96-442 La.App. 3 Cir. 10/9/96, Brady v. Northland Frozen Food
| Decision Date | 09 October 1996 |
| Citation | 688 So.2d 1139 |
| Parties | 96-442 La.App. 3 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Daniel Elmo Broussard, Jr., Alexandria, for Plaintiff-Appellee.
Nanak Rai, Shreveport, for Defendant-Appellant.
Before SAUNDERS, SULLIVAN and GREMILLION, JJ.
[96-442 La.App. 3 Cir. 1] GREMILLION, Judge.
In this workers' compensation case, the defendant, Northland Frozen Foods, Inc., appeals the decision of the hearing officer awarding the plaintiff, Shane Brady, supplemental earnings benefits and benefits for permanent and serious disfigurement. The hearing officer also awarded Brady penalties and attorney's fees as a result of Northland's premature termination of his benefits and its failure to reinstate them. After reviewing the record, we affirm the hearing officer's decision in its entirety and increase the award of attorney's fees for Brady's successful defense of this appeal.
Brady, a laborer for Northland, was injured on November 30, 1993, when his glove became caught on a conveyor belt, pulling his right arm into the conveyor and causing him serious injury. Brady was taken to St. Francis Cabrini Hospital in Alexandria, where he was treated by Dr. W. Stanley Foster, an orthopedic surgeon, for second to third degree abrasions and/or burns over the entire anterior aspect of his arm, [96-442 La.App. 3 Cir. 2] forearm, and hand, and a 20 to 25 centimeter tearing laceration to the axilla, or armpit. The laceration was repaired by surgery and the abrasions and burns were irrigated and debrided. Brady remained in the hospital until December 4, 1993. Fourteen days after his accident, Northland commenced the payment of workers' compensation benefits to Brady in the amount of $85.00 per week.
Dr. John McCabe, a specialist in plastic and reconstructive surgery, performed a skin graft on Brady's arm on December 14, 1993, removing donor skin from his right lateral thigh and placing it over the injured area of his shoulder and arm. Following this procedure, there were several areas where the skin graft failed to take, resulting in cracks in the antecubital fossa (bend of the elbow) and along his volar forearm (located on the same side as the palm of the hand). Brady also developed a hypertrophic scar, which resulted in a limited range of motion in his arm. In a May 6, 1994 letter to Gretchen Montero, a vocational rehabilitation counselor, Dr. McCabe recommended that Brady should not work in outside areas which would result in high heat exposure and that he perform no duties requiring friction or heavy lifting, as these would put pressure on his volar right forearm.
On November 9, 1994, Dr. McCabe was presented with a job description for a position with Northland. The job title was "production line worker" and involved packaging the product manually and performing a combination of duties: labeling containers and sorting them on the conveyor belt before they passed through the overwrap machine. Dr. McCabe approved this position for Brady.
Brady returned to Northland on November 14, 1994, and was initially told by David Bailey, a supervisor, that his duties would entail labeling boxes of vegetables on the conveyor belt. Instead, since Brady was wearing a jobst stocking over his injured arm, Bailey had him straightening boxes on the conveyor belt. After a while, however, the conveyor belt backed up and Brady was required to unload the boxes [96-442 La.App. 3 Cir. 3] from the conveyor belt and place them on a table located behind him. The twisting and throwing motion required by this activity caused the scar in the bend of Brady's elbow to open up and bleed. After working 1 1/2 to 2 hours, Brady told Jana Klock, Northland's secretary, about his arm and she instructed him to go home. Brady made another appointment to see Dr. McCabe, who recommended another skin graft to correct the hypertrophic scar in the antecubital fossa. This surgery was performed on January 31, 1995.
On November 13, 1994, Northland terminated Brady's benefits because he was to return to work the next day earning his pre-injury wages. On November 30, 1994, Brady filed a disputed claim for compensation, alleging the wrongful termination of workers' compensation benefits, and seeking penalties and attorney's fees. On December 15, 1994, after learning that Brady was going to have surgery on his arm, Northland reinstated Brady's benefits and brought his past due benefits up to date. Following the January 31, 1994 skin graft, Dr. McCabe was again given the same job description with Northland, which he approved on March 24, 1995. Although Brady was to report to work in April 1995, he failed to do so. His reasons being fear of reinjuring his arm and because the work at Northland was not steady. On April 27, 1995, the claims adjustor handling Brady's file terminated his compensation benefits due to his failure to report for the position. These benefits were never reinstated despite the fact that on June 30, 1995, Northland closed without any warning in order for the corporation to restructure.
