Slade v. State of Louisiana Univ. of Louisiana at Monroe, 46,720–WCA.

• Decision Date: 08 December 2011
• Docket Number: No. 46,720–WCA.,46,720–WCA.
• Citation: 79 So.3d 463
• Parties: Herman SLADE, Plaintiff–Appellee v. STATE of Louisiana through the UNIVERSITY OF LOUISIANA AT MONROE, Defendant–Appellant.
• Court: Court of Appeal of Louisiana — District of US

79 So.3d 463

Herman SLADE, Plaintiff–Appellee

v.STATE of Louisiana through the UNIVERSITY OF LOUISIANA AT MONROE, Defendant–Appellant.

No. 46,720–WCA.

Court of Appeal of Louisiana, Second Circuit.

Nov. 9, 2011.Rehearing Denied Dec. 8, 2011.

Watson, McMillin & Harrison, by W. Michael Street, Monroe, LA, for Appellant.

Street & Street, by C. Daniel Street, Monroe, LA, for Appellee.

Before BROWN, DREW, and MOORE, JJ.

BROWN, Chief Judge.

[2 Cir. 1] In this workers' compensation case, defendant, the State of Louisiana through the University of Louisiana at Monroe (“ULM”), filed this suspensive appeal from a ruling granting summary judgment in favor of claimant, Herman Slade. Slade answered the appeal, claiming error in the denial of attorney fees and penalties. For the following reasons, we AFFIRM.

Facts and Procedural History

There is no dispute that on June 13, 2006, claimant was injured within the course and scope of his employment as director of farm operations at ULM when he stepped in a hole with his right leg and hyperextended his left leg causing damage to his left knee. Thereafter, claimant had three surgeries on the left knee including a total knee replacement. He initially received supplemental earnings benefits (“SEB”) from July 1, 2006, until September 24, 2006. Thereafter, he received temporary total disability benefits ¹ which ended on March 24, 2008, when claimant was released by his physician, Dr. Douglas Brown, to return to work.

While he was on workers' compensation benefits, claimant's employment was terminated. Claimant found work with Southern Seed Supply, but continued experiencing problems with his knees. It is undisputed that claimant was treated by Dr. Brown on multiple occasions. On January 2, 2009, Dr. Brown limited claimant's work activities to [2 Cir. 2] medium-level, which caused him to be unable to perform all of the duties of his employment, which led to a decrease in his income.

Claimant made a claim for SEB from defendant on May 19, 2010, which was denied. On June 15, 2010, claimant initiated the instant proceedings with the Office of Workers' Compensation for SEB and medical treatment to include his right knee. On September 3, 2010, claimant filed a motion for summary judgment. This motion was supported with his affidavit, employment documents and medical records. Defendant, relying on claimant's filings, argued that there were genuine issues of material fact as to whether claimant was able to earn 90% of his pre-injury wage. The WCJ ruled from the bench, granting claimant's request for medical evaluation of his right knee but denying his request for SEB.²

On December 14, 2010, claimant filed what was styled as a “Motion for a New Trial” pointing out an error of law concerning the burden of proof in the denial of the SEB portion of his motion for summary judgment. The WCJ granted the new trial motion, reversed its previous ruling denying SEB, and granted summary judgment in favor of the claimant, although the WCJ denied attorney fees and penalties. Thereafter, defendant timely filed the present appeal. Claimant answered the appeal seeking attorney fees and penalties.

Discussion

Three assignments of error are presented in this appeal. First and primarily, defendant argues that the WCJ erred procedurally in reviewing its [2 Cir. 3] prior ruling denying summary judgment. In addition to the procedural flaw, defendant claims that the WCJ's ruling granting claimant's motion for summary judgment was error because there exists a genuine issue of material fact as to whether claimant is able to earn above the statutorily defined level of 90% of his pre-injury average monthly wages. Finally, claimant in his answer to this appeal, contends that the WCJ's ruling which denied penalties and attorney fees for nonpayment of SEB should be reversed.

Motion for a New Trial

Defendant argues that a motion for a new trial can only be taken from a final judgment and the denial of a motion for summary judgment is not a final judgment. Defendant contends that claimant's only remedy from a denial of a motion for summary judgment is by supervisory writs to the court of appeal. Defendant cites Allstate Ins. Co. v. Mohamadian, 09–1126 (La.App. 1st Cir.02/17/10), 35 So.3d 1118, which was not a workers' compensation case.

