Washington v. Louisiana-I Gaming

181 So. 3d 19, 14 La.App. 5 Cir. 467, 2014 La. App. LEXIS 3041, 2014 WL 7338493
CourtLouisiana Court of Appeal
DecidedDecember 23, 2014
DocketNos. 14-CA-467, 14-CA-468
StatusPublished

This text of 181 So. 3d 19 (Washington v. Louisiana-I Gaming) 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
Washington v. Louisiana-I Gaming, 181 So. 3d 19, 14 La.App. 5 Cir. 467, 2014 La. App. LEXIS 3041, 2014 WL 7338493 (La. Ct. App. 2014).

Opinions

HANS J. LILJEBERG, Judge.

12Defendanb-Employer, Louisiana-I Gaming, A Louisiana Partnership in Com-mendam d/b/a Boomtown Casino (“Boom-town”), appeals the decision of the Office [21]*21of Workers’ Compensation granting medical benefits, supplemental earning benefits, penalties, and attorney’s fees to claimant, Letress Washington. For the following reasons, we affirm, in part and reverse in part.

Procedural History

On July 13 and 15, 2013, claimant filed two disputed claims for workers’ compensation relative to two slip-and-fall accidents, asserting that no benefits were being authorized by defendant-employer, Boomtown. On September 9, 2013, the matters were consolidated. On October 23, 2013, the parties entered into a consent judgment, which ordered Boomtown to authorize and pay for an initial evaluation and report of Dr. F. Allen Johnston and Dr. William Alden. A trial on the merits was heard on November 25, 2013, before the Office of Workers’ Compensation. laOn January 24, 2014, the workers’ compensation judge rendered judgment in favor of claimant. Boomtown now appeals.

Facts

The basic facts of this case are undisputed. Claimant previously was employed by the Marriott Hotel for 37 years in a supervisory, janitorial role. At the age of 62, claimant retired and collected Social Security retirement benefits. Claimant thereafter became restless with retirement and sought employment with Boomtown, located on the West Bank of Jefferson Parish. Boomtown hired claimant on March 23, 2013, to work in the capacity of a cook. Claimant’s essential functions as a cook required that she “lift, carry, and push/pull up to 50 pounds so as-to be able to move and stock all necessary supplies.”

At trial, the parties stipulated that claimant sustained injuries in two slip-and-fall accidents while employed with Boom-town. The first incident occurred on May 5, 2013, when she slipped on a wet, kitchen floor. Claimant testified that her lower back, neck, and right shoulder were bruised and sore. Claimant reported the incident to Boomtown and was sent to West Jefferson Industrial Medical Center for treatment, where she was diagnosed as having a contusion of the hand and a lumbar strain. Claimant testified that the doctor took X-rays and prescribed Ibuprofen for the pain and released her back to full. duty work. Claimant was unsatisfied with the doctor’s treatment and went to see her primary care physician, Dr. Allen Brown, on May 7, 2013. Dr. Brown explained to claimant that he did not handle workers’ compensation claims, but ultimately wrote her a slip that she could not lift. over. 15 pounds until May 13, 2013. Claimant testified that she did not give the slip to Boomtown and returned' to her regular duties. She testified that she was able to complete most of her duties with a little help with the lifting from Rfellow employees; however, she still complained of soreness in her lower back, neck, and right hand.

The second incident occurred on July 6, 2013. Claimant explained that she slipped on the wet, dish room in a similar fashion to the previous accident. Claimant testified that she could not immediately stand and required assistance, but did not go to the hospital. Claimant did not immediately seek a doctor until after consulting with her attorney. Claimant thereafter saw Dr. Alden upon her attorney’s referral on July 10,2013. Dr. Alden ordered physical therapy, prescribed pain medication, and returned claimant to light duty work only.

Claimant further testified that- prior to the second incident, she decided that she wished to retire and gave her two-weeks-notice to Boomtown. She explained that she did not like Boomtown’s kitchen and did not like working the graveyard shift. After the second incident, claimant did not [22]*22contact Boomtown regarding the accident, nor did she return to work.

The parties further stipulated that claimant’s average weekly wage was $420.00 at $10.50 per hour with a 40-hour work week.

Assignment of Error No. 1 — Supplemental Earnings Benefits

In its first assignment of error, Boom-town asserts that the workers’ compensation judge erred as a matter of law in finding that claimant is entitled to supplemental earnings benefits (“SEBs”) after the July 6, 2013 accident, and “for any time period when she earned less than 90% of her pre-injury wages.” Boomtown maintains that as a matter of law, to be entitled to supplemental earnings benefits, claimant must prove an inability to earn 90% of her pre-injury wages as a result of the accident, and that claimant did not bear that burden. We agree.

| (¡“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793 (La.1/9/11), 56 So.3d 170, 174, citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Poissenot, supra. It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. “In determining whether a [workers’ compensation judge’s] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Poissenot, supra, citing Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1166.

The workers’ compensation judge clearly erred as a matter of law in finding that claimant is entitled, to SEBs “for any time period when she earned less than | ,¡90% of her pre-injury wages” without proof by a preponderance of the evidence that her work-related injury resulted in her inability to earn 90% or more of her average pre-injury wages. Further, upon review of the record, claimant presented no evidence that she was unable to earn 90% or more of her pre-injury wages. Although the record reflects that claimant could not return to work as a cook, Dr. Alden released claimant to light duty Work. Moreover, Ms. Jeannine Richert, Boomtown’s Risk & Safety Manager, testified that Boomtown had a bank of light duty positions throughout the casino; however, claimant did not contact Boomtown relative to any other work because she chose instead to retire. A claimant is not entitled to SEBs when her inability to earn wages equal to 90% of her pre-injury [23]*23wages is due to circumstances other than her work-related injury. Coleman v.

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Bluebook (online)
181 So. 3d 19, 14 La.App. 5 Cir. 467, 2014 La. App. LEXIS 3041, 2014 WL 7338493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-louisiana-i-gaming-lactapp-2014.