A hearing was held on Brady's claim on August 30, 1995, at which the parties stipulated that Brady was injured during the course and scope of his employment on November 30, 1993, that Northland paid temporary total disability benefits through November 13, 1994, that the benefits were reinstated on December 13, 1994, retroactive to November 13, and that they were finally terminated on April [96-442 La.App. 3 Cir. 4] 27, 1995.
After considering the evidence, the hearing officer rendered a decision ordering Northland to pay supplemental earnings benefits to Brady based on a postaccident ability to earn wages of zero, effective July 1, 1995, and continuing until true rehabilitation was provided which located a job within his ability to perform. The hearing officer further awarded Brady benefits for serious and permanent disfigurement in an amount equal to 66 2/3% of his wages for 100 weeks. Finally, the hearing officer awarded Brady statutory penalties of 12% on all amounts awarded, plus attorney's fees of $5,000.00.
On appeal, Northland urges three assignments of error: (1) the hearing officer was clearly wrong in not allowing it to introduce the deposition testimony of its vocational rehabilitation counselor; (2) the hearing officer committed manifest error in awarding penalties and attorney's fees to Brady; and (3) the hearing officer incorrectly added the issue of disfigurement to the issues properly before her.
Brady answered Northland's appeal, by asking this court to increase the amount awarded as attorney's fees as a result of additional time spent defending this appeal.
In its first assignment of error, Northland asserts that the hearing officer was clearly wrong in excluding the deposition testimony of its vocational rehabilitation counselor, Susan Manuel. The hearing officer determined that Manuel was not a licensed vocational rehabilitation counselor and excluded her deposition testimony, except for the purpose of deciding the penalties and attorney's fee claim.
In James v. State Through DHHR, 572 So.2d 701, 703 (La.App. 4 Cir.1990), writ denied, 575 So.2d 395 (La.1991), the court stated:
[96-442 La.App. 3 Cir. 5] The trier of fact has vast discretion in assessing the credibility of witnesses. Disability under the Louisiana Worker's Compensation Act is a legal rather than purely medical determination. A trier of fact may reject the opinion of a medical expert depending upon the impression that the expert's qualifications, credibility, and testimony make. Green v. Cement Products Services, 526 So.2d 493, 497 (La.App. 1st Cir.1988).
La.R.S. 37:3447 lists the requirements for a licensed professional counselor:
....
(5) Has received a master's degree in rehabilitation counseling or related field and two years experience under the supervision of a licensed vocational rehabilitation counselor or a bachelor's degree in vocational rehabilitation or related field and five years work experience, working under the supervision of a licensed vocational rehabilitation counselor.
La.R.S. 37:3450(A) provides that:
No person shall assume or use the title or designation "licensed professional vocational rehabilitation counselor" unless he has in his possession a valid license issued by the board under the authority of this Chapter.
La.R.S. 37:3452 provides that certain persons and their activities are exempted from the licensing requirements of this chapter:
(3) Any person employed or supervised by a licensed professional rehabilitation counselor, while carrying out specific tasks under the licensee's supervision. The supervisee shall not represent himself to the public as a licensed professional rehabilitation counselor.
In her deposition, Manuel testified that with regards to her qualifications, she was licensed as a rehabilitation counselor, and that January was the end of her supervised time for licensure. She stated that she had 8 1/2 years experience in rehabilitation work, however, she had never testified in court or given a deposition in a rehabilitation case, although she had testified in social security cases. She also was unsure of whether she was on the list of approved vocational consultants for the Office of Workers' Compensation. As a result of this testimony and after determining that a person working under the supervision of a licensed professional vocational rehabilitation counselor does not possess a valid license, the hearing officer excluded Manuel's testimony.
[96-442 La.App. 3 Cir. 6] Given the hearing officer's vast discretion in assessing the credibility of witnesses, we cannot say that she abused her much discretion in excluding the testimony of Manuel, based on the fact that she was not a licensed vocational rehabilitation counselor. For this reason, we find this assignment of...
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