942444 La.App. 1 Cir. 10/6/95, Hammons v. ABB C-E Services, Inc.

• Decision Date: 06 October 1995
• Citation: 671 So. 2d 370
• Parties: Cir
• Court: Court of Appeal of Louisiana — District of US

Page 370

671 So.2d 370

942444 La.App. 1 Cir. 10/6/95

William Daniel HAMMONS v.ABB C-E SERVICES, INC. and Transportation Insurance Company.

No. 94 CA 2444.

Court of Appeal of Louisiana First Circuit.

Oct. 6, 1995.

J. Arthur Smith, III, Baton Rouge, for Plaintiff-AppelleeWilliam D. Hammons.

Kirk L. Landry, Baton Rouge, for Defendants-AppellantsABB C-E Services, Inc. and Transportation Insurance Co.

Before LOTTINGER, C.J., WATKINS, SHORTESS, CARTER, LeBLANC, FOIL, GONZALES, WHIPPLE, FOGG, PITCHER, PARRO, FITZSIMMONS, KUHN, JJ., and REDMANN¹ and TANNER ², JJ.Pro Tem.

[942444 La.App. 1 Cir. 2] FOGG, Judge.

In this worker's compensation action, ABB C-E Services, Inc., and Transportation Insurance Company appeal the award of compensation, interest, and penalties and attorney's fees to William D. Hammons, the plaintiff.

The parties stipulated that the plaintiff injured his left knee in the course and scope of his employment on October 31, 1990.The plaintiff, a 63 year old boilermaker, underwent arthroscopic surgery on the left knee on February 15, 1991.By September, 1992, the treating orthopedic surgeon declared the plaintiff a candidate for total knee arthroplasty with restrictions of no prolonged sitting or standing; by October, 1992, the plaintiff had developed right knee pain and swelling with x-rays indicating collapse with bone-on-bone contact of the medial component.

The defendants initially paid the plaintiff temporary total disability benefits, and then supplemental earnings benefits (SEB) at the maximum rate from September 30, 1991, until December 9, 1991.At that time, they reduced the SEB and then, on August 4, 1993, terminated it.The plaintiff filed this worker's compensation claim on November 18, 1993, and trial was held on April 14, 1994.

The hearing officer awarded the plaintiff SEB from August 27, 1991, until April 14, 1994, in the amount of $1212.60 per month with legal interest from the date of judicial demand until paid; permanent total disability benefits from the date of trial, April 14, 1994, in the amount of $1481.66 per month with legal interest from the date of judicial demand until paid; penalties of $2000.00 and attorney's fees of $1500.00; and costs, including expert witness fees of $500.00 for Dr. Stephen Speeg and $600.00 for Mr. Curtis Charrier.

On appeal, the defendants contend that the hearing officer erred in finding that the plaintiff was permanently totally disabled; in calculating the amount of SEB; in determining the rate of compensation payable to the plaintiff for permanent total disability; in determining the interest owed to the plaintiff; in [942444 La.App. 1 Cir. 3] ruling that the defendants were arbitrary and capricious; and in finding them responsible for costs and experts' fees and in determining the amounts of those fees.The plaintiff answered the appeal seeking an increase in the award of attorney's fees.

Regarding their contention that the hearing officer erred in determining that the plaintiff was totally permanently disabled, the defendants claim that the plaintiff's various other health problems rendered him unable to work as opposed to his knee injury.In her reasons for judgment, the hearing officer detailed the plaintiff's many health problems, and observed that because he had been regularly working as a boilermaker with most of those problems, the plaintiff would "still be working had he not injured his knee."The hearing officer continued,

[T]he accident literally took his legs out from under him.Once this was [sic] occurred, this man with a 3rd grade education and years of boilermaking expertise, began to spiral.His depression worsened, he developed the lumbar facet disease, his arthritis accelerated, and he generally deteriorated to the point where he cannot work at all.

The hearing officer concluded that due to losing the strength of his left and then his right knee, the plaintiff was unable to work, and that the condition of his knees, together with his "horrible general medical condition," constituted permanent total disability.

