Poole v. Guy Hopkins Constr. Co.
| Decision Date | 01 November 2017 |
| Docket Number | 2016 CA 1450 |
| Citation | 233 So.3d 165 |
| Parties | Charles POOLE, Jr. v. GUY HOPKINS CONSTRUCTION CO. and LUBA Workers' Compensation |
| Court | Court of Appeal of Louisiana — District of US |
Michael B. Miller, Crowley, Louisiana, Attorney for Plaintiff/Appellant, Charles Poole, Jr.
Eric J. Waltner, Lafayette, Louisiana, Attorney for Defendants/Appellees, Guy Hopkins Construction Co. and LUBA Workers' Compensation
BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
In this workers' compensation matter, the plaintiff, Charles Poole, Jr., appeals a judgment of the Office of Workers' Compensation ("OWC"), which dismissed Mr. Poole's claim for a modification of his indemnity benefits against defendants, Guy Hopkins Construction Company ("Guy Hopkins") and LUBA Workers' Compensation ("LUBA") (collectively referred to as "defendants"). For the reasons that follow, we affirm the judgment.
The instant appeal arises out of an on-going workers' compensation matter related to an injury sustained by Mr. Poole in April of 2003, while in the course and scope of his employment as a laborer with Guy Hopkins. See Guy Hopkins Construction Co. v. Poole, 2013-2072 (La. App. 1st Cir. 6/6/14), 148 So.3d 14, 16, writ denied, 2014-1371 (La. 10/3/14), 149 So.3d 798. In 2003, Mr. Poole filed an initial disputed claim for compensation, and in 2006 he was awarded temporary total disability ("TTD") benefits, reasonable and necessary medical treatment, penalties, and attorney fees. Id. Mr. Poole underwent two surgeries in connection with the 2003 injury, including a spinal fusion
in 2009.
The 2006 judgment was eventually modified by a September 12, 2013 judgment wherein the workers' compensation judge ("WCJ") granted Guy Hopkins and LUBA's motion to modify Mr. Poole's benefits from TTD to supplemental earnings benefits ("SEBs").1 The September 12, 2013 judgment terminated Mr. Poole's TTD benefits and awarded SEB benefits at the TTD rate of $1,802.66 per month on the basis of a change in circumstances. In particular, the WCJ found that The WCJ found no evidence that Mr. Poole had received medical care from his treating physician since October 4, 2012. The WCJ also ordered vocational rehabilitation services to begin immediately for Mr. Poole. The September 12, 2013 judgment was affirmed in all respects by this court in a previous appeal. See Id. 148 So.3d at 18–19.
The issue of Mr. Poole's benefits was revisited in 2014 when the defendants sought and were granted a motion for summary judgment. In a judgment, signed on February 27, 2014, the WCJ recognized that the SEB cap was exhausted and that no further SEBs were owed to Mr. Poole after February 14, 2014. See La. R.S. 23:1221(3)(d). The 2014 judgment expressly modified all previous judgments, including but not limited to the 2013 judgment. Mr. Poole continued to receive medical benefits and vocational rehabilitation services after the issuance of the February 27, 2014 judgment.
On June 2, 2015, Mr. Poole initiated the disputed claim for compensation at issue in the instant appeal. Mr. Poole asserted that his condition had worsened and that he was entitled to receive permanent total disability ("PTD") benefits. The matter was heard by the WCJ over the course of two days—March 28, 2016 and April 20, 2016. At the close of Mr. Poole's case, counsel for the defendants presented an oral motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(B), which was granted by the WCJ.2
In granting the dismissal, the WCJ found merit in the defendants' assertion that Mr. Poole had failed to prove a change in his condition sufficient to change the category of benefits to which he was entitled, and failed to demonstrate by clear and convincing evidence that he was permanently and totally disabled. Instead, the WCJ observed that "[w]ere supplemental earnings benefits still available to [Mr. Poole], that is the category that he continues to be in." In oral reasons for judgment the WCJ concluded that despite problems with the jobs suggested by the vocational rehabilitation counselor and Mr. Poole's on-going use of narcotic painkillers there were "jobs out there" that Mr. Poole could perform. Further, the WCJ found that Mr. Poole had failed to make any effort to secure employment. Relevantly, the WCJ expressly found that Mr. Poole was not "credible," and explained that Mr. Poole's recent physical complaints were "almost identical" to those he asserted previously in his testimony at the 2013 trial.
