Clark v. Welex, a Halliburton Co.

• Decision Date: 09 December 1987
• Docket Number: No. 86-1133,86-1133
• Citation: Clark v. Welex, a Halliburton Co., 517 So.2d 1186 (La. App. 1987)
• Parties: Thomas G. CLARK, Plaintiff-Appellee, v. WELEX, A HALLIBURTON COMPANY, Defendant-Appellant. 517 So.2d 1186
• Court: Court of Appeal of Louisiana

Page 1186

517 So.2d 1186

Thomas G. CLARK, Plaintiff-Appellee, v.WELEX, A HALLIBURTON COMPANY, Defendant-Appellant.

No. 86-1133.

517 So.2d 1186

Court of Appeal of Louisiana Third Circuit.

Dec. 9, 1987.

Rehearing Denied Jan. 26, 1988.

Writ Denied March 25, 1988.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamera & Abell, James E. Diaz, Lafayette, for defendant-appellant.

Hornsby & Landry, Ashton J. Landry, Lafayette, for plaintiff-appellee.

Before FORET, YELVERTON and KNOLL, JJ.

YELVERTON, Judge.

In this worker's compensation case defendant, Welex, A Halliburton Company, appeals from a judgment awarding plaintiff, Thomas Clark, supplemental earnings benefits.

Clark was employed by Welex as a dispatcher.His duties included answering the phone and keeping logs, sweeping and mopping the break room, dressing room, dispatcher's office, stairwells and platforms, and helping in the loading and unloading of wireline tools.On April 15, 1985he slipped while mopping the stairs causing him to twist sharply.He caught himself on the stairwell.Thereafter he began to experience back pain and, two or three days after the accident, began to experience leg pain.

The pain progressively worsened.Dr. James McDaniel, an orthopedic surgeon, diagnosed Clark's condition as a herniated disc with left L-5 root injury.A CT Scan confirmed the herniated disc.On May 14 1985, he underwent a laminectomy and a diskectomy.He was discharged from the hospital on May 16.On June 24, 1985, Dr. McDaniel told Clark he could return to light duty work.On December 16, 1985, the doctor told Clark he could return to his duties as a dispatcher, but he warned plaintiff not to participate in jarring types of activities for a year, and advised him not to bend or stand in one position for long periods, and not to do any heavy lifting, or lifting which would require him to be in an awkward position.

Welex laid the plaintiff off in July 1985.He was paid compensation benefits until December 27, 1985.He has not been employed since the accident.At trial Clark testified that he was able to perform all the duties of dispatcher except one: he said he could not load and unload the tools from the trucks.His testimony was that he had to lift tools weighing between 125-500 pounds, and that he had to load or unload on the average of one truck a night.The plaintiff's superiors disputed the frequency of the unloading and the weight of the tools.

After hearing the testimony and weighing the evidence the trial court found that plaintiff was no longer able to perform all of the duties of dispatcher and that he suffered from a partial disability as a result of the accident.The trial court awarded him supplemental earnings benefits under R.S. 23:1221(3).

Welex has appealed raising two issues: 1) Whether it was manifest error to find plaintiff partially disabled, and 2) Whether it was error to award supplemental earnings benefits based upon the fact the plaintiff was not working at the time of trial.

At the time of the accident La.R.S. 23:1221(3) providing for supplemental earnings benefits read in part:

(a) For injury resulting in the employee's inability to earn wages equal to ninety per cent or more of wages at time of injury, supplemental earnings benefits equal to seventy-four percent of the difference between ninety percent of the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis.Average monthly wages shall be computed as four and three-tenths times the wages as defined in R.S. 23:1021(10).

The defendant in its supplemental brief relies on Miller v. Great Southern Oil and Gas Co., 503 So.2d 679(La.App. 3rd Cir.1987) as dispositive of the issues.However, in that casethis court inappropriately applied the clear and convincing test as the plaintiff's burden of proof under R.S. 23:1221(3).Under the new worker's compensation statute the only subsection where the legislature placed the requirement of proof by clear and convincing evidence was R.S. 23:1221(2).Price v. Fireman's Fund Insurance Co., 502 So.2d 1078(La.1987).

To qualify for supplemental earnings benefits under R.S. 23:1221(3)(a)a plaintiff is required to prove by a preponderance of the evidence that a work related injury resulted in his inability to earn wages equal to 90% or more...