Banks v. Industrial Roofing & Sheet Metal Works, Inc.

• Decision Date: 01 July 1997
• Citation: 696 So.2d 551
• Parties: 96-2840 La
• Court: Louisiana Supreme Court

Page 551

696 So.2d 551

96-2840 La. 7/1/97

Aaron BANKS, Jr. v. INDUSTRIAL ROOFING & SHEET METAL WORKS, INC.

No. 96-C-2840.

Supreme Court of Louisiana.

July 1, 1997.

William Travis Allison, Mills, Timmons & Flowers, Shreveport, for Applicant.

Donald J. Anzelmo, Crawford & Anzelmo, Monroe, for Respondent.

[96-2840 La. 2] CALOGERO, Chief Justice.

In this workers' compensation case, the hearing officer, after a trial on the merits, awarded the claimant maximum supplemental earnings benefits and ordered vocational rehabilitation, finding that the employer failed to establish that there were reasonably available jobs in claimant's geographical region and within claimant's physical limitations that paid ninety percent (90%) or more of claimant's average pre-injury wage. The court of appeal reversed, finding that the employer sufficiently demonstrated the availability of several jobs within claimant's physical capabilities and geographic region, which paid more than claimant's average pre-injury wage. We granted certiorari to determine whether the court of appeal erred in concluding that the hearing officer's findings were manifestly erroneous. We also granted the writ to resolve a split among the courts of appeal as to what an employer must do to carry its burden of proving job availability. For the reasons that follow in this admittedly close case, we reverse the court of appeal, amend the hearing officer's judgment, and affirm as amended.

FACTS & PROCEDURAL HISTORY

On September 8, 1993, Aaron Banks, Jr. (Banks), an employee of Industrial Roofing & Sheet Metal Works (Industrial), sustained an injury to his right thumb in the course and scope of his employment as a roofer's helper. Banks had been employed full-time by Industrial as a roofer's helper for three and one-half years prior to the accident, where he had earned $5.50 an hour and an average weekly wage of $220.69. From the date of the accident through January 24, 1995, Industrial paid Banks compensation benefits in the amount of $147.13 per week.

The September 8, 1993 injury occurred when a bundle of shingles fell off the roof of Don's Seafood and hit Banks' right hand, thereby dislocating and [96-2840 La. 3] fracturing his thumb. After informing his supervisor, James Robertson, of the injury, Banks reported to the emergency room of Willis-Knighton Medical Center where he was examined by Dr. James Lillich. After determining that Banks sustained a comminuted right fracture dislocation of the thumb, Dr. Lillich admitted Banks and performed a surgical procedure on him the following day (specifically, an open reduction and internal fixation and a repair of ligament structures). Banks remained under Dr. Lillich's care for several months following the surgery.

On December 22, 1993, Dr. Lillich opined that Banks had "most likely reached maximum medical improvement" and that he might be able to return to work on January 3, 1994. However, when Banks complained of continuing stiffness and pain in his hand on January 12, 1994, Dr. Lillich referred Banks to Dr. Marion Milstead, a specialist in hand surgery, and recommended that he not return to work until authorized to do so by Dr. Milstead.

Banks was first examined by Dr. Milstead on January 17, 1994. Dr. Milstead eventually concluded that Banks' continued pain and suffering were caused by traumatic arthritis and that Banks' pain might be lessened by a fusion of the MP joint. Banks decided against undergoing the fusion procedure because the fusion would result in further loss of motion of his thumb. On March 15, 1994, Dr. Milstead informed Banks that he would never be able to return to roofing-type work because of the degenerative changes in the joint and recommended that Banks seek vocational rehabilitation for a different type of work.

At Industrial's request, Banks was also examined by Dr. Gordon M. Mead on March 25, 1994. Dr. Mead concurred with Dr. Milstead that Banks was suffering from post-traumatic arthritis in the right thumb and also agreed with Dr. [96-2840 La. 4] Milstead's recommendation of an MP joint fusion. Dr. Mead further opined that, even if Banks had the fusion, he would not be able to return to heavy manual labor.

In mid-1994, Industrial engaged a vocational rehabilitation firm, Glenn-Mar, to render rehabilitation services to Banks. Glenn-Mar assigned Janet Papworth, a certified vocational rehabilitation counselor, to work with Banks. Papworth first met with Banks and his wife on July 19, 1994. At that meeting, Papworth completed an "initial vocational evaluation" of Banks, wherein she identified Banks' work experience, interests, and other factors necessary to assess his ability to return to work. Papworth then performed a transferrable skills analysis based upon Banks' objective work history, education, and current medical status for the purpose of determining what type of post-injury work might be suitable for Banks. Papworth learned that Banks was a 44-year-old high school graduate who had previously been employed as an orderly, a cook, and a baker's helper prior to his employment with Industrial as a roofer's helper.

