Hopes v. Domtar Industries

• Decision Date: 03 November 1993
• Docket Number: No. 93-127,93-127
• Citation: 627 So.2d 676
• Parties: Joshua HOPES, Plaintiff-Appellant, v. DOMTAR INDUSTRIES, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 676

627 So.2d 676

Joshua HOPES, Plaintiff-Appellant, v. DOMTAR INDUSTRIES, Defendant-Appellee.

No. 93-127.

Court of Appeal of Louisiana,

Third Circuit.

Nov. 3, 1993.

David Hugh McCroskey, New Iberia, for Joshua Hopes.

Mark Louis Riley, Lafayette, for Domtar Industries.

Before STOKER, DOUCET and SAUNDERS, JJ.

SAUNDERS, Judge.

Plaintiff-appellant brought this worker's compensation suit against his employer seeking recognition of permanent and total disability or, alternatively, restoration of his temporary total disability benefits and for penalties and attorney fees. At the time of his March 6, 1992, hearing, plaintiff was receiving supplemental earnings benefits. His reduction in benefits followed a neurosurgeon's findings that plaintiff had reached maximum cure and could work in some capacity by June 22, 1989, notwithstanding plaintiff's persistent complaints to the contrary. Judgment was rendered dismissing most of plaintiff's demands. Plaintiff appeals. We affirm in part, reverse in part and render.

FACTS

Joshua Hopes was employed in the Domtar salt mine from 1966 until becoming disabled on December 6, 1983, while handling a fifty (50) pound sack of nitrate. At the time of his injury, the illiterate father of eleven (11) was a powder man whose responsibilities involved placing and charging the various explosive chemicals and devices necessary to extract salt from subterranean geological faces.

As a result of the accident of December 6, 1983, Commercial Union began payment of compensation at the rate of $245.00 per week, the maximum amount payable at that time, based upon plaintiff's average weekly wage of $513.00. These payments were continued until the rate was reduced due to his former employer's conclusion that Mr. Hopes was able to earn minimum wage for forty (40) hours a week. This conclusion was based upon a neurosurgeon's finding that plaintiff's condition had stabilized by June 22, 1989. ¹

Mr. Hopes was initially treated by Dr. LeBlanc of New Iberia. In 1984, surgery was performed on a herniated disc at L3-4 and L4-5. Dr. LeBlanc referred Mr. Hopes to Dr. John Jackson, a Metairie neurosurgeon. Dr. Jackson performed a second surgery in 1987. Still Mr. Hopes' back pain persisted. On May 12, 1988, Dr. Jackson recommended that rehabilitation efforts be commenced. Domtar's compensation insurer, Commercial Union, retained the services of ConservCo to begin Mr. Hopes' rehabilitation. Many jobs were identified by Mr. Robert Hebert of ConservCo based upon Dr. Jackson's evaluations regarding Mr. Hopes' physical condition. Only three of these jobs were approved by Dr. Jackson, each based entirely upon job descriptions furnished by ConservCo, whose representative never met with Dr. Jackson. The company made no efforts to retrain Mr. Hopes.

On June 22, 1989, Dr. Jackson indicated that Mr. Hopes had reached maximum medical improvement notwithstanding Mr. Hopes' persistent complaints of pain. Dr. Jackson acknowledged that Mr. Hopes would never be capable of performing heavy manual labor or straining his back. He imposed additional specific restrictions on Mr. Hopes. Twenty (20) pounds was the maximum he could lift occasionally, but frequent lifting and carrying of objects was limited to a maximum of 10 pounds. In an eight hour day, plaintiff could occasionally bend, stoop, kneel, or reach, but could never climb or pull. Pushing motions were also ruled out, although Dr. Jackson's testimony makes it unclear whether plaintiff could only occasionally or never push during an eight hour work day. As a result of his June 22, 1989, findings combined with Dr. Jackson's approval of Mr. Hopes for the three job descriptions provided him by ConservCo, plaintiff's benefits were reduced to supplemental earnings benefits on October 16, 1990. ²

Not getting better, Mr. Hopes returned to see Dr. Jackson in April and June of 1991 with continuing complaints of pain. On those occasions, Dr. Jackson took X-rays of plaintiff and concluded that Mr. Hopes remained capable of doing light duty work.

When Mr. Hopes again returned to Dr. Jackson on January 20, 1992, CT Scans were taken which objectively revealed for the first time the cause of plaintiff's continuing complaints. Dr. Jackson made a clear finding that hypertrophic changes had developed in plaintiff's back which, according to the doctor's testimony, had indeed rendered Mr. Hopes disabled, which disability had continued since at least April 11, 1991.

