reason she was unable to earn ninety percent (90%)
or more of her average pre-injury wage after December 11, 2002 was because of her
own attempt to conceal her violation of Alliance’s attendance policy and not because
of her injury. Therefore, she failed to meet the applicable burden of proof and is not
entitled to SEB for that reason.
Palmer relies heavily on the cases of Palmer v. Schooner Petroleum Services,
02-397 (La.App. 3 Cir. 12/27/02), 834 So.2d 642, writ denied, 03-367 (La. 4/21/03),
841 So.2d 802, and Lacaze, which coincidently involves the same employer, for the
proposition that the termination of employment does not destroy that employee’s
entitlement to SEB. In Palmer, this court recognized that termination in and of itself
3 does not end entitlement to SEB. Palmer’s employer contended that the termination
was due to substandard job performance, but this court found that the WCJ’s factual
determination of poor work performance was manifestly erroneous and that the
claimant was, therefore, entitled to SEB despite his termination. In so finding, this
court stated: “The record simply does not reasonably substantiate a degree of poor
work performance that would be tantamount to Palmer’s refusal to work and a
concomitant loss of SEB.” Id. at 651.
In Lacaze, the employee returned to work after being injured on the job and
was immediately suspended for two weeks. Her benefits were also terminated on that
date. She returned to work after the suspension and was terminated several days later.
She did find work as a housesitter after her termination from Alliance. This court
found that Lacaze was entitled to SEB during her suspension and afterwards, subject
to a credit for the days that she did work for Alliance, and that her entitlement to SEB
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
05-478
TINA PALMER
VERSUS
ALLIANCE COMPRESSORS
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 02 PARISH OF RAPIDES, NO. 03-05871 HONORABLE JAMES L. BRADDOCK WORKERS’ COMPENSATION JUDGE
J. DAVID PAINTER JUDGE
Court composed of Glenn B. Gremillion, J. David Painter, and James T. Genovese, Judges.
AFFIRMED.
Mark A. Watson Post Office Box 1711 Alexandria, LA 71309 Counsel for Defendant-Appellee: Alliance Compressors
Joe Payne Williams Post Office Box 15 Natchitoches, LA 71458-0015 Counsel for Plaintiff-Appellant: Tina Palmer PAINTER, Judge.
In this workers’ compensation case, Plaintiff, Tina Palmer (“Palmer”), appeals
the judgment of the Workers’ Compensation Judge (“WCJ”) denying her claim for
supplemental earnings benefits (“SEB”), penalties, and attorney fees. For the
following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties stipulated that Palmer was injured1 on August 21, 2002, in the
course and scope of her employment with Alliance Compressors (“Alliance”) and that
she was treated by an orthopaedist, Dr. John P. Sandifer, and allowed to return to
work in a light duty position that same day. The parties further stipulated that Palmer
lost no time from work as a result of her injuries and that Alliance accommodated the
light duty restrictions. At the time of her accident, Palmer had an average weekly
wage of three hundred eighty-seven dollars and sixty cents ($387.60). On December
2, 2002, Palmer received a raise which made her average weekly wage four hundred
three dollars and twenty cents ($403.20).
Palmer continued to work for Alliance until she was terminated on December
11, 2002 for cause. The parties additionally stipulated that the termination was for
cause and completely unrelated to her job-related accident and/or injuries sustained
therein. The stipulation included an explanation that Palmer unsuccessfully
attempted to conceal a violation of the company’s attendance policy and knew that
the violation of the attendance policy alone could result in her termination. The
stipulation went on to include a statement that the parties knew of no reason why
Palmer could not still be employed by Alliance at a weekly wage equal to or higher
than her pre-accident average weekly wage but for the “for cause” termination.
1 Palmer developed carpal tunnel syndrome in her left wrist.
1 Reasoning that it would be totally contrary to the public purpose and policy of
the workers’ compensation law to allow an employee to violate company policies
after being provided with a job that accommodates the employee’s restriction and, in
effect, hold the employer hostage to pay benefits, the WCJ denied Palmer’s claims for
SEB, penalties, and attorney fees. For the reasons that follow, we affirm the decision
of the WCJ.
DISCUSSION
The sole issue before this court is whether or not Palmer was entitled to SEB
after December 11, 2002. Palmer contends that regardless of the reasons for her
firing, she is still restricted to light duty work and is entitled to SEB, with an earning
capacity of five dollars and fifteen cents ($5.15) per hour for forty hours of work per
week. Alliance, on the other hand, contends that as a result of Palmer’s “for cause”
termination, it is no longer responsible for any continuing indemnity benefits,
including but not limited to SEB, after December 11, 2002.
We first note that the determination of whether an employee is entitled to SEB
is necessarily a facts and circumstances inquiry in which courts must be mindful of
the jurisprudential tenet that workers’ compensation law is to be construed liberally
in favor of finding coverage. Manpower Temporary Services v. Lemoine, 99-636
(La.App. 3 Cir. 10/20/99), 747 So.2d 153, citing Daigle v. Sherwin-Williams Co., 545
So.2d 1005 (La.1989). Accordingly, we may not set aside the factual findings of the
WCJ in the absence of manifest error or unless it is clearly wrong. Lacaze v. Alliance
Compressors, 03-1566 (La.App. 3 Cir. 4/14/04), 870 So.2d 1150.