A judgment was signed by the WCJ on April 29, 2016, granting the motion for involuntary dismissal and dismissing the captioned matter with prejudice. The judgment provides, in pertinent part:
Mr. Poole now appeals the April 29, 2016 judgment.3
Mr. Poole filed the instant appeal asserting multiple assignments of error to the WCJ's judgment. Generally, Mr. Poole challenges the scope of the judgment as overly broad, the WCJ's finding that Mr. Poole was not credible, and WCJ's failure to find that Mr. Poole had proven a change in condition as well as entitlement to PTD benefits. Mr. Poole alternatively challenges the WCJ's failure to consider his entitlement to TTD benefits or further vocational rehabilitation. Mr. Poole also assigns error to the WCJ's rulings regarding the admission of certain medical evidence at trial and his ability performing a video monitoring job.
Scope of April 29, 2016 Judgment
Louisiana Revised Statutes 23:1310.8 provides, in pertinent part:
B. Upon the motion of any party in interest, on the ground of a change in conditions, the workers' compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers' Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award. [Emphasis added.]
Within the scheme of the workers' compensation law, the concept of modification set forth in La. R.S. 23:1310.8 is unique because it allows a case to be reopened and the award amended after the judgment becomes "final." See Borja v. FARA, 2016–0055 (La. 10/19/16), 218 So.3d 1, 10. In his first assignment of error, Mr. Poole asserts that the April 29, 2016 judgment is overly broad and goes beyond the single issue raised in his amended disputed claim for compensation regarding whether he was entitled to modify his award and receive PTD benefits. In particular, Mr. Poole asserts that the language of the judgment dismissing the "above-captioned matter ... with prejudice" somehow results in the dismissal of his "case," including the WCJ's previous judgments and the determination that he was entitled to receive medical expenses and vocational rehabilitation services related to the 2003 workplace incident.
As noted above, the revision of indemnity awards under the workers' compensation scheme is flexible and open to revision, and review of any award can be initiated by the filing of Form 1008, as was done herein. See Gabriel v. Lafourche Parish Water Dist., 2012-0797 (La. App. 1st Cir. 2/25/13), 112 So.3d 281, 285, writ denied, 2013-0653 (La. 4/26/13), 112 So.3d 848. Further, because medical benefits awards are separate from indemnity awards, there is nothing to prohibit a WCJ from hearing and ruling solely on the issue of indemnity benefits without affecting medical expense benefits. See Roussell v. St. Tammany Parish School Bd., 2004-2622 (La. App. 1st Cir. 8/23/06), 943 So.2d 449, 460, writ not considered, 2006-2362 (La. 1/8/07), 948 So.2d 116.
The scope of the proceeding herein was limited to the claims for change in condition and PTD eligibility asserted by Mr. Poole in his amended disputed claim for compensation as well as the parties' pre-trial statements. The judgment clearly provides that it is granting the motion for involuntary dismissal and dismissing the claim asserted with prejudice as required by La. R.S. 23:1310.8. We find no legal or factual merit in this assignment of error.
Whenever a claimant seeks to modify an earlier indemnity award, he must prove by a preponderance of the evidence that there had been a change in his condition. See La. R.S. 23:1310.8(B) ; Guy Hopkins Construction Co., 148 So.3d at 16. The factual finding of the WCJ as to whether the claimant has demonstrated a change in condition is entitled to great weight and will not be disturbed unless clearly wrong. Guy Hopkins Construction Co., 148 So.3d at 16. Under La. R.S. 23:1221(2)(c), a finding of PTD is only possible if a claimant is unemployed and proves, by clear and convincing evidence, unaided by any presumption of disability that he 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.
The clear and convincing standard requires a party to prove the existence of a contested fact is highly probable, or much more probable than its non-existence. Iberia...
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