Murray v. Servall Serv. Inc
| Decision Date | 12 January 2010 |
| Docket Number | No. 09-CA-107.,09-CA-107. |
| Citation | 31 So.3d 436 |
| Parties | Rick MURRAY v. SERVALL SERVICES, INC. |
| Court | Court of Appeal of Louisiana — District of US |
William R. Mustian, III, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
Mark L. Clark, Christopher G. Ayres, Charles G. Clayton, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, CLARENCE E.
McMANUS, WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
In this workers' compensation case, defendant appeals from a ruling of the workers' compensation judge finding claimant to be permanently and totally disabled. For the reasons stated herein, we affirm.
On August 7, 2006, Rick Murray filed a disputed claim for compensation against his employer, Servall Services, Inc. on the basis of a work-related accident which occurred on June 13, 1995. Claimant represented that his wage benefits as a result of this accident were terminated on October 1, 2005 and that he is permanently and totally disabled. He also sought penalties and attorney's fees for the employer's actions in terminating benefits. Servall Services, Inc. answered the claim, disputing claimant's disability status.
This matter was tried on June 18, 2008, and the workers' compensation judge took the matter under advisement. Following the submission of post-trial briefs, the workers' compensation judge rendered judgment on September 17, 2008 finding claimant to be totally and permanently disabled. The court issued reasons for judgment on October 31, 2008. Servall Services, Inc. now suspensively appeals from this ruling.
On appeal, Servall Services, Inc. argues that claimant failed to meet his burden of proving permanent total disability under La. R.S. 23:1221, which provides in pertinent part as follows:
(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 injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability.
* * *
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
98-0938 (La.5/15/98), 719 So.2d 467. The trial court must weigh all the evidence, medical and lay, in order to determine if the plaintiff has met his burden. This factual finding should be given great weight and should not be overturned absent manifest error. Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277, 280 (La.1993).
"Clear and convincing" in the workers' compensation context is an intermediate standard falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard. Hatch-erson v. Diebold, Inc., 00-3263, p. 4 (La.5/15/01), 784 So.2d 1284, 1288.
The parties entered into the following stipulations at trial: that claimant injured his back on June 13, 1995 in the course and scope of his employment; claimant's average weekly wage is $411.30; his compensation rate was $274.20; the employer paid 520 weeks of supplemental earnings benefits through August 18, 2005 for a total of $175,059.81 and $416,044.50 in medical benefits through June 17, 2008 The parties also submitted claimant's medical records, his physicians' reports and depositions, as well as the Functional Capacity Evaluation report submitted by his physical therapist and the reports of the vocational rehabilitation counselors.
At trial, Rick Murray testified that while he was working as a janitorial supervisor for defendant, he sustained an injury to his back while lifting a battery out of a floor buffer. Over the next several years, claimant underwent several back surgeries, including a cage fusion, and that he has been unable to work since the accident. He continues to have severe pain in his back and both legs and feet and he walk with a cane for balance. He also suffers from depression and cannot do anything for any length of time, including sitting, standing or doing household chores. He also has to lie down periodically because his legs and back hurt him. He takes several types of pain medicine daily which causes him to fall asleep easily. He stated he met with a vocational counselor, and applied for the jobs which were suggested but was unsuccessful in obtaining employment. At the time of trial, claimant was almost 50 years of age.
Claimant also submitted the testimony of Louis Lipinski who was accepted as an expert in the field of vocational rehabilitation. Mr. Lipinski testified he met with Mr. Murray on October 16, 2007 to conduct a vocational evaluation and he re- viewed the claimant's history and his medical information. As a result of this evaluation, Mr. Lipinski opined that Mr. Murray was disabled and could not return to any form of gainful employment. Mr. Lipinski testified that Mr. Murray's skills as a crew boat captain were not transferable to obtaining future employment because of his physical injury and because of the long time period since he has held that job. Mr. Lipinski did not call any employers directly to determine if they would consider Mr. Murray for employment, but he reviewed the Department of Labor listings on employment and determined Mr. Murray was not capable of performing the jobs offered. Mr. Lipinski stated claimant did not have the general educational development or the motor skills to be successfully trained to do something that he doesn't already know how to do. Mr. Lipinski did not believe that claimant had the ability to be competitively employed and that he did not believe claimant had the skills to perform the jobs suggested by defendant's vocational counselor. Further, Mr. Lipinski specifically stated that he could not establish with reasonable certainty, giving his advanced age, marginal education, lack of transferability of skills and restrictions to sedentary work, that he would be able to find a job for him.
Claimant also introduced the medical records and deposition testimony of Drs. James Denney, a psychiatrist, and Dr. Robert Fortier-Bensen, a pain management specialist.
Dr. Fortier-Bensen testified that he first saw claimant in 2003 after he had had five surgeries. He stated claimant was not a candidate for further back surgery, and was taking several medications for pain. He prescribed nerve blocks for claimant which only provided temporary relief. In 2007, Dr. Fortier-Bensen ordered a func tional capacity evaluation, and as a result recommended that the claimant met the criteria for sedentary work with certain restrictions. However, Dr. Fortier-Bensen testified that for sedentary work to be possible on a long-term basis, claimant would have to be conditioned. Noting that the functional capacity evaluation is limited to what the patient can do for one day and not long term, Dr. Fortier-Bensen stated as follows:
What I'm thinking is he probably won't be able to do this. So you understand how I generally look at Functional Capacity Exams, is I will generally look and say if a personal can do light work, I go to sedentary. If he's sedentary, then I go to disabled. The reason I do that is because anybody I can give them pain medicines, I can shoot their leg off and give them the paid medication and they'll drag that leg around and get everything done for the day. But for the next four weeks or a month they'll be miserable.
Dr. Fortier-Bensen testified that claimant is at maximum medical improvement and that he will need to take pain medication for the rest of his life. He stated that with injections for pain, claimant could possibly get back to work on a regular frequency. However, Dr. Fortier-Bensen noted that claimant would have to be properly conditioned to sustain any type of long term employment.
Dr. James Denney stated that claimant was referred to him in 2007 by Dr. Fortier-Bensen for an evaluation of his mental status and the appropriateness of his pain management and medication. Dr. Denney found his mental status to be impaired, "probably" to such a degree that he would be incapable of any sort of employment. Dr. Denney deferred to Dr. Fortier-Bensen on claimant's physical capacities, but until his pain were better resolved, he did not think a return to work was probable. He stated that a structured work program would be positive for the claimant's mental state, and would support Dr. Fortier-Ben-sen's opinion of his physical abilities. Dr. Denney also thought that cognitive behavioral therapy should be pursued to assist claimant with coping skills involving his physical condition.
Defendant presented the testimony of Stacie Nunez, who was accepted as an expert in the area of vocational rehabilitation counseling. Ms. Nunez interviewed Rick...
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