On February 20, 1992, one month after discovering his error as to plaintiff's previous condition, Dr. Jackson concluded that surgery could eliminate plaintiff's newly found back troubles and return Mr. Hopes to his June, 1989, status of maximum medical improvement.

Procedural History

Mr. Hopes challenged his October 16, 1990, reclassification to supplemental earnings benefits (as a result of Dr. Jackson's finding of June 22, 1989), seeking to be found temporarily or permanently totally disabled. The matter was heard by a hearing officer of the Office of Workers' Compensation on March 6, 1992. Judgment was eventually rendered decreeing that:

(1) The claimant was properly reclassified from temporary total disability to supplemental earnings benefits on June 22, 1989, the date Dr. Jackson concluded that the claimant's condition had stabilized to a point of maximum medical improvement;

(2) From the period of January 1992 (when Dr. Jackson discussed the hypertrophic spinal changes) through June 1992, Mr. Hopes would be entitled to temporary total disability benefits;

(3) After June 1992, Mr. Hopes would be reclassified again to supplemental earnings benefits unless he elected to have a corrective surgical procedure suggested by Dr. Jackson, in which event he would remain temporarily totally disabled until released by Dr. Jackson;

(4) That no penalties or attorney's fees were due because defendants did not act arbitrarily, capriciously or without probable cause in denying plaintiff total disability based on Dr. Jackson's June, 1989, findings and subsequent approval of the positions scouted by ConservCo.

From this judgment, plaintiff appeals requesting this Court to reverse the ruling of the Office of Workers' Compensation.

EXTENT OF EMPLOYEE'S DISABILITY

The issues before us concern the propriety and timing of Mr. Hopes' supplemental earnings benefits status, first, as a result of Dr. Jackson's June 22, 1989, finding that Mr. Hopes had reached maximum medical benefit, and second, as a result of the hearing officer's findings that plaintiff's anticipated surgery would return him to his June 22, 1989, status of maximum medical benefit.

This appeal concerns the extent of Mr. Hopes' disability under the Louisiana Worker's Compensation Act as amended by Act 1 of the 1st Extraordinary Session of 1983.

"In order for an employee to recover benefits under the Worker's Compensation Statutes of the State of Louisiana he must show that he received a personal injury by way of an accident arising out of and in the course and scope of his employment, and said injury necessitated medical treatment and/or rendered the employee either temporary totally disabled, permanent totally disabled, entitled to supplemental earning benefits, and/or permanent partially disabled. LSA-R.S. 23:1021; 1031; 1203; and 1221."

Alfred v. Mid-South Mach., Inc., 594 So.2d 937, 939 (La.App. 3d Cir.1992). On appeal, there is no dispute that:

Mr. Hopes' reading and writing abilities are extremely limited;

Even with the operation proposed in January of 1992 by Dr. Jackson, plaintiff would be limited forever to light duty work at best;

The claimant's 1983 injuries occurred while he was in the course and scope of his employment.

In addition, there is no question that Mr. Hopes' employer timely paid all medical bills.

Therefore, the dispute solely concerns the nature of the benefits to which plaintiff is entitled. Plaintiff contends that he is permanently and totally disabled; in the alternative, Mr. Hopes assigns as error the hearing officer's removing him from temporary total disability effective June 22, 1989, when Dr. Jackson concluded his medical condition reached a plateau. Defendant concedes that plaintiff's injuries are permanent, but denies that plaintiff's total disability is permanent. The employer argues that plaintiff was only entitled to supplemental earnings benefits at the time his temporary total benefits were terminated because by then Dr. Jackson concluded that Mr. Hopes had achieved maximum medical benefit and was not so disabled as to be precluded from any employment. For this reason, defendant would have us affirm the hearing officer's determination that the claimant was entitled to only S.E.B. status after June 22, 1989 (with the exception of the period between January 20, 1992, when Dr. Jackson detected the latest defect in plaintiff's back, and his discharge from the proposed back surgery, should it occur, or June 1992, whichever is later).

The first logical question therefore concerns whether Hopes was totally disabled, permanently or temporarily, after June 22, 1989, within the meaning of LSA-R.S. 23:1221(1) and (2). The pertinent provisions then in force provided as follows:

(1) Temporary total. For injury producing temporary total disability of an employee to engage in any self-employment or gainful occupation for wages 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 injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.

(2) Permanent total.

(a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when...