A pre-existing disease or infirmity of the employee does not disqualify a claim if a work-related injury aggravates, accelerates, or combines with the pre-existing disease or infirmity to produce disability.Toth v. Ensco Environmental Services, Inc., 546 So.2d 188(La.App. 1st Cir.), writ granted in part on other grounds, reversed in part on other grounds, 551 So.2d 623(La.), writ denied, 551 So.2d 632(La.1989).A hearing officer's factual findings regarding whether a worker's compensation claimant has met the burden of proving disability are entitled to great weight and will not be overturned, absent manifest error.Alford v. Environmental Monitoring, 93-0985(La.App. 1st Cir.10/7/94), 646 So.2d 961.The factfinder's determinations as to whether an employee's testimony is credible and whether an employee has discharged his burden of proof are factual findings.Bruno v. [942444 La.App. 1 Cir. 4]Harbert International Inc., 593 So.2d 357(La.1992).When findings are based on a credibility determination, a hearing officer's decision to credit the testimony of one of two or more witnesses can virtually never be manifestly erroneous or clearly wrong.Rosell v. ESCO, 549 So.2d 840(La.1989).We have thoroughly reviewed the record, including the lay testimony, medical testimony, reports and exhibits, and we conclude that the hearing officer's finding that the plaintiff was permanently totally disabled at the time of the hearing is not manifestly erroneous.

The defendants contend that the permanent total disability benefits awarded the plaintiff exceed the maximum rate of compensation permissible under the Louisiana Worker's Compensation Law.Under LSA-R.S. 23:1202(A)(2), the maximum weekly compensation to be paid is 75 percent of the average weekly wage paid in all employment subject to the Louisiana Employment Security Law.The statute further provides,

B.[T]he average weekly wage in all employment subject to the Louisiana Employment Security Law shall be determined by the administrator of the office of employment security on or before August 1 of each year as of the quarter ending on the immediately preceding March 31 of each year.The average weekly wage so determined shall be applicable for the full period during which compensation is payable when the date of occurrence of injury falls within the twelve-month period commencing September 1 following the determination.

According to the Louisiana Register (Vol. 16, No. 8, August 20, 1990), of which we are authorized to take judicial notice under LSA-R.S. 49:966(C), the state's average weekly wage paid in all employment subject to the Employment Security Law effective September 1, 1990 was $376.02, making the maximum weekly compensation $282.00.At the hearing, the parties stipulated that the plaintiff's average weekly wage at the time of the injury was $516.86.Permanent total disability benefits are sixty-six and two-thirds percent of the plaintiff's average weekly wage which in this case would be $344.23.Therefore, because sixty-six and two thirds percent of the plaintiff's average weekly wage is greater than the maximum compensation, the maximum compensation the plaintiff can receive for total permanent disability is $282.00 per week.We note that the plaintiff's contention that the parties did [942444 La.App. 1 Cir. 5] not stipulate to the maximum rate payable for permanent total benefits is meritless because the maximum rate for temporary total disability (which the parties stipulated was at the maximum rate of $282.00 per week) and permanent total disability would be the same.Additionally, while the hearing officer made a monthly award, there is no statutory provision for a monthly award of permanent total disability benefits.Cf.LSA-R.S. 23:1221(3)(a).We therefore will amend the judgment to award the plaintiff $282.00 weekly for permanent total disability benefits.

The defendants contend that the plaintiff was not entitled to SEB as awarded by the hearing officer because the hearing officer did not base her computation on the two jobs the defendants claimed were available to the plaintiff.The plaintiff is entitled to SEB if the injury has resulted in the employee's inability to earn wages equal to ninety percent or more of wages at the time of injury.LSA-R.S. 23:1221(3)(a).The injured 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.Freeman v. Poulan/Weed Eater, 93-1530(La.1/14/94), 630 So.2d 733.Once the employee's burden is met, the burden of proof then shifts to the employer, who, if it wishes to contend that the employee is earning less than he is able to earn so as to defeat or reduce SEB, bears the burden of proving 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 region.LSA-R.S. 23:1221(3)(c)(i).

The hearing officer determined that the two jobs the defendant found for the plaintiff were "obviously unavailable"; yet, she noted that the plaintiff did seek one of the jobs which had already been filled when he applied.As to the second job as a donut cutter, the plaintiff's treating orthopedic surgeon had conditionally approved the job with the restriction of "no prolonged standing"; the plaintiff testified that he learned that [942444 La.App. 1 Cir. 6] the job required heavy lifting and constant standing when he looked into it.We have reviewed the testimony and evidence and the hearing officer's conclusion that the jobs offered were not available to the plaintiff is not manifestly wrong.

The defendants also contend that the hearing officer erred in awarding SEB for the period from August 27, 1991, through April...