Comeaux v. City of Crowley

• Decision Date: 03 July 2001
• Docket Number: No. 2001-C-0032.,2001-C-0032.
• Citation: 793 So.2d 1215
• Parties: Clopha COMEAUX v. CITY OF CROWLEY.
• Court: Louisiana Supreme Court

793 So.2d 1215

Clopha COMEAUX v. CITY OF CROWLEY.

No. 2001-C-0032.

Supreme Court of Louisiana.

July 3, 2001.

Christopher R. Philipp, Lafayette, Counsel for Applicant.

Michael B. Miller, Crowley, Counsel for Respondent.

LOBRANO, Justice Pro Tempore¹

This workers' compensation case has a tortured procedural history spanning over a decade. At this juncture, the sole issue is the employee's disability status. The workers' compensation hearing officer found that the employee was neither temporary nor permanently, totally disabled, and thus, by process of elimination, classified the employee as falling within the supplemental earnings benefits category. The court of appeal reversed and classified the employee as permanently, totally disabled utilizing a totality of factors including "access to employment, physical factors, age, race, literacy, and experience."² We granted certiorari to determine what factors other than physical condition can be considered to determine if plaintiff is permanently, totally disabled.³ Although we reach the same result as the court of appeal our reasoning is more restrictive and is based on plaintiff's unsuccessful attempts at the rehabilitation required by La.Rev.Stat. 23:1226 as well as his physical condition.

Factual Background

The facts are virtually undisputed. In April 1990, plaintiff, Clopha Comeaux, was injured in the course and scope of his employment as a tree grinder with defendant, the City of Crowley. On the date of the accident, plaintiff was working cutting logs at a graveyard when, lifting a log, he injured his back. Unbeknownst to defendant, plaintiff had sustained a previous work-related back injury while employed as a diesel mechanic for another employer in June 1984. As a result of that previous injury, Dr. Michel Heard had performed back surgery on plaintiff in August 1984.

Following the work-related injury at issue in this case, plaintiff returned to Dr. Heard. In his May 1990 report, Dr. Heard made the following remark:

"I told this man he should never go back to doing heavy work. I think this is going to exacerbate his condition and that he should look at doing lighter and sedentary work on a permanent basis ."

Dr. Heard has continued to treat plaintiff for his back injury since then. In his latest report in the record, dated November 15, 1999, Dr. Heard opined: "[t]he patient is unable to work but is encouraged to be as active as possible within the parameters of light and sedentary activities as tolerated." (Emphasis supplied).

Also on November 15, 1999, at defendant's request for an orthopedic medical evaluation, plaintiff was examined by Dr. Gregory Gidman. Based on that one time exam, Dr. Gidman opined that plaintiff had reached maximum medical improvement, that his symptoms had "plateaued" and essentially stabilized over the last five years, that he does not need any further surgical intervention, and that he "does have a serious condition of his lower back that resulted in surgery from a prior workers' comp injury." Dr. Gidman also gave the following recommendations:

[Plaintiff] will have serious restrictions on his activity level. He should function at home and at other activity levels only within the limits of his FCE, which would be extremely light/sedentary work level with maximum lifting of occasionally ten pounds. In addition to the restrictions on the FCE, he should avoid repetitive prolonged maintenance of a forward, stooped position, prolonged and/or repetitive bending, long-lasting unchanged positions, and should avoid work that might require sudden maximum efforts or exposure to continuous vibratory motion. He should also be limited with intermittent sitting, standing and walking.

Defendant provided rehabilitation services to plaintiff through Mark Cheairs, a vocational rehabilitation expert. Rather than seek vocational training, plaintiff opted to enroll in a graduate equivalency diploma (GED) program. After six unsuccessful attempts to pass the preliminary GED tests, plaintiff quit the program. Defendant has provided plaintiff with the statutory maximum of fifty-two weeks of vocational rehabilitation; plaintiff is not entitled to any further rehabilitation services.

Simply stated, over ten years have elapsed since plaintiff's injury, yet he has neither been retrained nor rehired.

