Villar v. Industrial Metal Recyclers

111 So. 3d 372, 2012 La.App. 1 Cir. 0319, 2012 WL 5377676, 2012 La. App. LEXIS 1439
CourtLouisiana Court of Appeal
DecidedNovember 2, 2012
DocketNo. 2012 CA 0319
StatusPublished
Cited by1 cases

This text of 111 So. 3d 372 (Villar v. Industrial Metal Recyclers) 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
Villar v. Industrial Metal Recyclers, 111 So. 3d 372, 2012 La.App. 1 Cir. 0319, 2012 WL 5377676, 2012 La. App. LEXIS 1439 (La. Ct. App. 2012).

Opinion

PETTIGREW, J.

lain this workers’ compensation dispute, Industrial Metal Recyclers, Inc. (“Industrial”) and its insurer, The Gray Insurance Company (“Gray”), appeal a judgment of the Office of Workers’ Compensation (“OWC”) in favor of claimant, Maurice Vil-lar. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 18, 2000, Mr. Villar was injured in the course and scope of his employment as a pipe fitter with Industrial when a large steel beam fell on him, crushing his left leg against a concrete column and resulting in the partial amputation of his left leg. Mr. Villar was 61 years old when the accident occurred. He has not worked since his accident. Subsequent to the incident, temporary total disability benefits were initiated.

According to the record, Gray hired a vocational rehabilitation counselor in 2000 to meet with Mr. Villar and evaluate his return-to-work options. Mr. Villar’s treating physician, Dr. Lawrence J. Messina, set restrictions on Mr. Villar such that he could only perform sedentary part-time work. In February 2002, Mr. Villar’s indemnity benefits were converted to supplemental earning benefits in the amount of $384.00 per week, which he was paid every two weeks until July 2010.

After his benefits were terminated, Mr. Villar filed a disputed claim for compensation, alleging that he was entitled to permanent total disability benefits and that [374]*374his benefits were arbitrarily and capriciously terminated. Prior to trial, Mr. Vil-lar was reevaluated by a vocational counselor who reported that Mr. Villar was completely unemployable due to his amputated leg, his advanced age of 71, his inability to perform prior occupations, the lack of transferable skills, and the physician-assigned sedentary part-time work restriction. The matter proceeded to trial on October 3, 2011, at which time the parties stipulated to the date of the accident, July 18, 2000, the fact that Mr. Vil-lar’s left leg was partially amputated as a result of the accident, that his average weekly wage was $576.00 with an indemnity rate of $384.00, and that Mr. Villar received temporary total disability benefits and supplemental earning benefits until July 18, 2010. The narrow issues presented to the OWC were whether Mr. Villar was permanently and [ stotally disabled as a result of the July 18, 2000 accident, and, if so, whether Industrial’s termination of his benefits was arbitrary and capricious such that penalties and attorney fees are warranted. After listening to the testimony of the witnesses at trial and reviewing the applicable law and documentary evidence in the record, the OWC hearing officer rendered judgment from the bench in favor of Mr. Villar and against Industrial and Gray. The hearing officer found that Mr. Villar was permanently and totally disabled and that Mr. Villar met his burden of proving that he was entitled to permanent and total disability benefits. The hearing officer further found that Mr. Villar was unemployable. The hearing officer also concluded that Industrial arbitrarily and capriciously terminated Mr. Villar’s benefits without having done any kind of investigation to determine if he was permanently and totally disabled and awarded $15,000.00 in attorney fees and costs. A judgment in accordance with these findings was signed by the OWC hearing officer on October 31, 2011, as follows:

1. The [OWC hearing officer] finds that the claimant is permanently totally disabled under La. R.S. 23:1221(2)(c) from July 19, 2010 to date.
2. The [OWC hearing officer] finds that there is no reasonable probability that, with appropriate training or education, Mr. Villar may be rehabilitated to the extent that he can achieve suitable gainful employment, and it is therefore not in the best interest of the claimant to undertake such training or education.
3. The [OWC hearing officer] finds that the defendants were arbitrary and capricious in the termination of indemnity benefits after 520 weeks without properly investigating Mr. Villar’s disability status as of the time of the termination.
4. The [OWC hearing officer] awards $15,000[.00] in attorney fees for the arbitrary and capricious termination of Mr. Villar’s indemnity benefits.
5. Judicial interest is awarded from the date each installment became due payable from July 19, 2010 to date at the interest rate in effect at the time the 1008 was filed which was 3.75%.
6. Interest is due on the attorney fee at the rate of 3.75% from the date of the award.
7. The [OWC hearing officer] awards Thomas Mungall an expert witness fee in the amount of $135[.00] for his trial testimony.
8. All costs of the proceeding in the amount of $1,490.36 are the responsibility of the defendant.

This appeal by Industrial and Gray followed.

14After considering the October 31, 2011. judgment and examining the record, this [375]*375court issued an interim order on September 27, 2012, finding that although the OWC hearing officer had determined that Mr. Villar was permanently and totally disabled and had met his burden of proving he was entitled to benefits, the judgment failed to include an award of said benefits. Thus, we remanded the case to the OWC for the limited purpose of having the hearing officer sign an amended judgment that was final and appealable. See Johnson v. Mount Pilgrim Baptist Church, 2005-0337, pp. 2-3 (La.App. 1 Cir. 3/24/06), 934 So.2d 66, 67; Carter v. Williamson Eye Center, 2001-2016, p. 3 (La. App. 1 Cir. 11/27/02), 837 So.2d 43, 44.

On October 5, 2012, the OWC hearing officer signed an amended judgment, which for the most part tracked the language of the original judgment, with the exception of the issues that this court had instructed the OWC to correct. The new language in the October 5, 2012 judgment is as follows:

1. The [OWC hearing officer] finds that the claimant is permanently totally disabled under La. R.S. 23:1221(2)(c) from July 19, 2010 to date at the rate of $384[.00] a week.
2. The [OWC hearing officer] finds that the claimant is entitled to $24,192.00 in past due indemnity benefit[s] totaling benefits owed from July 19, 2010 until October 3, 2011, and continuing thereafter at the rate of $384[.00] a week.

The remainder of the original October 31, 2011 judgment was unchanged.

ISSUES FOR REVIEW

On appeal, Industrial and Gray assign the following specifications of error:

1. The [OWC hearing officer] manifestly erred in finding that the claimant is permanently and totally disabled.
2. The [OWC hearing officer] erred in concluding that there was no reasonable probability that with appropriate training or education that claimant may be rehabilitated.
3. The [OWC hearing officer] manifestly erred in finding that defendants arbitrarily and capriciously terminated benefits on July 19 2010.

DISABILITY STATUS

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, 2004-0600, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 86, 88.

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Bluebook (online)
111 So. 3d 372, 2012 La.App. 1 Cir. 0319, 2012 WL 5377676, 2012 La. App. LEXIS 1439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/villar-v-industrial-metal-recyclers-lactapp-2012.