La. R.S. 23:1310.8(A) provides, in pertinent part:

The power and jurisdiction of the workers' compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified....

In Falgout v. Dealers Truck Equipment Co., 98–3150 (La.10/19/99), 748 So.2d 399, the supreme court stated:

Usually, once a judgment has become final and definitive, parties are bound by it, regardless of any future change of circumstances. See La. C. Civ. Pro. arts. 1841, 425. Workers' compensation judgments, however, are treated differently from [2 Cir. 4] ordinary judgments. This is due to the fact that if the rules of finality applied to ordinary civil judgments are applied to workers' compensation judgments, the flexibility of the workers' compensation system would be greatly restricted. Landreneau [ v. Liberty Mut. Ins. Co.], 309 So.2d [283] at 284 [ (La.1975) ]. This court has recently reaffirmed the validity of this policy in holding that where the legislature has expressly provided that an award or judgment can be subject to a claim of modification res judicata does not apply. Jackson, 98–1810 p. 9, 732 So.2d at 524.

Falgout dealt with prescription but what was written is instructive:

Theoretically, then, under the concept of workers' compensation, courts ought to exercise perpetual and unlimited jurisdiction to reopen cases as often as necessary to make benefits meet current conditions. 8 Larson's Workers' Compensation Law § 81.10, at 1045 (1998). In Jackson, the court recognized that because the modification statute is to be liberally construed in favor of the claimant the principles of res judicata are at odds with the concept of modification in the workers' compensation arena. 732 So.2d at 524.

When interpreting provisions of the Workers' Compensation Act, the history and policy provisions of the workers' compensation movement must be taken into account. Stelly v. Overhead Door Company of Baton Rouge, 94–0569 (La.12/08/94), 646 So.2d 905. The purpose of the Workers' Compensation Act is to set up a court-administrated system to aid injured workmen by relatively informal and flexible proceedings that are to be interpreted liberally in favor of the workmen. Falgout, supra.

In this case, the WCJ considered that it made a legal error in denying claimant's motion for summary judgment. Claimant pointed out this error through a filing captioned “Motion for a New Trial.” ³ Defendant objected to the motion and the WCJ opined:

[2 Cir. 5] [T]he question that's before me, again, on the motion for summary judgment—and I do find it appropriate to review it under [23:1310.8] and the court's continuing jurisdiction ... I have to reverse my prior ruling in this case because of the absence of evidence presented by the defendant as to why there was a change in salary ...

Allstate Ins. Co. v. Mohamadian, supra, cited by defendant, was not a workers' compensation case and is distinguishable from the case at hand. ⁴ We feel that workers' compensation cases should be treated differently than cases in district court. We also note that if this court were to reverse the WCJ's ruling and remand this case, claimant would still be free to re-urge his original motion for summary judgment.⁵ Such a reversal by this court would not seem to meet the goals of the Workers' Compensation Act by merely further delaying benefits to which claimant is entitled.

Motion for Summary Judgment

The purpose of SEB is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96–2840 (La.07/01/97), 696 So.2d 551; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993). To qualify for SEB, a claimant is required to prove by a preponderance of the evidence that a work related injury resulted in the inability to earn 90% or more of the pre-injury wages. La. R.S. 23:1221(3)(a); Albert v. Trans–Met, Inc., 38,261 (La.App.2d Cir.06/23/04), 877 So.2d 183.

[2 Cir. 6] In any week where the worker is unable to earn at least 90% of his pre-injury wages, SEB will be payable to him, for a maximum of 520 weeks. La. R.S. 23:1221(3)(d)(ii); Dufrene v. Video Co–Op, 02–1147 (La.04/09/03), 843 So.2d 1066. If the worker is able to earn his pre-injury salary in any given week, the employer will not owe SEB, but these weeks will not be counted toward the 520 week maximum time period. Id.

Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra; Caparotti v. Shreveport Pirates Football Club, 33,570 (La.App.2d Cir.08/23/00), 768 So.2d 186, writ denied, 00–2947 (La.12/15/00), 777 So.2d 1230. Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the claim for SEB or establish the employee's earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and the job was offered to the employee, or was available in his or the employer's community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Banks, supra. Actual job placement is not required. Caparotti, supra.

Appellate courts review summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Goins v. Wal–Mart Stores, Inc., 01–1136 (La.11/28/01), 800 So.2d 783; Mackey v....