Procedural Background

In June 1991, defendant filed a pleading entitled "Petition for Workers' Compensation Offset." The purpose of this filing was to judicially invoke the reverse offset provided for by La.Rev.Stat. 23:1225 A, which allows an employer an offset when an employee is receiving both permanent total disability benefits under the state workers' compensation system and disability benefits under the federal social security system.⁴ To bring this matter within the scope of Section 1225 A, defendant alleged that plaintiff was permanently, totally disabled.

In May 1993, the workers' compensation hearing officer granted defendant's request for a reverse offset, finding plaintiff permanently, totally disabled under La. Rev.Stat. 23:1221(2).⁵ In so finding, the hearing officer reasoned:

The Court's finding of permanent total disability was based on clear and convincing evidence including, but not specifically limited to, claimant's age, lack of education and previous work history coupled with the medical reports and the report of the vocational rehabilitation expert.... In this case, the claimant is a fifty year old male with an eight or ninth grade education. While claimant's treating physician has placed severe restrictions on his ability to work, a vocational rehabilitation expert testified that claimant is vocational unemployable in any occupation . Additionally, claimant's former employer was even unable to find suitable shelter employment for him.

Claimant's treating physician stated that claimant is permanently disabled from heavy and very heavy work on the basis of his pre-existing injury and previous surgery. When one considers the following facts, to-wit: (1) that claimant is 50 years old (2) that claimant has only an eight or ninth grade education (3) that claimant is in constant unrelenting pain (4) that any vocational training claimant has was received over fifteen (15) years ago (5) claimant's previous work history and (6) the testimony of the vocational rehabilitation expert that claimant is unemployable it becomes abundantly clear that claimant is permanently totally disabled from any employment. (Emphasis supplied.)

On appeal, plaintiff successfully argued that the determination of permanent total disability was premature because the hearing officer failed to comply with the requirement set forth in La.Rev.Stat. 23:1226 D, which provides:

Prior to the workers' compensation judge adjudicating an injured employee to be permanently and totally disabled, the workers' compensation judge shall determine whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education. (Emphasis supplied.)

The appellate court thus remanded the case solely for a determination of the type and duration of vocational training plaintiff was to receive pursuant to La.Rev.Stat. 23:1226 D.⁶

On remand, the workers' compensation hearing officer found that plaintiff's option of pursuing a GED, as opposed to vocational training, was appropriate rehabilitation. In so finding, it commented that "[plaintiff] is only able to attend school from three to three-and-a-half hours per day because of the condition of his back." The hearing officer further found that pursuant to La.Rev.Stat. 23:1226 plaintiff was entitled during the period of rehabilitation to receive temporary total disability benefits. The hearing officer, however, granted defendant's request for an offset against such benefits for the social security disability benefits plaintiff was receiving. That offset was based on La.Rev.Stat. 23:1225 C, as construed in Garrett v. Seventh Ward General Hospital, 95-0017 (La.9/22/95), 660 So.2d 841, to apply to temporary total disabled. Neither side appealed that decision.

What precipitated the instant action was this court's decision in Al Johnson Construction Company v. Pitre, 98-2564 (La.5/18/99), 734 So.2d 623, which overruled Garrett, supra.

Relying on Pitre, plaintiff commenced this action in June 1999 asserting that "[e]mployee desires to increase his weekly compensation benefits, as defendants are not allowed a setoff for Social Security benefits received under LSA-R.S. 23:1225(C)." However, even though defendant voluntarily removed the Garrett offset, rendering the issue plaintiff pled moot, it nonetheless answered and reconvened seeking to modify plaintiff's disability status from temporary total disabled to supplemental earnings benefits. Defendant's answer also asserts in the alternative that plaintiff should be classified as permanently, totally disabled so that it can invoke the reverse offset. Plaintiff responded by filing his own request to modify his disability status from temporary total to permanently, totally disabled.

For reasons detailed later in this opinion, the workers' compensation hearing officer, agreeing with defendant, classified plaintiff as falling within the ambit of the supplemental earnings benefits category. However, relying on a "totality of factors" including race, age, literacy, experience as well as physical condition, the court of appeal reversed and classified plaintiff as permanently, totally disabled. Defendant argues the incorrectness of that ruling because of the additional factors considered by the court.

Disability Status

A key to understanding disability status, suggested by a scholar in this area, is to recognize the two, often interwoven, ingredients that make up the disability...