On August 8, 1994, Papworth met with Dr. Milstead, Banks, and his wife. At that meeting, Dr. Milstead told Papworth that although Banks still suffered from a limited range of motion in his right thumb and decreased pinch and grip strength, he had reached maximum medical improvement (barring any further surgical intervention to decrease pain). On September 7, 1994, Dr. Milstead formally released Banks to return to work, subject to the following permanent restrictions: no strenuous gripping or pinching and no lifting over fifteen (15) pounds.

On October 4, 1994, Papworth again met with Banks and his wife to provide Banks with job seeking skills and to start the vocational counseling [96-2840 La. 5] process. At that meeting, Papworth suggested that Banks register with the local Job Service office and fill out an application with the Job Training Partnership Act to be considered for their job training program. Papworth advised Banks to be persistent, to apply for jobs in person, to keep a daily job search work sheet, and to dedicate between twenty to twenty-five hours a week to job searching activities. Papworth also informed Banks that she would begin searching for available jobs within the work restrictions set forth by Dr. Milstead (no strenuous gripping or pinching and no lifting over fifteen (15) pounds). To that end, Papworth completed a job labor market survey.

In a letter dated October 26, 1994, Dr. Milstead assigned Banks a 23% upper extremity disability rating (20% impairment for loss of grip strength, 1% impairment for crepitation in the joint from the traumatic arthritis, and 2% for loss of motion of the PIP joint of the thumb) and a 14% total body loss disability rating.

On December 1, 1994, Papworth met with Dr. Milstead, Banks, and his wife to review job analyses for five potential jobs that Papworth had identified for Banks. ¹ The five jobs identified in the labor market survey, which were allegedly within Banks' physical restrictions and geographical region, were as follows: (1) tractor-trailer driver, (2) unarmed security guard, (3) pest control trainee, (4) cab driver, and (5) dispatcher. Based solely upon the limited information provided by Papworth as to the particular requirements of each job, Dr. Milstead approved all of the jobs, finding them to be within Banks' physical capabilities. The wages for these jobs ranged from $4.25 per hour up to an estimated $500 per week. [96-2840 La. 6] According to the labor market survey, there was one job opening for each of the above-listed jobs on November 21, 1994. There is nothing in the record, however, that indicates that any or all of these jobs were still available on December 1, 1994, the date that Banks first learned of their existence, or thereafter.

At the close of the December 1, 1994 meeting, Papworth provided Banks with a written list of these jobs, along with the names and addresses or phone numbers of the potential employers. Papworth also mailed a copy of the job list to Banks' counsel on January 1, 1995. This copy was forwarded by his counsel to Banks on January 10, 1995. On January 25, 1995, without any further communication or any other follow-up whatsoever with Banks or his counsel, Industrial terminated Banks' benefits.

On February 2, 1995, Banks initiated this suit by filing a disputed claim for compensation form with the Office of Workers' Compensation Administration, alleging claims for "meaningful" rehabilitation and wrongful termination of benefits. On February 9, 1995, Papworth attempted to schedule a meeting with Banks, but, on the advice of his counsel, Banks refused further rehabilitation services, pending the outcome of this litigation.

After a trial on the merits on September 15, 1995, the workers' compensation hearing officer awarded Banks supplemental earnings benefits in the amount of $147.13 per week, retroactive to January 25, 1995, the date that Industrial terminated compensation benefits, reasoning that Industrial failed to establish that the identified jobs were "realistically available ..., while at the same time being within Banks' physical abilities." ² The hearing officer also ruled that [96-2840 La. 7] Banks was entitled to further rehabilitation services in accordance with LSA-RS 23:1226, but denied Banks' claims for attorney fees and penalties.

Industrial appealed, arguing that it had met its burden of establishing the availability of several jobs within Banks' physical capabilities and geographic region that paid more than his pre-injury wage. Banks answered the appeal, arguing that the hearing officer erred in failing to award attorney fees and penalties. The court of appeal agreed with Industrial and reversed the judgment of the hearing officer, finding the hearing officer's conclusions to be manifestly erroneous. Nonetheless, "in the spirit of...