“The purpose of SEBs is to compensate an injured employee for the wage-
earning capacity lost as a result of a work-related accident.” Lacaze, 870 So.2d at
1154, citing City of Jennings v. Dequeant, 96-943 (La.App. 3 Cir. 11/5/97), 704
2 So.2d 264, writ denied 98-0610 (La. 4/24/98), 717 So.2d 1174. An employee bears
the burden of proving, by a preponderance of the evidence, that the injury resulted in
his or her inability to earn ninety percent (90%) or more of the average pre-injury
wage under the facts and circumstances of the individual case. Lacaze, 870 So.2d at
1155, quoting Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La. 1/14/94), 630 So.2d
733, 739; La.R.S. 23:1221(3)(a).
In this case, Palmer necessarily fails in meeting her burden of proof by virtue
of the stipulations that, at the time of her accident, she had an average weekly wage
of three hundred eighty-seven dollars and sixty cents ($387.60) and that, on
December 2, 2002, after her on-the-job injury, she received a raise which made her
average weekly wage four hundred and three dollars and twenty cents ($403.20), and
that the parties knew of no reason why Palmer could not still be employed by
Alliance at a weekly wage equal to or higher than her pre-accident average weekly
wage but for the “for cause” termination. In effect, Palmer stipulated that as of
December 2, 2002, she was earning more than one hundred percent (100%) of her
pre-accident wages and that the reason she was unable to earn ninety percent (90%)
or more of her average pre-injury wage after December 11, 2002 was because of her
own attempt to conceal her violation of Alliance’s attendance policy and not because
of her injury. Therefore, she failed to meet the applicable burden of proof and is not
entitled to SEB for that reason.
Palmer relies heavily on the cases of Palmer v. Schooner Petroleum Services,
02-397 (La.App. 3 Cir. 12/27/02), 834 So.2d 642, writ denied, 03-367 (La. 4/21/03),
841 So.2d 802, and Lacaze, which coincidently involves the same employer, for the
proposition that the termination of employment does not destroy that employee’s
entitlement to SEB. In Palmer, this court recognized that termination in and of itself
3 does not end entitlement to SEB. Palmer’s employer contended that the termination
was due to substandard job performance, but this court found that the WCJ’s factual
determination of poor work performance was manifestly erroneous and that the
claimant was, therefore, entitled to SEB despite his termination. In so finding, this
court stated: “The record simply does not reasonably substantiate a degree of poor
work performance that would be tantamount to Palmer’s refusal to work and a
concomitant loss of SEB.” Id. at 651.
In Lacaze, the employee returned to work after being injured on the job and
was immediately suspended for two weeks. Her benefits were also terminated on that
date. She returned to work after the suspension and was terminated several days later.
She did find work as a housesitter after her termination from Alliance. This court
found that Lacaze was entitled to SEB during her suspension and afterwards, subject
to a credit for the days that she did work for Alliance, and that her entitlement to SEB
did not cease upon her termination based upon the finding that Lacaze did not refuse
to accept employment, but rather was not permitted to work due the suspension and
termination imposed by Alliance.
We agree that an employer cannot create a job accommodating the restrictions
placed on the injured employee and then fire that employee, without cause, to avoid
paying benefits. On the other hand, we recognize that an injured employee cannot
refuse to accept the employment or blatantly violate company policy without the
possibility of recourse by the employer.
In Fusilier v. Slick Const. Co., 94-11, p.4 (La.App. 3 Cir. 6/1/94), 640 So.2d
788, 791,we held that “[w]here the claimant has been released to light duty work and
refuses his employer’s offer of light duty work at the same wage and hours, he is not
entitled to SEB.” The instant case can be decided on this rationale, which is
4 consistent with our prior holdings in Palmer and Lacaze. The parties stipulated that
Alliance provided a job to Palmer after her injury that accommodated the restrictions
placed upon her and afforded her an even greater rate of pay after she received a raise
in that light duty position. The parties further stipulated that the light duty job would
still be available to her but for her termination for cause unrelated to the injury. The
fact that the job is no longer available to her solely due to her own actions is no
different from refusing to accept the job in the first place and, thus, terminates her
entitlement to SEB.
Having found that Palmer failed to meet her burden of proving entitlement to
SEB, we find that Alliance reasonably controverted Palmer’s claims and that its
actions were neither arbitrary nor capricious. Thus, the WCJ was correct in denying
Palmer’s claims for penalties and attorney fees.
DECREE
Based on the stipulations of the parties, particularly those that the termination
was for cause and completely unrelated to her job-related accident and/or the injuries
sustained therein, and that the parties knew of no reason why Palmer could not still
be employed by Alliance at a weekly wage equal to or higher than her pre-accident
average weekly wage but for the “for cause” termination, we cannot say that the WCJ
committed manifest error or was clearly wrong in finding that Palmer was not entitled
to SEB. We, therefore, affirm the WCJ’s denial of Palmer’s claims for SEB,
penalties, and attorney fees as well as the dismissal of her claims with prejudice. All
costs of this appeal of assessed to Plaintiff-Appellant, Tina Palmer.